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THE REPUBLIC OF UGANDA 
IN THE SUPREME COURT OF UGANDA 

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AT KAMPALA 
(CORAM:A.S.NSHIMYE JSC.) 
CRIMINAL APPLICATION NO.04 OF 2016 
BETWEEN 
B
IRETE SARAH···························APPLICANT 
.......................................... 
VERSUS 

UGANDA	-RESPONDENT 
......................................................... 

	25 	RULING OF JUSTICE NSHIMYE.JSC: 
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 
rejoinder. 
	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. 
10 
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. 
20 
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 
Courts. 
	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 
Prosecutions. 
10 
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 
law. 
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 
success. 
25 
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. 
15 
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 
embezzlement. 

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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. 
20  DECISION: 
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 
brought. 
20 
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" 
25 
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 

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5.	
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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: 

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

2.	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. 

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

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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 

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cousin sister the 4th surety who
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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). 
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	(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. 
15th
	Dated at Kampala this 	day of June 2016 

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A.S. Nshimye 
JUSTICE OF THE SUPREME COURT 
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