THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CRIMINAL APPLICATION NO. 44 OF 2012
LUBI GODFREY ------------------------------------------------------ APPLICANT
GANDA -------------------------------------------------------------------- RESPONDENT
ORAM: HON MR. JUSTICE KENNETH KAKURU, JA.
is is an application for grant of bail pending appeal. It is brought by
way of Notice of Motion under Article 23(6) (a) of the Constitution,
tion 40 of the Criminal Procedure Code Act, Section 132 (4) of the
l on Indictments Act and Rule 6, 43 & 44 of the rules of this Court.
the hearing of this application the applicant was represented by Mr.
5 Asuman Nyonyintono and Mr. Fred Kakooza Principal State Attorney
appeared for the respondent. However Mr. Kakooza was not ready
oceed. He had no case file and applied for adjournment on that
unt. I declined to grant the adjournment. Because this application
been before this Court previously on 10th January, 2013 and at that
Mr. Byansi who appeared for the respondent failed to proceed on
ount that the DPP had been served late. The matter was stood over
he presiding judge to allow him peruse the file; again he was unable
to proceed, in the afternoon. In the result the application was adjourned
die. That was more eight months back. There is a possibility that
applicant could have been released on bail in January 2013. Eight
ths later he is still in jail on account of inefficiency and neglect of the
s office. Even if bail had been denied the applicant would have
been saved the trouble and the legal expenses and courts time would
been saved. The DPP has never bothered to file an affidavit in
n this case which was filed in November 2012.
kind of attitude by the DPP's office and specifically by individual
Attorneys is completely unacceptable at this Court. The conduct of
both Mr. Byansi and more especially Mr. Kakooza is unprofessional and
ceptable. It verges on neglect of duty and abuse of office. Am
ing that a copy of this ruling be served on the person of the DPP
21st day of August 2013, I heard and disposed of six applications for
ending appeal and none of them had an affidavit in reply filed by
PP yet four of them were so incompetent that the Advocates simply
Be that as it may, Mr. Nyonyintono learned counsel for the applicant
ed that the applicant had sufficient grounds upon which court
to release him on bail pending appeal. He submitted that
tional circumstances exist upon which the applicant ought to be
I have listened to the arguments of learned counsel for the applicant and
onse by learned counsel for the respondent. I have studied the
of Motion and the accompanying affidavit. I also studied carefully
nextures to the affidavit. Neither counsel filed a list of authorities.
er Mr. Nyonyintono referred me to the case of Arvind Patel Vs
Uganda from the bar.
otice of Motion sets out eight grounds, a close look at them
that only 4 are relevant that is paragraphs 3, 4, 5, and 6 which
can be s
ummarised as follows:-
1.That the applicant is sickly and has a history of asthma that is
2. That he has filed a Notice of Appeal in this Court.
. That he is a first offender and the offence he was convicted of
does not involve personal violence.
4. That he, when he was previously released on bail he complied with
The affidavit in support of the Notice of Motion expounds in the above
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
CIS 20(1) of the Anti-Corruption Act and Conspiracy to defraud CIS
309 of the Penal Code Act
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
ences are running concurrently and I was availed a copy of the
th June 2012 the applicant lodged at this Court a Notice of Appeal;
nst both sentence and conviction and filed a memorandum of appeal
on 19th June 2012 copies of both documents were also availed to me.
urisdiction of this court to grant bail pending appeal is not in
te. It is derived from section 132(4) of the Trial on Indictments Act
Section 40 of the Criminal Procedure Code Act.
jurisdiction is not in issue I find no reason to reproduce the above
law here. Suffice it to say that power to grant bail is discretionary. It is up
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
tionary power of court must be exercised sparingly, objectively and
The law relating to bail pending appeal is provided for under Section 132
the Trial of Indictments Act, so this section grants jurisdiction to
urt to grant bail. Similarly Section 40(2) of the Criminal Procedure
Act does the same.
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
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
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
Accordingly this court must apply the requirements of Section 15 of the
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
tion 15 of the Trial of Indictments Act is to the effect that application
ail at the High Court must prove to the satisfaction of Court that
ptional circumstances exist justifying his or her release on bail.
fines exceptional circumstances to mean any of the following:_
1. Grave illness certified by a medical officer of the prison or
other institution or place where the accused is detained
being incapable of adequate medical treatment whi
accused is in custody.
(b) A certificate of no objection signed by the
(c) The infancy or advanced age of the accused.
dition to the above court must also consider whether or not the
d is likely to abscond and in doing so High Court is required to
to account the following factors under Section 15 (4) of the Trial of
a) Whether the accused has a fixed place of abode within the
urisdiction of court or is ordinarily resident outside Uganda.
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
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:-
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
d) Whether the applicant has complied with bail conditions granted
after the applicants conviction and during the pendency of the
tated in the Arvind Patel case (supra) all these conditions need not
resent in every case. A combination of two or more criteria may be
ent provided in my view exceptional circumstances have been
In this case the applicant has proved that he is 54 years old. In Uganda
on of 50 years and above is by law considered to be of advance
See Andrew Adimola Vs Uganda (Criminal Miscellaneous
cation NO.9 of
1992), Francis Ogwang Vs Uganda, (Criminal
25 of 2003) and Vicent Nyanzi vs Uganda (Criminal
7 of 2001), are High Court decisions which have been
with approval in this court in (Constitutional Application No. 25 of
Lt. Colonel John Kaye Vs Attorney General. I have no reason to
is regard therefore the applicant has proved exceptional
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
ied court that he is a married man with a wife and six children. That
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
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
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
. This evidence is on record.
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
gest that it may take another 12 months or more before the appeal is
nd determined. Even though new Justices of Appeal have
inted, there are many pending appeals and applications before this
as a result the applicant may have served a substantial part of his
sentence before the appeal is determined. In the event that his appeal is
ssful, he would have suffered irreparable loss and injustice. If on
er hand he is unsuccessful he will be required to go back to jail
omplete his sentence.
ost important thing therefore is to ensure that he does not
abscond and he turns up for his appeal. He has presented a number of
ies to ensure this. I have found them substantial. The respondent
ad time to vet them, and has no objection.
rdingly allow this application. The applicant is hereby admitted to
bail pending appeal on the following terms:-
He shall deposit Shs. 10.000.000/= as cash bail in this Court
.. t:acn or rus sureties snail execute a bond of 20.000.000 NOT
. He shall report to this Court every 1st Monday of each month
nd September, 2013.
4. The conditions shall not be varied by the Registrar.
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
. In addition there are regular High Court circuits held
allover the country on a regular basis
. On the other hand except
on very few occasions this court sits almost exclusively at
Almost all appeals from the High Court have to be filed a
Registry of this Court. Almost all applications for bail pendi
appeal are filed, heard and determined by the Court of Appea
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
, a judge of the High court, or the Court of Appeal may
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
the above law and they should freely do so.
Dated at Kampala this 26th day of August 2013
Justice of appeal