Ddegeya Hassan v Uganda (Criminal Appeal No. 36 of 2021) [2026] UGSC 31 (27 July 2026)

This a second appeal from the decision of the Court of Appeat affirming the Judgment of the High Court (Anti-Corruption Division) per Tibutya, J. The background to this appeat is that Safeway Pharmacy (2003) Limited, a pharmaceutical enterprise operated two distinct branches in Kampala known as "Safeway 1" at the Otd Taxi Park and "Safeway 2" on Ben Kiwanuka Street. The appetlant, Ddegeya Hassan, occupied a position of fiduciary trust and administrative authority, as the manager for both branches. This role enabted him to have unfettered access to the manuaI record-keeping systems of the company, such as the cash books, debtors' ledgers, creditors' books, and saLary record sheets. The prosecution case in the High Court as disclosed in the trial court judgment shows that there was a protonged period of alleged systematic m isappropriation of company funds between October 2010 and Juty 2013. The operationat mechanism of the pharmacy relied heavity on manuaI documentation, which the prosecution atleged and proved to the

THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: MUSOKE, MADRAMA, BAMUGEMEREIRE, MUGENYI, KIBEEDI, JJSC) CRIMINAL APPEAL NO. 0036 OF 202'I DDEGEYA HASSAN} ........... APPELLANT VERSUS UGANDA) .....................................RESP0NDENT (Appeal against the of Judgment of the Coutt of Appeal before Justices EM.S Egonda - Ntende, Stephen Musota and Remmy Kasule, JJA in Court ofAppeal Criminal Session Case No. 0011 of 2015 given at Kampala on the Pt of June, 2021) JUDGMENT OF COURT s satisfaction of the tria[ .judge was exploited by the appettant to facilitate embezztement. This was concealed through the manipulation of receipts and the eventuat theft of the company's primary books of account. In mid- 2013 when management, represented by the Managing Director (PW3), ordered a stock-taking exercise the theft came to tight. lnitiatty, the 10 appettant provided a verbal report vatuing the stock at UGX 70 miltion. However, a subsequent physicaI verification supervised by PW3 uncovered a staggering discrepancy: numerous medicine boxes on dispLay were empty, reducing the actual stock vatue to a mere UGX 4 mittion. This discrepancy was compounded by an external demand from Astra rs Pharmacy (U) Limited, which claimed Safeway Pharmacy owed them UGX 69 miltion for suppties. The appellant disputed this claim and committed to resolve the matter in a meeting scheduted for Juty 13,20]3. However, on that materiaI date, the appetlant absconded, taking the workplace keys with him. His subsequent communication was a text message to PW3 where he 20 fatsely claimed that he had departed for Kuwait. This was subsequently exposed as a ruse upon his apprehension within Uganda. The management forcibty re-entered the premises and discovered that vitaI business records had vanished. The High Court construed th is act as one of a detiberate effort to sabotage any impending audit. zs Before the High Court of Uganda (Anti-Corrupt ion Division) KampaLa, presided over by Tibutya J., the appettant was charged with an eight-count indictment under the Anti-Corruption Act, 2009, and the Penat Code Act, Cap 120 and was tried and convicted on aL[ counts. Under Counts l and 2, the appettant was charged with Embezztement 30 contrary to Section 19(b)(iii) of the Anti-Corruption Act, 2009 Count 1 charged the appetlant with theft of company books. Count 2 retated to the misappropriation of funds intended for staff sataries and supplier payments. For each of these embezzlement counts, the court imposed a sentence of eight years' imprisonment 3s Counts 3, 4, and 5 pertained to Forgery under Sections 342 and 347 of the Penat Code Act. These charges arose from the appe[[ant's estabLished act

of forging Astra Pharmacy Receipt No. 1899 for UGX T mittion, Receipt No. 1898 for UGX 3 mitlion, and Receipt No. 030 for UGX 3 miLtion, respectivety. The appettant was sentenced to two years' imprisonment for each forgery count. Correspondingty, counts 6,7, and 8 indicted the appetlant for Uttering FaLse Documents contrary to Section 351 of the PenaI Code Act, specificatty for presenting the aforementioned forged receipts to company management. The triat court imposed a sentence of two years, imprisonment for each of these counts. The High Court directed that aL[ sentences run concurrentty, cutminating rn an effective custodiat term of eight years. Furthermore, the court issued a compensation order requiring the appettant to refund UGX 102,11+6,t+53/- to Safeway Pharmacy (2003) Limited. This quantum was ascertained through a comprehensive audit, inctuding UGX 18 mittion discovered in the appeltant's personaL lmperiaL Bank account and UGX 13 mittion purportedty paid to Astra Pharmacy but never remitted. The judgment of the High Court's was based on application of the rutes of evidence and it particutarly also retied on circumstantial evidence and fiduciary breaches. The court attached significant probative value to the appettant's "flight" fottowing the detection of the stock Loss. Apptying the principle that post-crime conduct is an indicator of guitt. The court found the AppetLant's deceptive text regarding his trip to Kuwait to be a calculated evasion of justice. This was coupled by the simuttaneous disappearance of vital records while the appettant hetd the keys to where evidence coutd be estabtished and ted to the inescapabLe inference of deLiberate conceatment. It was estabLished that the UGX 18 mitlion was traced to the appetlant's personat account. Retying on the testimony of the cashier (PW2), who confirmed depositing company funds into his private account upon his instructions, the triaL judge dismissed the attempt of the defence to ctassify this as a private matter. The diversion of funds by a fiduciary compteted the actus reus ol embezzLement. Regarding the forgery and uttering of false documents, the High Court retied on Astra Pharmacy officials who disowned the receipts presented by the

s appe[[ant, proving the seriaI numbers belonged to entirety different customers. A handwriting expert (pW17) confirmed the signatures were forged. lnvoking Section 105 of the Evidence Act, Cap 43 (Revised Edition 2023), the triat judge he[d that the burden rested on the appettant to exptain his possession of the forged receipts. His faiture to offer a plausibte ro exptanation further confirmed his guitt. The appettant. being aggrieved, appeated to the Court of Appeat. In the Court of Appeat, the amended Memorandum of Appeat has eight grounds cha[Lenging the triaI judge's findings on both taw and fact. ln summary, ground 1 averred that the trial judge erred in hotding that the appettant stote 1s and converted funds to his own use. Ground 2 chattenged the finding that the appellant stole company books of record. Ground 3 contested the forgery conviction, al[eging an erroT in hotding that the appettant forged company documents. Ground 4 chattenged the conviction for uttering fatse documents, asserting a Lack of cogent evidence. Ground 5 alleged an error zo in betieving "weak and contradictory" evidence from company directors, white Ground 6 attacked the court for basing the embezztement conviction on an "incompetent" audit report. Finally, ground 7 challenged the eightyear sentence as "harsh and excessive," and Ground I contested the refund order on the basis that there was no evidence of personaI benefit. zs At the Court of Appeat hearing, the appeltant's counse[ elected to abandon Grounds 5 and 6, focusing substantivety on the findings of theft and the severity of the sentence. The Court of Appeat subjected the evidence on record to fresh scrutiny on the basis of duty of first appeal re-appraisa[ estabtished in Kifamunte Henry v Uganda (Crimindl Appeal No. 10 of 1997) 30 fi998J UGSC 15 (Kifamunte Henry v Uganda) and Pandya v R fi957J EA 336 (Pandya v R). fhe Court of Appeat dismissed atl remaintng grounds, affrrming that the circumstantial evidence regardtng the missing records and the appettant's ftight was "consistent with wrongdoing." lt uphetd the apptication of Section 105 of the Evidence Act regarding the forged Astra 3s receipts. Finatty, the Court of Appeat declined to interfere with the eight- 5 year imprisonment sentence on the ground that it was a lawful and appropriate sentence for the gravity of the economic crime. The appettant was further aggrieved by the confirmation of his conviction and sentence by the Court of AppeaL and Lodged a second appeaL to the Supreme Court of Uganda. First, that the Justices of Appeat erred in law by hotding that the appeLtant stote the embezzled funds and converted them to his own personal use. Second, the learned Justices of the Court of Appeat erred in law when they hetd that the Appettant stote company books of record which he had access to by virtue of his emptoyment as manager in the Company. Third, that the learned Justices of the Court of Appeal erred in law when they heLd that the appeLtant forged documents of the Complainant Company. Fourth, that the Learned Justices of the Court of Appeal erred in law when they hetd that the appettant uttered false documents without any cogent evidence on record. Alternatively, Fifth, that the learned Justices of Appeat erred in law when they faited to direct that at[ sentences passed against the appellant shoutd run concurrently. Sixth, that the tearned Justices of the Court of Appeat grossly erred in law when they ordered the appeLlant to refund the embezzled funds without evidence that the appettant converted the funds to his personaI use. Representation At the hearing of the AppeaL, the Appettant was represented by Learned counsel Mr. Andrew Sebugwawo appearing on state brief whi[e the Respondent was represented by the learned Chief State Attorney Ms. lnzikuru Gtoria. Both counsel retied on their written submissions and judgment was reserved on notice. Consideration of the apPeat Before we detve into any grounds, we have deemed it necessary to estabtish the jurisdiction of the Supreme Court in this matter as it is a second appeal in non-capitat criminal proceedings. Secondly do the grounds relate to "matters of Law onty"? In the written submissions, the Respondent's counseL

5 addressed the court on matters of evidence and concluded that the Court of Appeat discharged its duty in reappraisaI of evidence. The question as to whether the appeal is on a matter of Law shoutd be answered by basing on a statutory interpretation of Section 5 of the Judicature Act. This is because the determination of the six grounds requires a clear guide as to whether they relate to matters of Law onty. Section 5 of the Judicature Act, Cap 16 (formerty Cap 13), is the uttimate gatekeeper of the Supreme Court's appellate jurisdiction. lt provides in subsections 2 and 3 that:

(2) Subsection (1) shatL appty with necessary modifications to an appeat to the Supreme Court from a conviction and sentence or acquittat in the case of an offence not punishable by a sentence of death, in respect of convictions and acquittats by the High Court and the Court of Appeat; except that in any such case, an appeat shatl. lie on a matter of law on[y. (3) ln the case of an appeat against a sentence and an order other than one fixed by Law, the accused person may appeat to the Supreme Court against the sentence or order, on a matter of [aw, not inctuding the severity of the sentence. Section 5 establishes a duat appettate system based on the gravity of the offence. Under Section 5(1), in capitat matters (offences punishable by death), an appeat ties to the Supreme Court as of right on a "matter of law or mixed Law and fact." However, Section 5(2) enacts a starkly restrictive standard for non-capital offences, such as embezzlement and forgery, dictating that an appeaL shatt Lie "on a matter of law on[y'" Furthermore' Section 5(3) stiputates that appeats against sentences or orders may only be entertained on a matter of taw, "not inctuding the severity of the sentence." To property navigate Sections 5(2) and 5(3), one must categoricaLty differentiate between a true "point of taw onty" and a "mixed question of Law and fact. " A "point of taw onty" strictly pertains inter alia lo statutory interpretation' the apptication of LegaL principtes, jurisdictionaI boundaries' or

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constitutional compliance, such as to Article 23 (8) on taking into account the remand period in assessing a custodiaI sentence. The House of Lords in their persuasive decision in Edwards (lnspector of Taxes) v Bairstow and Another fi955J 3 All ER 48 criticatty defined what a question of Law or "matter of Law" is. ln that decision, they sought to define how to go about establishing whether a matter is a matter or law or fact from the phrase whether an "adventure was tn the nature of tradd' for purposes of taxation. House of Lords decision in Edwards (lnspector of Taxes) v Bairstow and Another 119551 dea[s with the jurisprudentiaI prob[em of how an appeltate court, whose statutory jurisdiction is strictty confined to hearing appeaLs on "questions of law onLy," can exercise supervisory contro[ over a Lower tribunal whose factuat inferences appear manifestly wrong. Viscount Simonds and Lord Radcliffe set out compLementary principLes regarding the demarcation between matters of Law and matters of fact, and we set out how this dichotomy dictates the boundaries of appettate jurisdiction. Viscount Simonds approached the law-fact divide by deconstructing the anatomy of judiciat reasoning, specificalty demarcating empiricat findings of fact from statutory interpretation and application. There are facts which are not in dispute and facts which may be inferred. Viscount Simonds hightighted the necessity of distinguishing between "primary facts" (the objective, empirical events established by evidence, such as the purchase, modification, and sale of the spinning plant) and the subsequent "inferences" drawn from those facts (the uttimate conctusion as to whether the transaction was an "adventure in the nature of trade")' Firstty, Viscount Simonds noted that determining the legaL characteristics of a statutory phrase is unequivocalty a question of [aw' lt is the exclusive province of the courts to articuLate the meaning, scope, and legat criteria of statutory tanguage (e.g., defining what conceptuatly constitutes a "trade")' Secondty, when a tribunaI appties the primary facts to the statutory criteria' the resutting conclusion is conceptuatly an inference of fact However'

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5 Simonds estabtished that this ctassification is condrtional: it reties upon the fundamental assumption that the tribunal was "rightty directed in taw.,, lf the tribunaI operates under a ftawed tegaL definition, its subsequent factuaI inference is inherentty corrupted by tegal error. ThirdLy, Viscount Simonds articulated the exact threshotd at which an ostensibty factuaL inference becomes reviewabte as a matter of taw. A finding of fact may be set aside if it appears that the commissioners have "acted without any evidence or on a view of the facts which could not reasonably be entertatned." Where primary facts Lead irresistibty to one conclusion, but the tribunal reaches the opposite, the court must deduce that the tribunat misunderstood the statutory Language. The irrationatity of the factual inference constructively amounts to a misdirection in [aw. Per Lord Radctiffe focused on the conceptua[ [imits of statutory tanguage, the spectrum of reasonableness, and the doctrine of ludiciaI restraint. Firstly, Lord Radctiffe observed that the law rarely supplies an exhaustive, precise definition for comptex commercial terms [ike "trade." lnstead, the law marks out the conceptual limits or boundaries within which it is permissib[e to ctassify a set of facts. Determining the meaning to be given to the words of the statute and establishing these tegat timits is a question of [aw. Secondty, lf the primary facts of a case fatl squarety within the permissibte LegaI boundaries-mean ing the facts are "fairly capabte of being so described" either way-the issue is reduced to a "question of degree." Lord Radcliffe asserted that questions of degree are purely questions of fact. lf reasonable minds coutd differ on whether the facts constitute a trade, the tribunal's determination cannot be deemed erroneous in point of taw. Thirdty, an appeLtate court's jurisdiction is unambiguously triggered if the tribunal's written case contains a statement lhat is ex facie bad taw (e.9 , expticitty stating the transaction was not a trade sotety because it was "an isotated case"). However, Radctiffe expanded on how to hand[e cases where

s 5 the tribunat's stated LegaL rationate appears sound, but its uLtimate conctusion is inexpticabte. Fourthty, Lord Radcliffe formutated the definitive standard for identifying a constructive error of [aw. Even without an expLicit misconception appearing on the record, an error of Law is estabtished il "the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determlnation under appedl "He conceptuaLized th is as instances where the true and only reasonabte conctusion contradicts the tribunat's determination. Fifthty, when the "true and on[y reasonable conctusion" is contradicted, the appetlate court "has no option but to dssume that there has been some misconception of the lay and that this has been responsible for the determination." Because a rationa[[y functioning tribunat apptying the correct [ega[ test cou[d not have reached such a contradictory factuaI conctusion, the error of fact is jurisprudentiatly transmuted into an error "in po int of [aw." Where a statute confers a right of appeal to a court strictly limited to "questions of law onty," the principles from Edwards v Bairstow serve as persuasive criticaI mechanism for determining whether the court possesses the jurisdiction to hear the matter and intervene. The .iurisdictionat paradigm operates as foltows: The statutory restriction acts as a strict jurisdictional bar against courts acting as a "second opinion" on factuaI matters. As Lord Radctiffe emphaslzed, courts must respect the tribunat's primary fact-finding rote. lf the lower tribunal correctly interprets the statutory [imits and is simpty weighing primary facts in a borderline case (a matter of degree), the appetlate court is fundamentatty deprived of jurisdiction. lt cannot interfere merety because it woul.d have weighed the evidence differentty lf the dispute centres on the definition of the statutory words themse[ves, or if the tribunal's reasoning reveats a direct contradiction of estabtished tegal principtes (ex facie error or error apparent on the face of the record),