Asio v Uganda (Criminal Miscellaneous Application 55 of 2024) [2024] UGHC 756 (13 August 2024)

Full Case Text

## The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Miscellaneous Criminal Application No. 55 of 2024

(Arising from Criminal Appeal No. 02 of 2024)

(Arising from Criminal Case No. 96 of 2022 (Serere))

$\mathcal{A} = \mathcal{A} \cup \mathcal{A}$

Asio Fatuma ::::::::::::::::::::::: ....................................

Versus.

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Uganda :::::::::::::::::::::::::::::::::::

# Before: Hon. Justice Dr Henry Peter Adonyo

## Ruling on Bail on Appeal:

### 1. Background:

Asio Fatuma (the applicant) was convicted of theft contrary to sections 254(1) and 261 of the Penal Code Act and sentenced to 36 months in prison with an additional order of compensation of UGX 8,120,000 to be paid within four months after serving the sentence by His Worship Okiror Edmond Okwii, the Magistrate Grade One of Serere, on 29th February 2024.

The particulars of the offence were that the applicant, on 25th February 2022 at Kagwara Town Council in Serere district, stole one Yamaha boat engine (Horsepower

9.9) and a weighing scale, all valued at shs 8,120,000, the property of Wabugo $\mathsf{S}$ Yakubu.

The applicant appealed against the conviction and sentence in Criminal Appeal No. 02 of 2024 filed in this court on 06th March 2024, which is still pending before this Honourable Court. She is on remand at Uganda Government Prison Serere.

#### 2. Legal basis of the Application: 10

The applicant brought this application by a Notice of Motion under Articles 23(6)(a) and 28(3)(a) of the Constitution of the Republic of Uganda, 1995, (the Constitution), Sections 40(1) and (2) of the Criminal Procedure Code Act, Cap 116, and Section 17(2) of the Judicature Act, Cap 13 for orders that the applicant now on a convict be granted bail pending the hearing and determination of her Appeal No. 02 of 2024.

## 3. Grounds:

The applicant deposed grounds anchoring the application in her affidavit in support, which is on the court record, but I will briefly point out a few.

- The applicant has filed an appeal against her conviction vide Criminal Appeal $\overline{\phantom{a}}$ No. 55 of 2024. - The applicant was previously granted bail during the trial, which is the subject of this appeal, which she fully honoured. - The applicant's fixed place of abode is Akisim Cell 1, Akisim Ward, Soroti City East, Soroti City, within the jurisdiction of this Court. - The offence for which the applicant was convicted does not carry the death sentence.

- The applicant is a first-time offender, and she has never previously been convicted of a criminal offence. - The appeal is not frivolous and has a high possibility of success. - There is a possibility of substantial delay in determining the appeal. $\overline{\phantom{a}}$ - 4. Grounds in objection Affidavit in Reply: - The perusal of the court record shows that there is no affidavit in reply filed by the 10 respondent objecting to the instant application in spite of being served with the instant application, the Notice and the Memorandum of Appeal by one Ecutu Robert on 23rd April 2024 which was received by the Directorate of Public Prosecutions Regional Office – Soroti as shown by a receipt stamp dated 23rd April 2024 on the - return copy of the instant application and confirmed in an affidavit of service filed in 15 this court on 2nd May 2024. Therefore, this application is unopposed.

## 5. Submissions:

$\mathsf{S}$

The applicant filed written submissions arguing this application through Counsel Engwau George. In making its decision, the court reviewed the submissions, application, affidavit, documents, legal authorities, and laws. 20

### 4. Decision:

Bail is, according to the Black's Law Dictionary, 9th Edition, on page 160, is a security such as cash or a bond, esp., security required by a court for the release of a prisoner who must appear in court at a future time.

Bail has also been defined as "an agreement between the Court and an applicant 25 consisting of a bond with or without surety for a reasonable amount as the circumstances of the case permit, conditioned upon the applicant appearing before such a court on a date and time as named in the bond to start his trial"

(see: *Uganda Vs Lawrence Luzinda [1986]HCB 33*, per Okello J as he then was. $\mathsf{S}$

In Nakiwuge Racheal Muleke vs Uganda Supreme Court Criminal Reference No. 12 of **2020, the Supreme Court pointed out that;**

" We agree that the 1995 Constitution does not provide for the right to apply for bail pending appeal. It does not specifically rule it out either. We also agree that once an accused person is convicted, the presumption of innocence is extinguished.

However, we respectfully disagree with the learned single Justice's conclusion that the applicant has no right to apply for bail pending appeal. We find and hold that although the Constitution does not expressly provide for such right, the Supreme Court Rules do provide for it and should therefore be relied on whenever such applications are made to this court."

Aligned with the *Nakiwuge Racheal Muleke vs Uganda* case (above), Section 40 (2) of the Criminal Procedure Code Act, Cap 116, provides for the admission of an appellant to bail as it states that;

(1) ....................................

(2) The appellate court may, if it sees fit, admit an appellant to bail pending the determination of his or her appeal; but when a magistrate's court refuses to release a person on bail, that person may apply for bail to the appellate court.

As the Supreme Court in the case of Nakiwge Racheal Muleke vs Uganda (supra) concluded, the grant of bail pending appeal is discretionary and differs from case to 25 case because every case presents its own facts and circumstances.

$\overline{5}$ The Supreme Court noted further in *Nakiwuge Racheal Muleke vs Uganda* (supra) that:

> "Whereas bail is a right and court has discretion, conditions for pre-conviction bail and those for a convict like Patel should be different. In one the applicant is innocent before the law. In Patel and in the instant application, applicants are convicts. All in all, the Arvind Patel case was rightly decided and we uphold it as the proper position of the law."

The case of Arvind Patel vs Uganda SCCA No. 1 of 2003 sets out the considerations for the grant of bail pending appealand these are;

- The character of the applicant; - Whether he/she is a first offender or not; - Whether the offence of which the applicant was convicted involved personal violence; - The appeal is not frivolous and has a reasonable possibility of success; $\overline{\phantom{a}}$ - The possibility of substantial delay in the determination of the appeal. $\cdot$ - Whether the applicant has complied with bail conditions granted after the applicant's conviction and during the pendency of the appeal (if any).

(see also: David Chandi Jamwa Vs. Uganda SCMA No. 09 of 2018, and Kyeyune Mitala Julius Vs. Uganda, SCCA No. 9 of 2016.

Therefore, it is settled law that an appellant who is not admitted to bail by a lower trila court may apply for bail pending appeal whose grant is discretionary and 25 dependent only when exceptional and unusual circumstances have been fulfilled. The court must also be satisfied that the applicant shall not abscond but will comply with the bail conditions and will be available to attend the hearing of the appeal.

In this application, the applicant avers that she is a first offender with no previous $\mathsf{S}$ criminal record and that the offence she committed did not involve personal violence. This is a fact as seen from the type of the ofence she was charged with and was convicted of, that is, theft contrary to sections 254(1) and 261 of the Penal Code Act and sentenced to 36 months in prison with an additional order of compensation

of UGX 8,120,000 to be paid within four months after serving the sentence 10

I note that the respondent has not opposed that averment and there is no known information controverting the applicant's averment as to being a first offender, I am thus inclined to believe her averment in this respect.

It is also evident to this court that the offence of theft, contrary to sections 254(1) and 261 of the Penal Code Act with which the applicant was convicted, did not 15 involve personal violence.

The applicant averred that she lodged an appeal through a notice and memorandum of appeal. However, she did not attach annexures "C" and "D"; nevertheless, upon perusal of the record, I note that there is pending an appeal registered as Criminal

Appeal No. 2 of 2024 is in respect of the applicant which proves that assertion. 20

The applicant also referred this court to annexure "E", which she averred to contain the photostat copy of the bail form and the record of proceedings to prove that while being tried by the lower trial court of Serere Magistrate's court, she was granted bail whose terms she duly complied with. However, annexure "E" was not

attached thus this appellate court is unable to prove the fact that the applicant duly 25 complied with all or any of the terms of bail therein. Therefore, there is no factual basis upon which this court would based itself in proof of that assertion and as such the same fails.

The applicant referred this court to annexures F1-F2 containing copies of her $\mathsf{S}$ National Identification card and introduction letter as proof that she has a fixed place of abode at Akisim Cell 1, Akisim Ward, Soroti City East in Soroti City, within the jurisdiction of this Court.

I have only examined annexure F1 which is the LC1 letter which asserts that the applicant resides in Akisim Cell 1, Akisim Ward, Soroti City East in Soroti City. Annexure F2 was not attached though.

However, the LC1 letter is sufficient as proof of the applicant's averment that the applicant has a permanent place of abode within the jurisdiction of this Honourable Court.

- Additionally, the applicant referred this Honourable Court to two proposed sureties 15 whose particulars are contained in annexures G1-G4 which have been examined. The annextures are proof of identification (national identity cards) and residency within the jurisdiction of this honourable court (LC1 letters) of the proposed sureties. - In addition, the first surety, Mr. Nduga Yahaya, is disclosed as the husband to the 20 applicant with the second surety, Mr Keleba Yusuf, disclosed as a brother-in-law to the applicant.

The sureties' relationships with the applicant prove that they have the capacities to exercise control over the applicant and thus are able to ensure that she returns to the court to attend her appeal whenever required. I, therefore, find them suitable.

I have correspondingly perused the application and the attached "applicant's supplementary affidavit" and noted that the applicant neither pleaded nor

established any exceptional or unusual circumstances to merit the grant of the $\mathsf{S}$ instant application.

These circumstances are required under Section 15(3) of the Trial on Indictment Act, and they include;

(a) a 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 10 treatment while the accused is in custody;

(b) a certificate of no objection signed by the Director of Public Prosecutions; or

I note from the submissions of counsel that he listed "the possibility of a substantial

delay in the determination of the appeal", but this assertion was not averred to by 15 the applicant herself in her affidavit in support of the application, leaving the submission of learned counsel to ber one from the bar.

In the case of Bamutura Henry vs Uganda SC Misc. Appln. No. 9 of 2019, Hon. Lady Justice Prof. Lillian Tibatemwa-Ekirikubinza was very clear on applications for bail pending appeal when she stated that;

"When hearing an application for bail pending appeal, the presumption of innocence will have already been rebutted by the fact that the two lower courts convicted the applicant and as such, to grant bail to such an applicant/convict, there must exist some unusual and exceptional circumstances."

I would agree with that conclusion and would add that grave caution must always 25 be taken by court when considering bail pending appeal given the fact that an applicant like the instasmt on is a convict and any irresponsible granting of bail can

easily pervert the cause of justice as there is always a very high chance of flight by a $\mathsf{S}$ convict given the fact of conviction. And so the level of caution is thus higher than in a case where an applicant is merely a suspect.

Accordingly, while the applicant has satisfied all the other factors such as having a fixed place of abode and presenting substantial sureties, I am of the considered view

- that for if this application is to succeed, the applicant must plead and show 10 exceptional or unusual circumstance, which as I have noted above, the Applicant has failed thus rendering this application to be moot as there is no proof to show that her appeal is not frivolous and has a reasonable possibility of success and that there is the possibility of substantial delay in the determination of the appeal given - thew fact that appellant was just recently convicted by the lower trial court on 29th 15 February 2024 and her appeal is set for hearing on 11th September, 2024.

## 6. Conclusion:

The above being so, this application is found to have no merit and it is hereby dismissed accordingly.

I so order. 20

Hon. Dr. Justice Henry Peter Adonyo

Judge 13th August 2024.