Birete Sarah v Uganda [2017] UGSC 27 (15 June 2017)

Criminal law
Case summary
The court held that though the application had been brought under a wrong law and that it should have been brought under the Criminal Procedure Code Act, the inadequacies of counsel shall not be visited on the applicant. That her application had been proved on a balance of probabilities that the appeal would take long to be heard, that the she had followed the bail conditions at trial and that she had substantial sureties, her application would stand.











IRETE SARAH···························APPLICANT






This is an application by way of Notice of Motion brought
under article 23 (b) (a) of the Constitution, and rules 42

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and 43 of the Judicature (Supreme Court) Rules

30 Directions for the release of the applicant on bail pending
the disposal of her appeal. The application is supported by
both the original affidavit and a subsequent one in

35 In brief she deponed that she is an appellant in this Court
since 21st April 2016. She was first convicted by the Anti-

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~ __ Corruption 'Court' and was sentenced to 10 years

imprisonment on each of the two counts of Abuse of office
CIS (1) and embezzlement CIS 14 (a) (iii) of the Anti
Corruption Act 2009. She was also ordered to refund the
embezzled USD 70,000.


She appealed to the Court of Appeal which allowed her
appeal against conviction and sentence on the offence of
Abuse of office.

15 Her conviction and sentence on the second count of

embezzlement was upheld, hence her appeal and this
application to this court. She deponed further that she
applied to be supplied with a copy of proceedings which
has not been availed by the Court of Appeal.


She is a single mother of two infant sons and guardian of
an orphaned child. The infant children are 8-10 years
while the dependent girl child is 4 years.

25 Submission by Counsel/or the applicant:

Her learned Counsel Mr. Kanduho read and highlighted
paragraphs 2,3,4,6 and 7 of the applicant's affidavit In
support relating to the character of the applicant.


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':5 ';. That during the trial at the High Court and on appeal to

the Court of Appeal, she was released on bail and she
abided by all the bail terms which were set by the said two

10 Counsel submitted that, In the courts below, she
deposited a certificate of title on which her residential
house is situated and that if the court was inclined to ask
for another title, her cousin sister who is an Ag. Assistant
DPP and Potential Surety was ready to give her Powers of

15 Attorney to deposit her title.

Learned counsel Kanduho further submitted that the
appeal was not frivolous and had a reasonable chance of
success. However, Counsel expressed fear that there was

20 a high possibility of delay in hearing the appeal because
since the applicant applied for proceedings they have not
been availed by the Court of Appeal.

He contended that in the likely event of the appeal being

25 allowed after delay, the applicant would have to her
detriment served a substantial part of her sentence.

Lastly Counsel pointed out that the offence for which the
applicant was convicted did not involve personal violence.

He presented 4 sureties namely:

1 Major Okwiri Lwabwoni 48 years former MP in the 6th
Parliament. Retired army officer resident of Muyenga B
division. His particulars are on the file. He is a colleague of

10 the applicant at work "Center for Constitutional
Governance" .

2 Mr. Beyanga Joseph resident of Nsansa LCI Kira
Municipality Wakiso. He works with Monitor publications,
15 he is a brother to the applicant and his particulars are on
the court file.

3 Nduhukire Naume a resident of Katooke BV, she is the

employee of Reserve Protection Services Ltd.
20 childhood friend of the applicant.

She is

4 Caroline Nabasa Ag. Assistant DPP, resident of Kiira
Division, Kiira town council Division, cousin sister of the
applicant. She executed powers of attorney authorizing the

25 applicant to deposit her land title comprised in Mengo,
Kyadondo, Block 210 plot 1920 if Court so ordered.


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Submission 'in' reply by counse1 for the respondent:

Marion Achio SSA Counsel for the respondent opposed the
application and relied on the affidavit of Bisamunyu David
a Senior State Attorney in the Directorate of Public


She submitted that the application had been bought
under a wrong law, namely article 23 (b) (a). This article
does not provide for bail pending appeal.

15 She submitted further that the applicant's appeal being a
second and final appeal, section 2 of Judicature Act
provides that the appeal can only be based on a point of

20 The Learned Senior State Attorney wondered why no
proposed memorandum of appeal was attached to guide
Court on what ground the appeal is based.

In her view therefore, the appeal has no chance of



She argued that contents of paragraph 4 of the affidavit
rejoinder G-d are not matter of law. They are issues of
evaluation of evidence. According to her, improper
evaluation of evidence is not a point of law.

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With regard to delay, she submitted that, there was no
evidence of likely delay because the court was well staffed
with Justices.

10 While relying on the authority of Arvind Patel Vs Uganda
Misc Application No. 2003 filed by counsel for the
applicant, she distinguished it from the one before this
court on the ground that there was substantive delay in
Arvind Patel which is not the case in the applicant case.


The learned Attorney asked the court to ignore the
submission of counsel for the applicant that she abided by
the bail conditions set by the lower courts as a ground
that the applicant should be trusted against the

20 absconding.

That circumstances have changed, she was then during at
the trial innocent, but now she is a convict and her
conviction on the charge of embezzlement was upheld by

25 the Court of Appeal.

Counsel Achio referred to the respondent's affidavit
paragraph 11 and contended that even if embezzlement is


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: '5· :' not of violent in nature, financial crimes are peculiar with

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far reaching implication.

She prayed to court to dismiss the application. But in the
event that court is inclined to grant the application,

10 stringent terms should be imposed like depositing a land
title in the applicant's names with express authority to
dispose of the property in the event of jumping bail and in
addition deposit cash of 70,000 USD.

15 Submission in rejoinder by Counsel for the applicant:

In rejoinder counsel for the applicant conceded that article
23 (b) (a) of the Constitution was quoted in Motion in error
but the court is called to exercise substantial justice.
Whether the proposed appeal discloses a point of law,

20 counsel contended that the question as to what the
applicant did amounts to embezzlement is a point of law
to be decided by this court.

Counsel referred court to paragraph 4 (b) affidavits of the

25 applicant in rejoinder that the money in question was
used by the Permanent Secretary and not the applicant
which is a question of law as to whether that was


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'. Counsel cited the case of AZenyo Marks Vs Uganda Misc.

Application No. 05 of 2015 in which my sister Faith
Mwondha JSC cited with approval the case of Arvind Patel
(Supra). He prayed that the court do consider the
application with compassion. On how soon the appeal can

10 be heard, Counsel contended that will depend on how
soon the Court of Appeal can be ready to make the
proceedings available to the applicant.

With regard to the proposal by counsel for the respondent

15 that in the event the applicant is granted bail, she should
deposit cash of USD 70,000, Counsel submitted that the
purposed of bail would be defeated. He reiterated his
early prayer that the applicant be granted bail.


Upon reading the affidavits in support of the application
and that of the respondent together with supporting
documentary evidence and authorities attached thereto
and upon hearing and considering submissions of both

25 Counsel, the following are my findings and decision.

I uphold the submission of counsel for the respondent
that article 23 (b) (a) under which the application was
brought is inapplicable to this bail application and IS


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irrelevant. Un 'seriousness and profession negligence of

this nature especially when it is portrayed by senior
counsel in the Highest Court of the land is unacceptable
and should not be repeated.

10 The correct law that should have been quoted IS section
40 (2) of the Criminal Procedure Code.

However, professional error of Counsel should not be
visited on the applicant who is yearning for substantive

15 justice. Her application is clear that she wants to be
released on bail pending her appeal on grounds she has
deponed to and the court is alive of the correct provision of
the law under which her application should have been


Errors of counsel notwithstanding, I will invoke the
provision of article 126 of the Constitution which provides:

"That substantive justice shall be administered
without undue regard to technicalities"


The principles which guide court in applications of this
nature, were stated in the case Arvind Patel (Supra) which
were considered and reproduced in the 2nd applicant's
authority of Alenyo Marks Vs Uganda (Supra) decided by



my learned (sister Faith Mwondha JSC on the 17th February 2016

I find, having considered the objection of Counsel for the
respondent that the applicant proved that:


1. It is not clear when her appeal is likely to be heard,

  1. Having succeeded by 50% in her appeal in Court of
    Appeal, there was no compelling evidence to tilt her

15 belief that even the remaining leg of her appeal would
succeed in this court.

3.Judging from the way she conducted herself when
she was released on bail in the High Court and in the

20 Court of Appeal I have no reason to believe that she
could flee.

  1. Her sureties are substantial and are approved and
    relied upon for her return to court until her appeal is
    heard and disposed of.


Her application therefore succeeds

(a) She will be released on bail, if she executes a bail
bond of Shs. 700 million (not cash).

(b) Deposit the original land title in the names of her


cousin sister the 4th surety who

agreed to give her

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.5 ( Powers 'of Attorney to do so (Mengo Kyandondo

Block 210 Plot 1920).

(c) Each of 4 sureties will execute bonds of Shs
250 million (not cash).


(d) The securities the applicant deposited in the trial
and or the Court of Appeal should not be released
until the applicant's appeal is disposed of i. e. her
pass post and land title on which her residence is

15 situated.

The applicant 1S directed to report to the Registrar of
this Court on every 15th working day of the month
starting to 15th July 2016 to have her bail extended

20 until her appeal is heard and disposed of.


Dated at Kampala this day of June 2016


A.S. Nshimye



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