THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

o ANTI-CORRUPTION DIVISION AT NAKASERO

CRIMINAL MISCETTANEOUS APPLICATION NO OO83 OF 2024

UGANDA (DPP) aaaaaaaaaaaaaaaaaaaaaaaaaaaaa

APPLICANT

VERSUS

WAMUKUYU IGNATIUS MUDINI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE: Okuo Jane Kajuga, I

RULING

lntroduction:
This Ruling is in respect of an application for a Restraining Order brought by the applicant
under Sections 34 (1),53,54, 55 and 57 of the Anti-Corruption Act Cap 116. The
application is by a Notice of Motion supported by the affidavit of DllP Mfitundinda
Didas, a financial and asset tracing detective from the Directorate of Criminal
lnvestigations of the Uganda Police Force.

The applicant seeks orders prohibiting the respondent and any other person from
disposing of or otherwise dealing with properties comprised in:

1. Volume 4690 Folio 22 - Block 1 5 Plot 2783 land at Kibuga, Nsambya

2. Volume 3201 Folio 21 - Plot 12 Land at Wanale Road Mbale
3. Volume MBA226 Folio 3 - Block 3 Plot 4149land at Mulindwa Cell, Central Mbale
4. Volume MBA 169 Folio 6 - Plot 5771 Block 3, Land at Mangho Lower, Central
Mbale
5. Kyagwe Block 103 Plot 2132, Land at Mukono, Mutuba lV
6. 0.1030 hectares of unsurveyed land at Busamaga Division, Mbale Municipal
Council
7. 2.4900 hectares of unsurveyed land at Kireka, Fiika Division, Nakaloke Town
Council Mbale District

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 8. 2.3380 hectares of private property at Bulengeni Trading Centre D, Kisenyi, Kamu,
Bulambuli with a Coffee Plantation
9. 3.8850 hectares at Nakaloke lll, Afya Ward, Nakaloke Town Council Bungokho,
o
Mbale used for Crop Production.
10.5 hectares of land at Nalwadda Village, Bunasufwa Parish, Bulaago Sub-county,
Bulambuli
11.1.6180 hectares at Lukonje village, Simu Bulambuli
12.0.0505 hectares of unsurveyed land at Buyaga Cell, Buyaga Town Council,
Bulambuli District having Commercial shops
13.5.6650 hectares at Buwashebwa, Nabbongo, Bulambuli
14. Residential Building on 0.0890 hectares in Leasehold Block 15 1936, Folio 22
Volume 3607 at Ssenyonga Road, Gogonya ll Zone
(l noted that item 1 appeared twice on the list and I have excluded the repetition here)

THE [AW:

The issuance of Restraint Orders under the Anti-Corruption Court Act Cap 116 is for the
purpose of preventing the dissipation of any money or property derived from or related
to an offense, or property belonging to or under the control of an accused person for:
a) ensuring payment of compensation to the victims of a criminal offense in the event
of a conviction;
b) satisfying confiscation orders or pecuniary orders issued by the court in respect of
that property, upon conviction.
The purpose of the Anti-Corruption Act would be defeated if the benefits or rewards from
the crime are dissipated or beyond recall at the point of conclusion of the case. lt would
also be pointless for the court to issue a compensation order to victims of crime, when
there's no property from which the same can or may be realised, in case the accused fails
to pay up.
The power of this court to issue the orders sought is contained in Sections 34 and 55 of
the Anti-Corruption Act Cap 1 16.
Section 34 ol the Act provides:
"A court moy, upon opplicotion by the Director of Public Prosecutions
or the lnspector Generol of Government, issue o restroining Order
placing restrictions os they oppeor to the court to be reosonoble...on
the disposal of any property of the occused person, the suspected person
or o person associoted with the offense or suspected person for ensuring
the payment of compensation to any victim of the offense or otherwise

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 for the purpose of preventing the dissipotion of ony money or propefir
derived from or reloted to on offense under the Act."

o Section 55 of the Act provides as follows:

o "Where the court is sotisfied thot there are reasonoble grounds to

believe thot there exists propefi in respect of which a restroining order
may be mode under this Act, the court moy make on order-
(o) prohibiting any person from disposing of, or otherwise dealing with
propefi specified in the order other thon in o monner specified in the
order; ond
(b)otthe request of the authorked officer, ond where the court is of the
opinion that the circumstonces so require, oppoint a person to toke
control of or to manoge or otherwke deol with the propefi.
The application may be made under Section 53 which provides:

"Where o person has been chorged or is obout to be chorged with an

offence under this Act, an outhorised officer may moke on opplication
to the court for on order, in this Act referred to os o restrointng order,
restrotning the disposal of the property of, or in possession or under the
control of that person, wherever that propefi is sttuated.
Such an application is to be supported by an affidavit which sets out the following:

(a) the offence under investigotion;

(b) a
description of the property in respect of the restroining order
sought;
(c) the nome and oddress of the person believed to be in the possession
of the property;
(d) the grounds for the belief that the properU is tointed in relotion to
the offence or that the person being investigoted derived a benefit
directly or indirectly from the commission of the offence under
investigation;
(e) where the opplication is for a restraining order ogoinst propefi of
o person other thon the person being investigated, the grounds for the
belif thot the propefi k tainted property in relotion to the offence
under investigotion ond is subject to the effective control of the
accused; and

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 (fl the grounds for the belief thot o confiscotion order or a pecuniary o
order moy be or is likely to be mode under this Act in respect of the
propefi. SEE Section 54 of the Act in full
o
Burden of proof:
I wish to emphasise that the legal burden at the restraint stage is far lower than the
balance of probabilities. As set out in Section 55 of the Act, the court may issue the order
upon finding "reasonable grounds to believe" that there exists property in respect of
which a restraining order may be made.
ln the persuasive Botswana Case of DPP versus Khato Civils (Pty) Ltd and others;
CLCGB 040-16, their Court of Appeal discussed the test of "reasonable belief" as follows;

"The test of reosonableness is an objective one. The court must look at the evidence which
wos in the possession of the investigating officer ot the time when he reached his value
judgement. Thot evidence ond the circumstances must be looked at holistically by the court
in determining whether there wes moterial or evidence upon which o reasonable
investigator having regard to this and exercising his mind accordingly would hove
entertoined a belief thot some crime hos been committed of which the funds were proceeds
therefrom"
I agree with the finding and find it relevant to our legal system. At the restraint stage the
court must only be satisfied that there might be a prosecution that may lead to conviction
or compensation and confiscation order issued. lt is for this reason that the order may be
granted both at the investigative stage and when charges are finally brought in courts of
law. The court is not at this stage required to delve into the merits of the case or analyse
the evidence and determine its strength or otherwise.
Under Section 34 however, the conditions set out in Section 55 do not apply. As long as
there's evidence of a crime under investigation or in court and property belonging to the
accused has been identified, the court may restrain its disposal to avoid dissipation. I note
from submissions of the applicant that this application mostly falls under section 34.
No notice was issued to the respondent of this application, and I proceeded Exparte being
convinced that giving the notice before making the order would result in the
disappearance, disposal, dissipation or reduction in the value of the property. I am granted
this discretion by Section 57 of the Anti-Corruption Act and I have opted to exercise it
in the interest of justice.

The lssues for Resolution:

1. Whether the application is brought by an authorised person within the meaning

of the Act

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 2. Whether a person is charged or is about to be charged with an offense under
the Act

o 3. Whether the property in respect of which the orders are sought is properly
described, and is in possession or under the control of that person
o 4. Whether the name and address of the person believed to be in possession of
the properties) is well described
5. Whether the applicant has established grounds for the belief that the property
is tainted or derived a benefit from the offense committed

lssue 1:
Under Section 53 of the Act, an application for restraining orders can only be brought by
an officer authorised to do so. An "authorized officer" is defined under the same Act,
Section 2 thereof as
"A police officer not below the ronk of Assistant lnspector of Police
outhorised in writing by the lnspector Generol of Police or on
inspectorote officer outhorised in writing by the lnspector Generol of
Government or a State Attorney outhorised in writing by the Director
of Public Prosecutions' (emphosis mine)
This application is brought by Annette Namatovu Ddungu, a Chief State Attorney from
the Office of the Director of Public Prosecutions, designated as the officer in charge of
Asset Recovery. A copy of this designation was provided to the court. lt's dated 1't
September 2021 Ref DPP/P/N/487, signed by the Director of Public Prosecutions and
titled "clarification of duties and responsibilities".
By virtue of this designation, it follows that she has the written authority of the DPP to
bring an application related to asset recovery including restraints, the seizure and recovery
of proceeds of crime.
She therefore satisfies the definition of an authorised officer within the meaning of
Section 2 of the Anti-Corruption Act.

I find that the application is brought by a competent person.

lssue 2:

ln the supporting affidavit, it is averred that the respondent who is a member of

Parliament representing Elgon County in Bulambuli District, and Deputy Chairperson of
the Budget Committee for the Financial Years 2021/2022 and 2022/2023 was investigated
under CID HQTS CASE REF E/1 03/2024, and the deponent conducted the financial and
asset tracing component of the investigation.

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The respondent was subsequently charged and later committed to the High Court for trial o
on charges of Diversion of Public Resources, with an alternative of Receiving Stolen
Property and Conspiracy to defraud, Vide Anti-Corruption Session Case No 82/2024.The
o
lndictment, Annexure A indicates the value of the allegedly diverted funds to be Ushs
2,398,714,611/= (See Count 2), the value of the conspiracy to defraud is Ushs
3,448,714,611/= while the value for the alternative charge of receiving stolen property is
Ushs 85,000,000/=. The trial however was halted by the trial court pending the
determination of a human rights violation allegation brought by one of the co-accused.

There is overwhelming evidence to confirm that the respondent is facing charges under
the Anti-Corruption Act and other related offenses, over funds for war loss compensation
to Buyaka Growers Cooperative Society.
There is also additional evidence that there are new areas of investigation being
undertaken by the police that further implicate the respondent in the commission of other
crimes under the Ant-Corruption Act. Under Paragraphs 22 to 35 of the supporting
affidavit, Funds for Bumwambu Growers Cooperative Society were alleged to have been
received by SIMU OIL CO LTD which is linked to the respondent. There are also enquiries
into suspicious payments to Rajnish Jain Bank Account, then subsequently over 15
suspicious transactions to the respondent's bank account from the latter company.

Iam satisfied that the applicant has fully met the requirements of Section 53 of the Anti-
Corruption Act as regards the existence or pendency of charges against the person
against whom the orders are sought.

lssue 3:

ln order for the application to succeed, the applicant has the obligation to properly
describe the properties sought to be restrained from disposal, and satisfy the court that
they are in possession of or under the control of that person.
Black's Law Dictionary 8th Edition defines "possession" to mean the foct of having or
holding property in one's power; the exercise of dominion over property. lt k the
right under which one moy exercise control over something to the exclusion of all
others, the continuing exercise of a claim to the exclusive use of o moterial object"

The applicant has tendered evidence to confirm that the following properties are
registered in the name of the respondent. With the exception of (c), he had declared them
to the lnspectorate of Government as part of his assets in the Declarations that he filed in
2099,2021 and2023;

a) Vo|.4690 Folio 22 Block 15 Plot 2783, land at Nsambya Central, Gogonya 11,
Makindye Division. This title was deposited with the Court as security for his release
on Bail.

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b) Volume 3201 Folio 21 - Plot 12 Land at Wanale Road Mbale

c) Volume MBA226 Folio 3 - Block 3 Plot 4149land at Mulindwa Cell, Central Mbale.
o d) Volume MBA 169 Folio 6 - Plot 5771 Block 3, Land at Mangho Lower, Central Mbale
e) Kyagwe Block 103 Plot 2132, Land at Mukono, Mutuba lV
o Copies of the land titles have been attached as Annexures W to W5 respectively. All are
registered in the respondent's name. The property in (c) was acquired in December 2023.
Though it was not declared, registration is conclusive evidence of ownership.
Am satisfied that the applicant is in possession of the said properties by virtue of being
the registered owner.
Furthermore, there is proof that the properties reflected in (c) and (d) were acquired
during the period that the fraudulent transactions are alleged to have occurred, hence a
basis for the suspicion that they were acquired with illicit funds, and the belief that a
confiscation order may be sought from and awarded by the court. I find that belief
reasonable.

There is no evidence tendered to prove that the respondent is the registered owner of
the Residential Building on 0.0890 hectares in Leasehold Block 151936, Folio22Volume
3607 at Ssenyonga Road, Gogonya ll Zone, although he declared it as his property in
2019,2021 and 2023. Being registered land, there ought to be a verified title. There is no
explanation as to why the formal ownership has not been confirmed.

Most of the properties that are unregistered were declared by the Respondent to the
lnspector General of Government as his properties. These are the following:

i. 0.1030 hectares of unsurveyed land at Busamaga Division, Mbale Municipal

Council (declared in 2019,2021 and 2023)
ii. 2.4900 hectares of unsurveyed land at Kireka, Fiika Division, Nakaloke Town
Council Mbale District (declared in 2019,2021 and 2023)
iii. Coffee Plantation on 2.3380 hectares of private property at Bulengeni Trading
Centre D, Kisenyi, Kamu, Bulambuli (Declared in 2019,2021 and 2023)
iv. Crop Production on 3.8850 hectares at Nakaloke lll, Afya Ward, Nakaloke Town
Council Bungokho, Mbale (Declared in 2019,2021 and 2023)
v. 5 hectares of land at Nalwadda Village, Bunasufwa Parish, Bulaago Sub-county,
Bulambuli (Declared in 2019,2021 and 2023)
vi. 1.6180 hectares at Lukonje village, Simu Bulambuli (Declared in 2019,2021 and
2023)
vii. Commercial shops on 0.0505 hectares of unsurveyed land at Buyaga Cell, Buyaga
Town Council, Bulambuli District (Declared in 2019,2021 and 2023)

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vlll. 5.6650 hectares at Buwashebwa, Nabbongo, Bulambuli (Declared in 2019, 2021 o

and 2023 o
On the basis of the respondent's own consistent declarations of ownership which I have
carefully scrutinised, I find that the applicant has established his possession of the above
properties.

lssue Four:

The name and address of the person believed to be in possession of the properties is well
described as the Hon. Wamukuyu Mudimi, a member of Parliament for Elgon County in
Bulambuli.

A copy of his affidavit in support of his bail application is Annexure B to the applicant's
affidavit in support of the application and in paragraph 10 thereol his fixed place of abode
is at Good will village, Nsambya Central at Plot 2783, Kibuga Block 15.

lssue 5:

The applicant has established grounds for the belief that some of the properties are
tainted as proceeds of crime. I have already cited the two properties acquired during the
period that the crimes charged occurred.

However, this application is also brought under Section 34 of the Anti-Corruption Act to
prevent the dissipation of the properties cited for the satisfaction of compensation orders
that may be issued by the court in the case of a conviction. For that matter it is sufficient
if the link between the properties and the respondent have been established, regardless
of whether the properties are proceeds of crime or not.
coNcrusroN
ln conclusion therefore, the application succeeds.

I hereby issue an Order Restraining the Respondent and any other persons connected to
him from disposing of the properties listed hereunder:

1. Vol.4690 Folio 22 Block 15 Plot 2783, land at Nsambya Central, Gogonya 11,
Makindye Division.
2. Volume 3201 Folio 21 - Plot 12 Land at Wanale Road Mbale
3. Volume MBA226 Folio 3 - Block 3 Plot 4149land at Mulindwa Cell, Central Mbale.
4. Volume MBA 169 Folio 6 - Plot 5771 Block 3, Land at Mangho Lower, Central Mbale
5. Kyagwe Block 103 Plot 2132, Land at Mukono, Mutuba lV
6. 0.1030 hectares of unsurveyed land at Busamaga Division, Mbale Municipal Council
7. 2.4900 hectares of unsurueyed land at Kireka, Fiika Division, Nakaloke Town Council
Mbale District

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8. 2.3380 hectares of private property at Bulengeni Trading Centre D, Kisenyi, Kamu,

Bulambuli
t 9. 3.8850 hectares at Nakaloke lll, Afya Ward, Nakaloke Town Council Bungokho,
Mbale
o 10.5 hectares of land at Nalwadda Village, Bunasufwa Parish, Bulaago Sub-county,
Bulambuli
11.1.6180 hectares at Lukonje village, Simu Bulambuli
12.0.0505 hectares of unsurveyed land at Buyaga Cell, Buyaga Town Council,
Bulambuli District, and;
13.5.6650 hectares at Buwashebwa, Nabbongo, Bulambuli

No order is made in respect of Property comprised in Leasehold Block 15 1936, Folio 22

Volume 3607 at Ssenyonga Road, Gogonya ll Zone.
This Order is to be served on the respondent, registered with the authorities where
relevant and shall stay in force until it is discharged, reviewed, revoked or varied by this
Court.

Iso

Okuo Jane Kajuga

Judge of the High Court

Delivered at Kampala this 27th day of November 2024

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