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In this regard he carried us through a number of authorities on circumstantial evidence notably Magendo Paul And Another v. Timotheo v. R TLR In principle we agree with Mr. Ndolezi in his submission, and as supported by the above authorities, that in a case depending entirely on circumstantial evidence before an accused person can be convicted the court must find that the inculpatory facts are inconsistent with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt.

And it is necessary before drawing the inference of guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. Indeed, this principle is well enunciated in the case of Ilanda Kisongo v. R EA at page The issue is whether there was circumstantial evidence upon which the appellant could be convicted and the conviction safely upheld by this Court. In our considered view, the point should not detain us. We are satisfied that there was no strong circumstantial evidence upon which a conviction could safely lie.

We say so for a number of reasons. One, as correctly argued by Mr. Ndolezi, the chain of events, if any, was broken. Without necessarily repeating Mr. Also, a guilty person in the circumstances would not have waited for five days after the death to abscond to Mwanza. Mutaki spent quite some time in urging that the act of absconding to Mwanza was a result of guilt conscience on the part of the appellant and generally that this conduct evidenced malice aforethought.

With respect, we do not agree. The appellant explained, and he was uncontradicted for that matter, that he absconded to Mwanza to attend to his sick mother. Surely, in the absence of evidence to the contrary it could not be safely said and concluded that he absconded because he had killed his wife. Indeed, the appellant was also uncontradicted in his assertion that when he was arrested at Mwanza he was told that he was being arrested for absconding from duty. This would suggest that he was not arrested because he killed.

Having discussed the first and second grounds of appeal we find no need in discussing the third ground of appeal.

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We are satisfied that the first and second grounds of appeal are enough to dispose of the appeal. In the totality of the evidence on record, we are satisfied that the case against the appellant was not proved beyond reasonable doubt. The appeal is accordingly allowed, conviction quashed and sentence set aside. The appellant is to be released from prison unless he is lawfully held therein. The Appellant is to be released from prison unless he is otherwise lawfully held therein. Dated this 30 th day of August, He then received a call from the branch manager kikuubo to confirm a deposit by A1.

That it was around midday plus. That when he went to crosscheck the deposit with A1, A1 confirmed the deposit and he confirmed the deposit to A2 on phone. The said report was tendered in court and marked as exhibit P6. It also shows that the said postings were made between AM to AM. On cross examination PW5 testified that he extracted exhibit P6 from the audit trail.

This teller transaction report was tendered in court and marked as exhibit It was her evidence that it was A1 involved in the posting of the transactions on exhibit The other prosecution evidence on this ingredient was that of PW10 Henry Senkenzi the manager in charge of security investigations.

This witness then displayed the CCTV footages and the court was able to observe the following:. He testified that the banking applications were secure. PW16 Lawrence Buwembo the Forensic internal auditor of the said bank also testified that he investigated the fraud by interviewing the branch manager, the assistant branch manager, the branch supervisor and head teller. He testified that he also visited the cabin the fraud was carried out from and he checked the core banking system. That he then confirmed that that the questioned postings were done within a short period of time without a client.

That he was able to conclude after viewing the camera footages that the information posted was from a piece of paper. This witness stated that he produced a report of his findings. He testified that basically he concluded that it was a fraud initiated by A1 at Kabale branch and that the fraud would have been stopped if A2 had not disregarded some policy guidelines. That he also found that there was no cash back up for the said transactions.

That he then presented the report to his supervisor PW12 who reviewed the report and commissioned it. That by the time he wrote the report PW12 was on leave. He had also stated that PW16 came out with findings which were contained in a report. He confirmed what PW16 had presented to him.

The report was tendered in by the prosecution and marked as exhibit P This was especially so when the statement indicated that it had been taken on 11 th December and yet A1 had been arrested on 6 th December five days in police custody! The courts should not be seen to admit such evidence for if they did they would be condoning the violation of the constitutional provisions with regard to the timeframe of arrest and detention of suspects in police custody. A1 in his defense stated that he had never worked with A2 or dealt with A3. That he only got to know A2 on 11 th December in prison and knew A3 on 13 th December at kireka special investigations unit SIU.

He also testified that it was true he informed PW1 that his computer had a defect and was hanging. He stated that this problem had been on for a long time ever since he joined the bank and that they would call the IT personnel to intervene. He further stated that he had reported this problem to management and specifically the manager and IT supervisor. He further testified that the IT supervisor took action and she gave him the application software to use in case equinox shut down. That the IT supervisor also gave him the commands to use to see whether the computer was communicating or available on the network.

A1 further testified that on the 6 th December , his computer was experiencing unstable connections and at times it would hang. That given that the computer had hang or frozen he decided to shut it down from the socket. That he switched it off because it was one way of troubleshooting. That equinox denied him access because the previous session had not been logged off properly.

That the computer was hanging and the mouse cursor could not move anymore. That the computer was static and could not receive any command. A1 further testified that he never had any knowledge of the transactions on Global Network Research account that morning and only knew about it that afternoon at around pmpm when PW1 came and asked him how much money he had. That PW1 then moved to his cabin and when he logged on, he realized it was true as more than a billion shillings was being reflected as being on his banking drawer.

That he, PW1 and the banking supervisor went through the transaction history and that is when he got to know that the said amount of money had been posted on Global Research account. A1 denied having posted the said mount and that he never even knew the owners of that account.

He also stated that he never saw the said Jean Pierre and neither did he know him. He further stated that there were 8 computers used by tellers and the computers were in cabins which were not under key and lock all the time. He also stated that at times user names and passwords were shared on a personal basis. A1 further stated that his computer was not forensically examined and that the IT supervisor Nagayi was not present on that day as she had taken her annual leave 2 days before the incident.

A1 further stated that the piece of paper seen during the footage of the video recording contained computer commands given to him by the IT supervisor before she left for her leave. That the commands were to test and see whether the computers were communicating well with the rest of the computers on the network. A1 emphasized that the paper had no details of Global Research network. That PW1 ordered the security officer to search him and everything on him was retained including the said piece of paper. That his two phones were also removed as well as his wallet and UTL simcard.

That he only got them back when he was released on police bond at Kireka on the 14 December but that he never got the said piece of paper. A1 further stated that he was also chatting via outlook and equinox. He testified that they were going to have the end of year party and he was chatting with colleagues from Rukungiri and Kanungu who were coming for the end of year party.

A1 further testified that on phone he was talking to his brother called Sam Kabuye and that they were allowed to use their phones as long as it did not take long and not In front of their managers. He stated that he never knew the telephones of A2 and A3 at that time.


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A2 also stated that he was referring customers to his colleagues as seen in the video footage because his system was not working at that time. He also stated that he was allowed to use services of mail and outlook in absence of customers. He denied having conspired with A2 and A3 as he never knew them before. He also testified that he was able to post what he received and it could have been a third party who posted the other postings fictitious.

He was shown exhibit P6. He stated that the exhibit did not show the computer that was used for the transaction. That exhibit P6 should have had the IP address of the computer, the mark address of the computer name that was used and hence exhibit P6 could not wholly inform you that A1 posted the said transactions. He also testified that if one had the username and password of A1 and logged into the system and used the same credentials, the system would still show that it was A1 who was the posting officer.

When DWI for A1 was shown exhibit P10 he again stated that he could not conclusively confirm that the transactions indicated on the said exhibit were indeed of A1. He further testified that when the system captures the user account details without capturing the user account machine details, it becomes impossible to tag a physical person using a particular computer to the transactions as reflected in the back end of the system. Dw1 for A1 concluded by testifying that without the computer used by A1 being subjected to forensic examination it cannot be confirmed that the computer used by A1 is the one that was used to post the transactions referred to in exhibits P6 and P Counsel for A1 further submitted that the said evidence can at most be referred to as circumstantial evidence and the where evidence is circumstantial, it must be such that it produces moral certainty beyond reasonable doubt that it is the accused who committed the offence with which he is charged.

That the facts proved by the prosecution must be such that there is no other co-existing circumstances which would destroy the inference of guilt. That in order to support a conviction based on circumstantial evidence it must point irresistibly to the accused as the one who committed the offence. Counsel for A1 further submitted whether exhibit P6 the transactions details verification form proves that A1 posted the transactions with such certainty beyond reasonable doubt. That according to the evidence of DW1 for A1 who is a forensic examiner, exhibit P6 could not conclusively connect A1 to the postings of the transactions in issue.

That the said publication gives the most update provisions on authentication of computer evidence and among the key requirements is forensic examination of the computer in issue. That for the computer to be forensically examined it has to be seized and the forensic examiner must show the process used to retrieve the print data form the computer, technology used results.

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He refers to pages of the Journal. Counsel for A1 further submitted that the principles of the said journal had been cited with approval by Hon. Justice Paul. That with regard to this case it was clear that;. Counsel for A1 invited court to find that the evidence of DW1 for A1 on exhibit P6 was more credible and casting doubt on whether A1 was responsible for the postings.

That in event any doubt was raised then that doubt should be resolved in favour of the accused person. Counsel for A1 further submitted whether exhibit P10 The Teller Transactions Report proves beyond reasonable doubt that A1 posted the transactions in issue. That therefore the actions of a third party have not been ruled out by the prosecution.

On the use of the phone by A1 counsel submitted that the prosecution evidence clearly showed that there was no prohibition on the use of phones in the cabins but that it was rather discouraged and advised that it be minimally used. That in any case A1 had testified that he was only calling his brother called Sam Kabuye. On whether the use of the keyboard by A1 and working on the computer without clients was evidence of posting of the said transactions in issue, counsel for A1 submitted that A1 testified that he had used the computer to chat with colleagues logged onto the same equinox network and in particular referred to the following day annual staff party.

That this fact was never challenged by the prosecution. That the footage shown in court could not show what was being posted on the computer and that this fact was conceded to by PW10 and PW On whether the piece of paper used by A1 contained the information of the account number of Global Research Network, counsel submitted that there was no prosecution evidence adduced on what was written on the said paper although the paper had been retrieved from A1 at the time of his arrest. On referring customers to other tellers, counsel for A1 submitted that evidence had been led to show that A1 had problems with his computer.

On being denied access to equinox counsel for A1 submitted that as adduced from the evidence on record, A1 had not properly logged off from equinox. On confirmation by the deposit by PW2, counsel submitted that there was a contradiction from PW2 on what exact figure he was asked to confirm. A OF KENYA [1] EALR pages where it was held by the learned Justices of appeal that motive is a factor to be taken into account as part of circumstantial evidence on the culpability or otherwise of an accused person.

Counsel for A1 concluded by stating that there was no evidence adduced to hold A1 guilty of having knowledge or reason to believe that crediting such an account would cause and did cause loss to the said bank. A1 acknowledges in his defence that he was able to see the fictitious postings when PW1 came to his cabin and together they logged on his computer and found the said postings. This was also done in the presence of PW2. A1 claims in his defense his computer had developed problems in the morning and that is why he had decided to log it off.

Apparently from the evidence on record the IT manager was away on leave and I would have expected A1 to report this problem to the top management as early as when he found out the problem. However from the evidence of PWI it was only at around pm when he realized that A1 had over 1 billion shillings in his drawer and when he later found him in the corridors of the bank having failed to initially find him in his cabin, that A1 told him that his computer had problems! One wonders why A1 had to wait until he was confronted by Pw1 at around pm for him to state that his computer had problems!

Much as A1 claimed he had reported this matter earlier to management, there was no other evidence he adduced to back up his defence. In his defense A1 seems to justify the entries as computer commands that were given to him by the IT supervisor before she left for her leave and that the commands were meant to test and see whether his computer was communicating well with the rest of the computers on the network. This is what A1 would want this court to believe he was doing all that time.

A1 however does not explain as seen from the footage why he was able to attend to some clients and some of their transactions on his computer if his system was faulty! This draws the inference that A1 was still able to post some transactions on his system and that is why he was able to have the balances he acknowledged he had to PW2. Indeed exhibits P. I do not see any other value that would have added.

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Much as I agree that it was not possible to visibly see from the footage what A1 was posting on his computer, the activities of A1 seen from the CCTV footage produces certainty beyond reasonable doubt that A1 made the postings as reflected in exhibits P. I do not believe his defence therefore that he was simply posting commands he had been given by his supervisor for all that time he was seen working on his computer.

I equally do not believe in his defence that he was chatting with his friends in preparation of a party they intended to have. Social accountability, on its part, aims to empower citizens with information and provide effective channels through which to exercise agency. For this reason, social accountability plays a pivotal role for anti-corruption practice. There are many different social accountability tools that development practitioners can use.

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How suitable the tools are depends on each context. Find out how to choose the best-fitting social accountability tool for your initiative. There is widespread agreement that corruption cannot be effectively controlled without civil society involvement. This is especially the case in the delivery of public services, where corruption generates high social costs for service users. Social accountability empowers citizens with adequate information and institutional mechanisms to denounce and resist abuses of power, opening up opportunities for grassroots actions against corruption.

Reviews of social accountability interventions have shown mixed results. Corruption hampers the provision of essential public services und severely undermines development outcomes. However, bribery, favouritism and other corrupt behaviours are disturbingly common at the point of service delivery in many developing countries.

In such contexts, eliciting citizen participation is a promising way to assess public service quality, and monitor and denounce corrupt practices. Recognising the potential of citizen participation in countering corruption, development partners and international organisations have been prolific in developing a significant number of social accountability tools. Publicly held social audits are monitoring processes through which organisational or project-related information is collected, analysed, and shared publicly in a participatory fashion.

A community scorecard is a monitoring tool that assesses services, projects, and government performance by analysing qualitative data obtained through focus group discussions with the community. A citizen reportcard is an assessment of public services by the users citizens through client feedback surveys.

Participatory budgeting refers to a process through which citizens participate directly in budget formulation, decision-making, and monitoring of budget execution World Bank Ensuring success, however, requires identifying which approach better fits local needs and community expectations. Therefore, eliciting, articulating and communicating citizen voice is a process that does not take place in a vacuum. Service users do not simply await to be empowered with the right information to become governance advocates.

The discussion of social accountability initiatives in this U4 Brief draws from varied experience gathered in Mexico, the Philippines, Serbia and Tanzania. Arguing that contextualisation is pivotal to programme design, this section discusses a general model of social accountability and its constituent elements. Therefore, effective social accountability is made up of three building blocks — voice , enforceability and answerability — which together form a cycle. Citizen voice can be a variety of mechanisms — formal and informal — through which people express their preferences, opinions and views, and demand accountability from power holders.

Citizens need a minimum understanding of their rights and entitlements in order to evaluate public service performance. Capacity building to ensure citizens have this information is therefore essential in social accountability initiatives. Citizens may be invited to participate in a variety of activities aimed at steering public sector performance towards better outcomes.

Participation may involve, for example, evaluating service provision quality, identifying and denouncing instances of corruption, or engaging in policy-making processes. Inputs resulting from participatory activities need to be aggregated and articulated in order to be conveyed to decision-makers. This is a crucial component of social accountability: It represents the stage in which social accountability outputs are expected to enter the public sphere and trigger institutional responses, such as sanctions and political answerability.

Different social accountability instruments give different levels of prominence to capacity building, participation and transmission of information. Depending on which social accountability approach practitioners use, they need to confront distinct theory of change assumptions and align them with local realities.