Court name
Court of Appeal of Uganda
Judgment date
26 August 2013

Walubi v Uganda (Criminal Application-2013/44) [2013] UGCA 8 (26 August 2013);

Cite this case
[2013] UGCA 8

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CRIMINAL APPLICATION NO. 44 OF 2012

 

.

WA

 

LUBI GODFREY ------------------------------------------------------ APPLICANT

5

 

 

VERSUS

U

 

GANDA -------------------------------------------------------------------- RESPONDENT

C

 

ORAM: HON MR. JUSTICE KENNETH KAKURU, JA.

RULING

Th

 

is is an application for grant of bail pending appeal. It is brought by

10

 

 

way of Notice of Motion under Article 23(6) (a) of the Constitution,

Sec

 

tion 40 of the Criminal Procedure Code Act, Section 132 (4) of the

Tria

 

l on Indictments Act and Rule 6, 43 & 44 of the rules of this Court.

At

 

the hearing of this application the applicant was represented by Mr.

1

 

 

5 Asuman Nyonyintono and Mr. Fred Kakooza Principal State Attorney

first

 

appeared for the respondent. However Mr. Kakooza was not ready

to pr

 

oceed. He had no case file and applied for adjournment on that

acco

 

unt. I declined to grant the adjournment. Because this application

1

had

 

been before this Court previously on 10th January, 2013 and at that

time

 

Mr. Byansi who appeared for the respondent failed to proceed on

acc

 

ount that the DPP had been served late. The matter was stood over

by t

 

he presiding judge to allow him peruse the file; again he was unable

5

 

 

to proceed, in the afternoon. In the result the application was adjourned

sine

 

die. That was more eight months back. There is a possibility that

the

 

applicant could have been released on bail in January 2013. Eight

mon

 

ths later he is still in jail on account of inefficiency and neglect of the

DPP'

 

s office. Even if bail had been denied the applicant would have

10

 

 

been saved the trouble and the legal expenses and courts time would

have

 

been saved. The DPP has never bothered to file an affidavit in

reply i

 

n this case which was filed in November 2012.

This

 

kind of attitude by the DPP's office and specifically by individual

State

 

Attorneys is completely unacceptable at this Court. The conduct of

15

 

 

both Mr. Byansi and more especially Mr. Kakooza is unprofessional and

unac

 

ceptable. It verges on neglect of duty and abuse of office. Am

direct

 

ing that a copy of this ruling be served on the person of the DPP

Hon.

 

Mike Chibita.

2

On

 

21st day of August 2013, I heard and disposed of six applications for

bail p

 

ending appeal and none of them had an affidavit in reply filed by

the D

 

PP yet four of them were so incompetent that the Advocates simply

withdr

 

ew them.

5

 

 

Be that as it may, Mr. Nyonyintono learned counsel for the applicant

submitt

 

ed that the applicant had sufficient grounds upon which court

ought

 

to release him on bail pending appeal. He submitted that

excep

 

tional circumstances exist upon which the applicant ought to be

grant

 

ed bail.

10

 

 

I have listened to the arguments of learned counsel for the applicant and

the resp

 

onse by learned counsel for the respondent. I have studied the

Notice

 

of Motion and the accompanying affidavit. I also studied carefully

the an

 

nextures to the affidavit. Neither counsel filed a list of authorities.

Howev

 

er Mr. Nyonyintono referred me to the case of Arvind Patel Vs

15

 

 

Uganda from the bar.

The N

 

otice of Motion sets out eight grounds, a close look at them

reveals

 

that only 4 are relevant that is paragraphs 3, 4, 5, and 6 which

can be s

 

ummarised as follows:-

3

1.That the applicant is sickly and has a history of asthma that is

detoriating.

2. That he has filed a Notice of Appeal in this Court.

3

 

 

. That he is a first offender and the offence he was convicted of

5

 

 

does not involve personal violence.

4. That he, when he was previously released on bail he complied with

bail conditions.

The affidavit in support of the Notice of Motion expounds in the above

grounds.

10

 

 

The applicant is now 54 years old, as he was born on 30th April 1959.

His driving permit which was availed to court is proof. He was convicted

by the High Court on 25

 

th May 2012 for two counts of Causing Financial

Loss

 

CIS 20(1) of the Anti-Corruption Act and Conspiracy to defraud CIS

309 of the Penal Code Act

 

.

15

 

 

He was sentenced to six years in jail for each of the two counts of

causing Financial Loss and one year for Conspiracy to Defraud the

4

sent

 

ences are running concurrently and I was availed a copy of the

Judg

 

ement.

On 6

 

th June 2012 the applicant lodged at this Court a Notice of Appeal;

agai

 

nst both sentence and conviction and filed a memorandum of appeal

5

 

 

on 19th June 2012 copies of both documents were also availed to me.

The j

 

urisdiction of this court to grant bail pending appeal is not in

dispu

 

te. It is derived from section 132(4) of the Trial on Indictments Act

and

 

Section 40 of the Criminal Procedure Code Act.

Since

 

jurisdiction is not in issue I find no reason to reproduce the above

10

 

 

law here. Suffice it to say that power to grant bail is discretionary. It is up

to thi

 

s court to grant or not to grant bail. But discretion cannot be granted

in a v

 

acuum, neither can it be exercised arbitrary or subjectively. The

discre

 

tionary power of court must be exercised sparingly, objectively and

most i

 

mportantly judiciously.

15

 

 

The law relating to bail pending appeal is provided for under Section 132

(4) of

 

the Trial of Indictments Act, so this section grants jurisdiction to

this co

 

urt to grant bail. Similarly Section 40(2) of the Criminal Procedure

Code

 

Act does the same.

5

However both of these above Sections must be read together with

Section 14 and 15 of the Trial of Indictments Act which relate to

conditions for grant of bail

 

. Although Section 15 of the Trial of

Indictments Act relates to release of bail at the High Court, it is my view

5

 

 

that it sets the bench mark. It sets out the minimum conditions required

for release of accused on bail pending or during trial

 

. At this stage the

accused is shielded by the constitutional right of the presumption of

innocence. He is not yet a convict

 

. It follows therefore that upon

conviction the applicant has to satisfy the conditions set out under

10

 

 

section 15 as the bear minimum.

However due to the absence or suspension of the presumption of

innocence, the applicant has a much greater burden of proof at this

stage

 

.

Accordingly this court must apply the requirements of Section 15 of the

15

 

 

Trial of Indictments Act and in addition and NOT in alternative also follow

the guidelines set out in case law.

In this regard the Supreme Court has set guidelines to be read and

applied together with Section 15 of the Trial of Indictments Act

 

.

6

Sec

 

tion 15 of the Trial of Indictments Act is to the effect that application

for b

 

ail at the High Court must prove to the satisfaction of Court that

exce

 

ptional circumstances exist justifying his or her release on bail.

It de

 

fines exceptional circumstances to mean any of the following:_

5

 

 

1. Grave illness certified by a medical officer of the prison or

other institution or place where the accused is detained

 

as

being incapable of adequate medical treatment whi

 

le the

accused is in custody.

(b) A certificate of no objection signed by the

 

DPP or

10

 

 

(c) The infancy or advanced age of the accused.

In ad

 

dition to the above court must also consider whether or not the

accuse

 

d is likely to abscond and in doing so High Court is required to

take in

 

to account the following factors under Section 15 (4) of the Trial of

Indict

 

ments Act.

15

 

 

a) Whether the accused has a fixed place of abode within the

j

 

urisdiction of court or is ordinarily resident outside Uganda.

7

b) Whether the accused has sound securities within the jurisdiction to

undertake that the accused shall comply with the conditions of his

or her bail;

c) Whether the accused has on previous occasion when released on

5

 

 

bail failed to comply with the conditions of his or her bail; and

d) Whether there are other charges pending against the accused.

In addition to the above court is required to take into account the

guidelines set out in

 

(Supreme Court Criminal Application No. 1 of 2003)

Arvind Patel Vs Uganda. These are:-

10

 

 

a) The character of the applicant.

b) Whether he or she is a first offender or not

c) Whether the crime of which the applicant was convicted involved

personal violence.

d) Whether the applicant has complied with bail conditions granted

15

 

 

after the applicants conviction and during the pendency of the

appeal

 

.

8

As s

 

tated in the Arvind Patel case (supra) all these conditions need not

be p

 

resent in every case. A combination of two or more criteria may be

suffici

 

ent provided in my view exceptional circumstances have been

proved

 

to exist.

5

 

 

In this case the applicant has proved that he is 54 years old. In Uganda

a pers

 

on of 50 years and above is by law considered to be of advance

age.

 

See Andrew Adimola Vs Uganda (Criminal Miscellaneous

Appli

 

 

cation NO.9 of

1992), Francis Ogwang Vs Uganda, (Criminal

Appli

 

 

cation No.

25 of 2003) and Vicent Nyanzi vs Uganda (Criminal

10

 

 

Application No.

7 of 2001), are High Court decisions which have been

cited

 

with approval in this court in (Constitutional Application No. 25 of

2012)

 

 

 

Lt. Colonel John Kaye Vs Attorney General. I have no reason to

differ

 

.

In th

 

is regard therefore the applicant has proved exceptional

15

 

 

circumstances. However, since this is bail pending appeal, he has also

to satisfy c

 

ourt that he will not abscond when granted bail. He has

satisf

 

ied court that he is a married man with a wife and six children. That

9

he has a fixed place of abode, at Budumbuli West, Bugembe Town

Council, Jinja District

 

.

Although no specific proof has been provided to confirm he is of good

character, no evidence has been brought to the contrary either. Am

5

 

 

inclined to give him the benefit of doubt.

From the judgment of the High Court, I have ascertained that the

applicant is a first offender with no previous criminal record.

The offence he was convicted of did not involve personal violence. I

have noted that the memorandum of appeal was filed promptly after the

10

 

 

judgment on 19th June 2012 and i have not found it frivolous and being a

first appeal it has some chance of success. Am unable to determine

anything more than that is this regard.

The applicant complied with bail terms when he was first released on

bail

 

. This evidence is on record.

15

 

 

The applicant was sentenced to six years imprisonment; on 29th May

2012, he has already served more than one year of that sentence. It has

taken more than one year from the date of filing the Notice of Appeal in

this Court to the hearing of this application. It is not far fetched to

10

sug

 

gest that it may take another 12 months or more before the appeal is

heard a

 

nd determined. Even though new Justices of Appeal have

appo

 

inted, there are many pending appeals and applications before this

court,

 

as a result the applicant may have served a substantial part of his

5

 

 

sentence before the appeal is determined. In the event that his appeal is

succe

 

ssful, he would have suffered irreparable loss and injustice. If on

the oth

 

er hand he is unsuccessful he will be required to go back to jail

and c

 

omplete his sentence.

The m

 

ost important thing therefore is to ensure that he does not

10

 

 

abscond and he turns up for his appeal. He has presented a number of

suret

 

ies to ensure this. I have found them substantial. The respondent

has h

 

ad time to vet them, and has no objection.

I acco

 

rdingly allow this application. The applicant is hereby admitted to

15

 

 

bail pending appeal on the following terms:-

1.

 

He shall deposit Shs. 10.000.000/= as cash bail in this Court

before release

 

.

11

L

 

 

.. t:acn or rus sureties snail execute a bond of 20.000.000 NOT

cash.

3

 

. He shall report to this Court every 1st Monday of each month

beginning 2

 

nd September, 2013.

5

 

 

4. The conditions shall not be varied by the Registrar.

Befo

 

re I take leave of this matter I would like to observe as follows:-

That the High Court of Uganda has resident judges spread allo

 

ver

the country

 

. In addition there are regular High Court circuits held

allover the country on a regular basis

 

. On the other hand except

10

 

 

on very few occasions this court sits almost exclusively at

Kampala

 

.

Almost all appeals from the High Court have to be filed a

 

t the

Registry of this Court. Almost all applications for bail pendi

 

ng

appeal are filed, heard and determined by the Court of Appea

 

l at

15

 

 

Kampala.

12

.

 

 

:,;

.

 

 

j,

.

 

 

"

"

 

 

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;

}

5

i

;

Successful applicants are also more often than not required to

renew their bail at Kampala. Although this is expensive and

inconvenient. It is none the less desirable.

It seems in my view that the High Court has powers to grant bail

pending appeal to the Court of Appeal. For reasons I have not

ascertained these applications have only been filed at this court.

Section 132 (4)

 

 

of the Trial of Indictments Act provides as follows:-

"

 

Except in case where the appel/ant has been sentenced to

death

 

, a judge of the High court, or the Court of Appeal may

10

 

 

in his or her own discretion, in any case in which an appeal

to the Court of Appeal is lodged under this section

 

, grant bail,

pending the hearing and determination of the appeal

 

"

Am therefore of the considered view that a High court judge has

jurisdiction to hear and determine applications such as this one under

15

 

 

the above law and they should freely do so.

Dated at Kampala this 26th day of August 2013

 

Kenneth Kakuru

Justice of appeal

20

13