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

5 10 20 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 25 30 15 1 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 2 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 10 15 20 25 30 3 35 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 eight- year 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 10 15 20 25 30 5 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 10 15 20 2S 30 35 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' 10 15 2A 30 7 35 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 10 15 20 25 30 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), 10 15 2A 25 30 9 3s s the matter is a ctear question of taw. The appettate court is immediatety vested with futl statutory lurisdiction to hear the case, correct the tegal interpretation, and substitute its judgment. The most profound jurisdictionat impact of Edwdrds v Bairstowlies in how it overcomes the statutory restriction in cases of egregious factual error. ro By establishing that severe irrationaIity in fact-findrng is inherentty symptomatic of a misunderstood LegaL test, Simonds and Radctiffe provided appeltate courts with a Legitimate jurisdictronaI bridge. The court bypasses the statutory restriction on factuaI appeats by tegatly defining an utterty unreasonabte inference of fact (one that faits the "true and onty reasonable 1s conclusion" test) as an error "in point of [aw." To estabtish whether a matter is [aw or fact under Edwards v Batrstow one must ask the question: ls the tribunal defining the statutory parameters, or merely applylng them?Defining the parameters is a matter of taw. apptying them is a matter of fact. 20 However, for the purposes of appeLlate jurisdiction, if a tribuna['s apptication of facts is so objectivety perverse that it defies LogicaL expLanation, the taw dictates that the tribunat musthave misunderstood the statutory parameters. At that threshotd of unreasonableness, the matter ceases to be an unreviewabte question of fact and crystatlizes into a 2s reviewabte question of Law, thereby commanding the jurisdiction of the appetlate court. The Supreme Court of Uganda has in many ways articutated the same principles in some measure. As hetd in Bogere Moses & Kamba Robert v' tJganda (Criminat Appeal No. I of 19?7) fi998J UGSC 22 (Bogere Moses v' zo t-lganda), a total absence of evidence to support a finding of fact etevates a factuat dispute into an error of taw. The Court stated that' Needless to say that faiture by a flrst appettate court to evaluate the materidl evidence as a whole constitutes an error in /a,l Simitarty, retying on the precedents of Pandya v. R and Kifamunte Henry v L/ganda, a total failure by a first as appeltate court to evatuate the materiat evidence as a whoLe constitutes an actionabte error in [aw. However, wheTe a finding of fact is supported by 10 5 credibte evidence, it cutminates to a finding that the court has no jurisdiction to interfere. Conversety, a "mixed question of Law and fact" arises when an appellate court is invited to determine whether a specific, estabtished set of facts satisfies a legaI standard (e.9., evatuating whether circumstantiaL evidence 10 meets the threshold of "proof beyond reasonabte doubt" or amounts to "conversion"). Under the strict wording of the Judicature Act, the Supreme Court is statutoriLy barred from entertaining pure questions of fact or mixed questions of law and fact in non-capital proceedings and must defer to the concurrent findings of the lower courts unLess those findings are 1s demonstrabty perverse (See Kifamunte Henry vs Uganda). ln Kifamunte Henry vs lJganda lfie Supreme Court, having estabtished that the Court of Appeal re-evaluated the evidence and subjected it to exhaustive scrutiny, the Supreme Court inter alia stated that.' Once it has been established that there was some competent evldence to support a 20 finding of Fact, it is not open, on second appeal to go into the sufficiency of that evidence or the reasonableness of the finding. Even if a Court of first instance has wrongly directed itself on a point and the court of first appeltate Court has wrongly held that the trial Court correctly directed itselt yet, if the Court of first appeal has correctly directed itsetf on the point, the second appellate Court cannot take a different view R Mohamed 2s Atl Hasham vs. R (1941) I E-A.C.4.93. 0n second appeal the Court of Appeal is precluded from questioning the findings of fact of the trial Court, provided that there was evldence to support those findings' though it may think it possible, or even probable' that it would not have itself come to the same conclusion,' it can only interfere where it considers that there was no evidence to support 30 the findlng of fact, this being a question of law: R vs Hassan bin Said (P42) 9 EA C.A' 62. ln Peters vs Sunday Post Ltd fl958) 1 EA 424 the East African Court of Appeat cited with approvat the House of Lords decision in Watt Vs Thomas I94?) 1 ALL E.R. 582, per Viscount Simon LC said at pp 583 - 584 that: // 3s there is no evidence to support a particular conclusion (and this is really a question of law) the appeltate court will not hesitate so to decide 11 5 Wnile Kifdmunte altowed in its context of a capitaI offence matter, the consideration of mixed fact and [aw, section 5 (2) of the Judicature Act does not. lt onty atlows for consideration of matters of law only. On the harshness of sentence, a definitive doctrinat framework for interpreting Section 5(3) has been articulated in the separate judgment of the court and we make particutar reference to the separate judgment of Madrama JSC in Wncent Ssenyonjo v. lJganda (Criminal Appeat No. 58 of 2020) [2025J UGSC 3? (Vincent Ssenyonjo v. Uganda). The judgment was an undertaking of a rigorous statutory interpretation effort rooted in the ptain and ordinary meaning of words and strict grammaticaI construction. ln terms of severity of penalty there is emphasis on the critical role of punctuation "The comma immediatety before 'not inctuding the severity of the sentence' is crucial. The significance of the phrase ts that it is a restrictlve clause that directly modlfies and timits the preceding phrdse 'on a matter of law."'This strict textual approach ensures that the comma unequivocatly exctudes any grievance regardrng severity from the ambit of any legaI question. Cruciatty, the court recommended a cautionary approach so that it can scrutinize and detect the substance of the ground of appeal from the form to unmask disguised appeals on mixed questions of fact and law The drafting of grounds of appeal can be an exercise in semantic gymnastics where learned counsel may frame factuat grievances or pteas for Leniency as eTrors of taw (e.g., atLeging " inconsistency, " "[ack of uniformity"'or "faiture to direct"). We are cautioned to pierce the veit of the pteadings to examine their true essence. According to Btack's Law Dictionary' "severity" is "the degree of sternness, harshness, or austerity "lt a ground of appeat' regardLess of its tegaL phrasing, inherentty seeks to chattenge the comparative harshness of a penatty or the structuraL austerity of the punishment, it is a comptaint on severity and is absolutety barred for want of jurisdiction. 0r where it is phrased in such a way as to state an error of Law but requires the court to assess the evidence' it shoutd be examined to see whether there was credibte evidence on which the lower courts reached a finding of fact. 10 15 20 25 30 35 12 We have therefore criticatty examined the six grounds of appeal using the stringent jurisdictionat fitters of Section 5(2) and Section 5(3), and it discloses profound jurisdictionaI incompetence across the entirety of the a p pea[. Ground'l provides that the court erred in law in hotding that the appetlant stole the embezzled funds and converted them to his own personal use. ALthough prefaced with the phrase "erred in Law," this ground is a direct chattenge to the triat court's factual inferences regarding lhe actus reus of embezzlement. Whether the appet[ant converted the funds is a factuaI conclusion derived from the comprehensive audit report and the tracing of UGX l8 mitlion to his personat lmperiat Bank account via the cashier (PW2). To determine if this hotding was erroneous, the Supreme Court would have to re-weigh the evidence and ascertain if it met the Legat definition of conversion-a classic mixed question of law and facl Because the Court of Appeat duty performed its re-appraisaI duty under Kilamunte Henry v. Uganda, Seclion 5(2) bars the Supreme Court from substituting its own factuaI inferences. Ground 2 provides that the Court of Appeat erred in Law in holding that the appetlant stote company books of record which he had access to by virtue of his emptoyment. This ground chattenges the lower courts' reliance on circumstantial evidence, specificatty, the appeltant's flight with the workpLace keys, his deceptive text message regarding Kuwait, and the simuLtaneous disappearance of the tedgers. Drawing inferences of guitt from primary facts is a factual exercise. Untess the appetlant can demonstrate a compLete evidentiary vacuum (Bogere Moses v. lJganda)' or that there is no credibte evidence to found the f inding of fact, the argument remains a factual dispute disguised as a legal error' lt offends Section 5(2) and must be dismissed' Ground 3 is that the learned Justices of the Court of Appeat erred in law in hoLding that the appettant forged documents of the Complainant Company' 10 15 2A 25 30 13 s The forgery conviction was anchored on forensic and witness testimony. A handwriting expert (PWl7) testified that the signatures on Astra Pharmacy receipts did not match the known signatures of the Astra accountant (PWl6). Furthermore, Astra officiaLs proved the serial numbers betonged to different customers. Chattenging this hotding requires the Supreme Court 10 to assess the credibitity of the expert witness and the supplier's representatives. Evidentiat credibitity is a pure question of fact, ptacing this ground entirely outside the purview of a second appellate court restricted to points of law onty. Ground 4 is that the learned Justices of the Court of Appeat erred in Law in rs holding that the appeltant uttered fatse documents without any cogent evidence on record. The appetlant's deliberate inclusion of the phrase "without any cogent evidence" is a strategic attempt to invoke the "no evidence" rule from Bogere Moses v. uganda. However, "cogency" speaks to the weight, quaLity, 20 and persuasiveness of evidence, not its absotute absence. The record ctearly demonstrates that evidence did exist PW4 (Hakim Mugabi) testif ied that the appeLtant personaLty handed him the forged Astra receipts Because evidence was present, evaluating its "cogency" is strictly a factuaL inquiry and semantic dressing cannot circumvent statutory limits This zs ground is tegatty incompetent under Section 5(2) Ground5whichisinthealternative.Theappetlantaverredthatthelearned JUsticesoftheCourtofAppeat,erredintawwhentheyfaiLedtodirectthat aL[ sentences passed against the appettant shouLd run concurrentty' This ground faits. Factualty. the High Court order is as fo[[ows: 30 Considering att that I have said, I have sentenced the accused as foltows: (1) He witt serve 8 years in prison on each counts 1 and 2' (2) He witt serve 2 years in prison on each counts 3 to 8' The sentence shatl run concurrentlY (3) He is ordered to refund the 102,146'453/= to company " 14 The expticit ground of appeaI in this court is that; Ihe learned Justices of the Court of Appeal erred in law, they farled to dtrect that all sentences against the Appellant should run concurrently.fhe crux of the ground is the faiture to direct the sentences to run concurrently. Ctearty sentence No.2 quoted above was ordered to run concurrentty. The order is silent about sentence No. l which are the two 8-year sentences (for embezzlement). When the appettant appeated to the Court of Appeat, he averred in ground 7 that: fhe barned trial Judge grossly erred in law and fact when she sentenced the appeltdnt to l0 years' imprisonment. A sentence which is unduly harsh and excessive in the circumstances of the case. CLearly the appeltant did not consider the sentence of 8 years each to be cumulative and the issue being raised in this court in a subtte way is an appeal against the severity of the penatty because the sentences of two years' imprisonment each were expressty stated to run concurrently. The Court of AppeaL uphetd the triaI court's decision in its entirety, affirming that the triat judge appropriatety weighed the mitigating and aggravating circumstances. The appetlant now seeks to invoke the jurisdiction of the Supreme Court, raising the expticit ground that the tearned Justices of the Court of Appeat erred in taw by failing to direct that alt sentences run concurrentty' ls there any duty to direct that sentences run concurrently? We have to determine from the current law and precedents what the Iaw and practice is regarding judiciat sitence on the execution of muttipte sentences in terms of whether it shoutd be served concurrently or consecutiveLy and whether the sentence of the High Court was LegaLty vague. We need to estabLish whether there are any exceptionaI circumstances under which an appeltate court may lawfuLty interfere with cumuLative (consecutive) sentences' Finatty' the core question is whether the appeltant's explicit ground of appeat is barred by the jurisdictionat Limits of Section 5(3) of the Judicature Act' The in it iat Legat inquiry is whether the triaL judge's faiture to expticitty decree the mode of execution for Counts l and 2 rendered the sentence vague' and what the law provides regarding such sitence' 10 15 20 25 35 15 30 s The sentence pronounced by the High Court can be described as ambiguous onty because it seemed to have misted the appettant, the prosecution, and the Court of Appeat into erroneously catcutating an effective term based on an assumption of concurrency. However, this seemed mere oversight rather than the tanguage. ln Rwabugande Moses vs. Uganda Criminal n Appeal No. 25 of 2014 (2017) UGSC I (hereinafter Rwabugande), the Supreme Court of Uganda cautioned judiciat officers against the "vagueness of the pronouncement" in sentencing with particutar reference to apptication of article 23 (8) of the Constitution, noting that triaI courts must be transparent and rationalty justify their sentencing execution on the rs record so that the convict understands exactty how their period of imprisonment is being accounted for. HoweveT, white it seemed to have been misunderstood, the sentence is not tegatly vague or void. JudiciaL siLence on whether a sentence is concurrent or consecutive does not create a void that resolves in favour of the accused; 20 rather. it activates a clear statutory defautt. Section 3 of the TriaI on lndictments Act Cap 25 (Revised Edition 2023) governs the sentencing powers of the High Court on several counts in the same triat lt provldes generaLty that sentences are cumulative untess otherwise ordered: 3. Sentencing powers of the High Court. zs (1) The High Court may pass any tawful sentence combininq any of the sentences which it is authorized by law to pass. (2) Where a person is convicted at one triaL of two or more distinct offences' the High Court may sentence him or her for those offences to the seve'al punishments prescribed for them which the court is competent to impose' those 30 punishments, when consisting of imprisonment' to commence the one after the expiration of the other, in such order as the court may direct' untess the court directs that the punishments shat[ run concurrentty' Section 3(2) expticitLy provides that where a person is convicted at one tria[ oftwoormoredistinctoffenses'thepunishmentSconSistingof 3s imprisonment shaL[ commence "the one after the expiration of the other' in 16 s such order as the court may direct, untess the court directs that the punishments shatl run concurrentLy." The Supreme Court strictly interpreted this provision in Magala Ramathan v L)ganda (Criminat Appeat No. I of 2014) [2017J UGSC 34 (20 September 2017) (hereinafter Magala Ramathan).ln Magala Ramathan, the Court hetd that a ro directive for concurrent sentencing is the exception, and the High Court's sitence or tack of an explicit concurrent order effectively and tegatty mandates consecutive service. This position was recently reaffirmed in Gabiri v lJganda (Criminat .Appeal 80 of 2018) [2024J UGSC 46 (12 December 2024) (hereinatler Gabiri), wherein the Supreme Court ruted that ludiciat rs sitence definitively triggers the consecutive execution of imprisonment sentence on each count. ln tight of this statutory framework and the precedents, it is inaccurate to state that the resutting effective term of imprisonment for Counts 1 and 2 is eight years. By strict operation of Section 3(2) of the Trial on Indictments 20 Act and the precedent in Magala Ramathan, the High Court's sitence regarding the two eight-year teTms equates to a consecutive sentence, totatling an effective basetane of sixteen years for the embezzLement counts. The question remains as to whether the Supreme Court possess the 2s inherent supervisory power to interfere with cumulative sentences However, such interference is executed sparing[y and onty under specific tegat doctrines to prevent a miscarriage of justice: Court can interfere whether the counts were sptit merely to enhance a sentence based on the same transaction When muttipte offenses are 30 committed in the course of a singte criminal enterprise, connected by proximity of time, continuity of action, and purpose, they form part of a single transaction. As hetd in 1dele Patrick v Uganda (Criminat Appeat No' 85 of 2018) 12022) UGCA' 11 (hereinafter Odele Patrick' punishing distinct counts that form part of the same transaction consecutivety amounts to an 3s error in principte. ln such scenarios, appeLtate courts wi[[ substitute consecutive terms with concurTent ones' However' as clarified by the 17 5 10 15 20 25 30 Supreme Courl in Gabiri, the "same transaction" rule is overridden if the muttiple offenses invotve distinct victims or infringe upon different Legatly protected interests. ln the present case, where the offenses of embezzlement reLate to different transactions but against a sing[e corporate entity, the same transaction doctrine can be doubted as they were committed on different dates invotving different amounts Generatty, appettate courts may interfere to ensure that the aggregate sentence is just, proportionate, and not "crushing." Under the precedent estabtished in Kiwatabye versus lJganda (Criminal Appeal No. 143 of 2001) (hereinafter Kiwatabye), an appettate court wi[[ intervene if a trial court's exercise of discretion results in an aggregate sentence that is so high as to amount to a miscarriage of justice. However, the question remains whether such an appeal is not against the tegatity but the severity of the penatty. Despite the substantive grounds for concurrency under the Totatity and Same Transaction principtes, the appeLtant faces an insurmountable procedurat hurdte at the Supreme Court. The crux of the appetLant's qrievance rs that the Justices of the Court of Appeal "erred in Law" by failing to expticitty order the sentences to run concurrentty. During the Court of Appeat proceedings, the appettant expticitty averred in Ground 7 of his memorandum of appeal that the sentence of l0 years was "unduty harsh and excessive." The Court of Appeat evatuated the tria[ .iudge's consideration of the mitigating and aggravating factors and uphe[d the sentence as aPProPriate Section 5(3) of the Judicature Act imposes a strict JUrisdictionaL bar on appeats to the Supreme Court in non-capitat offences that fundamentally chatlenge the severity of a tawfutty imposed penalty ln Vincent Ssenyonjo v Ugaida, (supra), 1deke 2 1thers v tJganda (Criminal Appeal 63 of 2019) 2025 UGSC 16, and Adupa v LJganda (Criminat Appeal 8t of 2020) 2024 UGSC 42 (21 October 2024) it was variously estabLished that arguments seeking a more Lenient sentencing structure are inherently arguments about the comparative severity of the sentence' Because the 8-year sentence is completety tegat and wett below the lA-year statutory maximum for 18 5 embezztement, the Supreme Court lacks jurisdiction to entertain comptaints regarding its phrasing or austerity. Because the imposition of consecutive sentences is the LawfuI defau[t under Section 3(2) of the TriaI on lndictments Act, the Court of Appeat did not commit a perse Legal error by atlowing the statutory presumption to remain undisturbed. By introducing the "failure to direct the sentences to run concurrentty" as an error of taw, the appettant is presenting a subtte, disguised appeal against the severity of the penatty. The choice between consecutive and concurTent sentencing is a matter of judiciaI discretion, and in this instance, a statutory default. Seeking a structural. review to guarantee a lesser penal term directty offends the Section 5(3) bar. Thus, we are lega[ty bound to dismiss this ground on jurisdictiona[ [imits, as it constitutes an impermissibte attempt to bypass the statutory restriction on appeating against the severity of the sentence. ln conclusion on the effect term and any vagueness, the sentence of the High Court was si[ent on the execution mode for Counts l and 2' Under Section 3(2) of the Triat on Indictments Act Cap 25 and the binding Supreme Court precedent in Magata Ramathan, this judiciat sitence tegatly defaults to consecutive sentences. lt is therefore tegalty inaccurate to assume the effective term is eight years; the statutory effective term for Counts 1 and 2 is sixteen years. White functionaLty confusing and contrary to the transparency advocated in Rwabugande' the sentence is not legalty vague due to the automatic operation of the statutory defautt' To avoid m isapprehension, Judges shoutd specify in the order whether any sentence shatt be served concurrentLy or consecutivety despite the statutory defauLt position for consecutive serving of sentences for muttipte count convictions The Court of Appeal, in sentences for non-capital offences can interfere with cumutative sentences where there is a clear error in principte (odele Patricl4 or where the totatity of the aggregate sentence is manifestLy excessive (KiwalabYe). 10 15 20 25 30 35 19 s The appetlant's current ground 5 of the appeat is fundamentally an attack on the quantum and severity of the punishment. Because the trial court's impLicit imposition of consecutive sentences was lawfuL, seeking a concurrent directive to Lessen the term fatls squareLy within the jurisdictional bar of Section 5(3) of the Judicature Act. The Supreme Court ro Lacks the jurisdiction to hear appeats chattenging the severity of a sentence confirmed by the Court of Appeal, rendering the appeltant's attempt to use structuraL ambiguity to seek [eniency statutori[y barred. Ground 6 the appeltant averred that the Court of AppeaL grossty erred in taw in ordering the appetlant to refund the embezzled funds without 1s evidence that the appeltant converted the funds to his personal use. This ground attacks the compensation order of UGX 102,146,453/-. Section 5(3) expressly appties to appeats against "orders." The appeltant's contention that there was "no evidence" of personaI conversion is factua[Ly inaccurate, given the funds traced directty to his lmperiaI Bank account and 20 the unremitted Astra Pharmacy payments of about UGX. T0M Because the factual nexus of the toss was estabtished through the audit by PWs and affirmed by the Court of Appeat, the issuance of the refund order was Legatty grounded on credibte evidence on the record. Attempting to chatlenge the evidentiary basis of the established facts is a mixed question of Law and zs fact, which is .jurisdictionatly barred. ln the finat anatysis this court reaffirms the finatity of the Court of Appeat decisionsonmattersoffactandsentencingdiscretioninnon-capitat proceedings. The strict apptication of Section 5 of the Judicature Act' as itluminated by the strict statutory interpretations in Vincent Ssenyonjo v. zo lJganda and the guiding precedents of Bogere Moses v Uganda and Kifamunte Henry v. Llganda, ensures that the apex court remains a poticy Court dedicated to the evolution of jurisprudence rather than a perpetual venue for factuat re-Litigation. Uttimatety, atL six grounds of appeaI faiI to cross the strict jurisdictionat threshotd The concurrent findings affirming 3s the appeltant's fiduciary breach and the subsequent misappropriation of Safeway Pharmacy's funds stand insutated from further review' seaLing his 5 tiabiLity under the [aw. we accordingty dismiss the appeal for want of jurisdiction. n< K Dated at Kampata thel-f iJay of Juty 2026 EItzabeth Musoke, Justice of the SuPreme Court10 15 20 C ns opher Madrama lzama Justice of Supreme Court Catherine Ba ugemereire Justice of the SuPreme Court Monica Mugenyl, Justice of the SuPreme Court Muzamiru Mutangu[a Kibeedi Justice of the SuPreme Court I 2L I