Akuku v Uganda (Criminal Miscellaneous Application 12 of 2023) [2024] UGHC 453 (10 June 2024)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA CRIMINAL MISC. APPLICATION NO. 012 OF 2023 (Arising from Criminal Appeal No. 0006 of 2023) (Arising from Criminal Case No. 039 of 2022, CRB No. 635 of 2022)

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AKUKU VICTOR CHANDIGA:::::::::::::::::::::::::::::::::::: **VERSUS**

UGANDA:::::::::::::::::::::::::::::::::::

15 Before Hon. Justice Acellam Collins.

## Ruling.

This ruling is in respect of an application filed by Notice of Motion under section 132(4) of the Trial on Indictments Act, Cap. 23, Section 40 of the Criminal Procedure Code Act, Cap. 116, and Rule 2 of the Judicature (Criminal Procedure) (Applications) Rules, SI 13-8. The Application is seeking for orders that the Applicant be released from Openzizi Prison Farm on bail pending the determination of Criminal Appeal No. 006 of 2023 filed before this court.

The background to the Application is that the Applicant was charged before the Grade One Magistrate's Court of Adjumani, on the first count, for the offence of Theft contrary to section 254 and 261 of the Penal Code Act; and on the second Count, with the offence of Forgery contrary to section 342 and 347 of the Penal Code Act. Having been convicted of the two offences, on the 15/6/2023 he was sentenced to serve 3 years imprisonment on the first count and 1 year · imprisonment, both sentences were to run concurrently and ordered to pay 39,000,000/=to the complainant within a period of 1 year from the completion of the custodial sentence.

The Applicant filed in this Court a Notice of Appeal on the 23/6/23 and a Memorandum containing the grounds of appeal and lodged this application on the $20/7/23$ . The Application is supported by the Affidavit of the Applicant containing the grounds on which the application is


- $\mathsf{S}$ based. Briefly the grounds, apart from the conviction and orders of the Chief Magistrate's Court, are that; - 1. The Applicant's conduct while on bail in the Magistrate's Court was compatible with his bail terms at all times until he was convicted and sentenced - 2. He lodged an appeal in this court with a high likelihood of success; - 3. That he will not abscond once released on bail and he has substantial sureties who are prepared to guarantee his return for trial/hearing of his appeal; - 4. That he has a fixed place of abode within the jurisdiction of this court, and - 5. That it is fair and in the interest of justice that the Applicant is granted bail is so far as in the event of his acquittal on appeal, he will never be compensated for the suffering he will have gone through while in detention.

The Respondents on the other hand opposed the Application and filed the affidavit of Achingo Jemimah, a State Attorney in the Office of the Director of Public Prosecutions containing the grounds of opposition to the Application.

At the hearing the Applicant was represented M/s Matovu N. J. & Co., Advocates while the Respondents were represented by the *Office of the Director of Public Prosecutions*. Both Counsel filed written submission which I have taken into consideration in coming up with this ruling.

- In his submissions Counsel for the Applicant referred this Court the case of Arvind Patel Vs. 25 Uganda, Criminal Application No. 1 of 2003 which laid down the guidelines to be followed by an Appellate Court faced with an application of this nature; as follows - 1. The character of the Applicant; - Whether he or she is a first offender or not; 2. - $3.$ Whether the offence with which the applicant was convicted involved personal violence. - 4. The appeal is not frivolous and has a reasonable possibility of success. - The possibility of substantial delay in the determination of the appeal. $5.$ - Whether the applicant has complied with bail conditions granted after conviction and 6. during the pendency of the appeal, if any;

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- $\mathsf{S}$ He submitted that from the above authority, and a host of authorities on the subject matter, it is not necessary that in every case, all these conditions must be present. A combination of two or more criteria may be sufficient and each case must be considered on its own facts and circumstances. It is therefore necessary to establish which of the conditions have been satisfied to determine whether they are sufficient for the court to grant the applicant bail pending the hearing and disposal of the 10 appeal. - The Applicant highlighted the powers of this court to grant the Applicant bail under sections 40(2) of the Criminal Procedure Code Act, section 205 of the Magistrate's Court Act and the conditions that such an applicant has to satisfy under the Constitution (Bail Guidelines for Courts of

15 Judicature) (Practice) Directions, Legal Notice No. 8 of 2022.

They further submitted that the Applicant is a Ugandan citizen with a fixed place of abode at Central II Village, Central Ward, Moyo Town Council in Moyo District within the jurisdiction of this Honourable Court. That the Applicant has sufficient sureties within Uganda to undertake that he shall comply with the conditions of his bail. They filed on record particulars of three sureties together with copies of their National Identity Card and Introduction Letters from their LC1 Chairpersons. They included the following:

1. Drichi Edward Gift; aged 53 years old, a brother of the Applicant and a resident of Pavuraga Cell, Cesia Ward, Adjumani Town Council, Adjumani District. This is confirmed by his National Identity Card and Introduction Letter from his LC1 Chairman dated 7/7/2023.

2. Mawadri Ramahan Drami, a cousin of the Applicant aged 44 years and a resident of Forua Cell, Central Ward, Adjumani Town Council in Adjumani District.

3. Chandiga Stephen; a brother to the Applicant aged 40 years and a resident of Lajopi Cesia Cell, Cesia Ward, Adjumani Town Council in Adjumani District.

The Applicant also submitted that in addition to the above conditions the Applicant has to satisfy the conditions set out in the case of Arvind Patel Vs. Uganda, Supreme Court Criminal


$\mathsf{S}$ **Application No. 001 of 2003.** That the Applicant is a first-time offender, the offence for which he is convicted is not one that involved violence, the appeal is not frivolous and there is a possibility of substantial delay in the determination of the appeal as the same has not yet been cause listed. They also submitted that the Applicant has been released on bail before and has complied with the conditions of his bail until the time of his trial and conviction.

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The respondent in the affidavit in reply and their submissions opposed the application and submitted that this application must be guided by two important factors, i.e. *the gravity of the* offence, and the likelihood of success of the appeal.

- They cited the case of Bamututra Henry vs. Uganda; Supreme Court Miscelaneous Application 15 *No. 19/2019* in which the Court held that the gravity of the offence must and cannot be exclusively defined in terms of whether it involved violence or not by its very nature, the offences of embezzlement, forgery and uttering false documents cannot by any stretch of anyone's mind involve violence. - 20

I have taken into consideration the application, the evidence, and the submissions both in support of and in opposition to the application. There is a wealth of authority setting out the conditions for grant of an application for bail pending appeal. The case of **Arvind Patel(Supra)** is the leading . authority on the subject. In that case Justice Oder (JSC) pointed out these conditions which included whether the appeal is not frivolous and has reasonable prospects of success. Other factors included whether the applicant has previously been granted and complied with the terms of bail granted by the lower court. Others include the character of the applicant, whether he is a first offender, whether the offence with which he is convicted involved personal violence and the possibility of a substantial delay in the determination of the appeal. It is not a requirement that all the conditions set out in

30 the above authority must be satisfied, a combination of two or more of them will suffice.

In Busiku Thomas v Uganda; Criminal Appeal No. 33 of 2011, the Supreme Court held: It should also be further noted that the presumption of innocence guaranteed to a person accused of a crime ends when the accused person is found by an impartial Court guilty of

the offence he or she was charged with. From this point onward, the interest of justice demands that the courts should not only take into account the rights of the convicted person, but also the interest of the victim and the society as a whole."

Section 40(2) of the Criminal Procedure Code Act; Cap 116 bestows on an Appellate Court the discretion to admit an appellant on bail pending his appeal. It provides as follows;

> The appellate Court may, if it sees fit, admit an appellant to bail pending the determination of his or her appeal...............

It is apparent from the above provision that the power to grant bail in such circumstances is discretionary as in bail pending trial. And such discretion must be exercised judiciously and in accordance with the principles set out in the above authorities. To this end the court is still enjoined to take into consideration factors that the court would consider in an application for bail pending trial particularly those which would guarantee that the applicant once released on bail will not abscond.

The Applicant in this case has satisfied some of the conditions such as having a fixed place of abode, 20 having substantial sureties and in accordance with the authority of Arvind Patel, that he is a first offender, the offence for which he is convicted is not one that involved violence, that he has complied with the conditions of bail granted to him in the lower court. However, that is not to say in such scenario bail is automatic. There is therefore need for the Applicant to demonstrate that 25 there is good reason to release him on bail. This requirement is further necessary on account of the fact that, at this stage, the Applicant is a convict having been found guilty by the trial court and therefore does not benefit from the presumption of innocence.

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It is therefore important for this court to determine whether there is good reason for the applicant to be released on bail and there are sufficient guarantees that he is committed to returning to court to pursue his appeal to ensure that the intention is not only to avoid the sentence for an offence for which he has already been convicted. In my view therefore such an applicant must demonstrate that he has an appeal which is not frivolous with a reasonable probability of success. He also has to show that there is a possibility of a substantial delay in the disposal of his appeal.


- 5 I note that in this particular case the Applicant lodged a Notice of Appeal on $23/6/23$ and filed in this court a Memorandum of Appeal on 20/7/23. The record also shows that the applicant has been availed the record of proceeding and the judgement but has not taken any positive step to have the appeal scheduled for hearing. - 10 This application first came up for hearing on 27/9/23 and the court directed the Applicant to serve both the appeal and the application on the Respondents. To date there is no record of service of the appeal on the Respondent. I agree with the Respondent that the Applicant is only desirous of having the application heard and not the appeal. - 15 · In conclusion, I am not satisfied that the Applicant has shown sufficient reason to warrant the exercise of this Court's discretion to release him on bail pending the determination of his appeal. For the above reasons the application is dismissed.

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**ACELLAM COLLINS** JUDGE.