Hawal Shaban v Uganda (Miscellaneous Application No. 159 of 2019) [2020] UGCA 2040 (10 March 2020)


THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

**Miscellaneous Application No. 159 of 2019** (Arising from Court of Appeal Criminal Appeal No. 93 of 2014)

Hawal Shaban ::::::::::::::::::::::::::::::::::: $15$

#### **Versus**

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

Hon. Justice Remmy Kasule, Ag. JA sitting as a Coram: single Justice $20$

# **Ruling of the Court**

This ruling is in respect of an application for bail pending appeal lodged in this Court under Articles 23(6), 28(3) and 34 (1) of the Constitution of the Republic of Uganda, and Section 14 of the $25$ Trial on Indictments Act, Cap 23 for an order that this Honourable Court be pleased to release the applicant on bail pending disposed of his Criminal Appeal No. 093 of 2014, which is pending in this Court.

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- The applicant was indicted, tried and convicted of the offence of $30$ Aggravated defilement contrary to **Section 129 of the Penal Code Act** by the High Court of Uganda at Mbale on the 22<sup>nd</sup> December, 2009. He was sentenced to life imprisonment. Dissatisfied with the decision of the High Court, he lodged an appeal in this Court vide - Criminal Appeal No. 93 of 2014 against both conviction and 35 sentence. He then filed this application seeking for bail pending appeal.

The grounds of the application are set out in the notice of motion as follows:-

- "a. That the applicant has a constitutional right to 40 apply for bail in this Honourable Court. - b. That the offence for which the applicant is indicted of is bailable by this Honourable Court. - c. That the applicant is still presumed innocent until proven to the contrary and besides, he has no previous criminal record or any other pending criminal charges against him. - d. That the applicant has sound and substantial sureties who are willing to stand for him. - e. That the applicant shall not interfere in any way with the evidence and witnesses and will not abscond if granted bail. - $f.$ That the applicant has a permanent place of abode within the jurisdiction of this Honourable Court. - g. That the applicant undertakes to abide by all conditions as shall be set by this Honourable Court.

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## h. That in the foregoing premises therefore, it is fair and just to release the applicant on bail pending appeal".

The application is supported by the affidavit of the applicant.

- At the hearing of the application, the applicant self-represented 60 himself while the learned Assistant Principal State Attorney, Charles Bwiso, from the office of the Director of Public Prosecutions (DPP) represented the respondent. - The applicant submitted that he is seeking bail pending appeal because since he was convicted in 2009 and appealed to this 65 Court, he has never got any positive response as to the position of his appeal, though he has been writing to the Registrar of this Court. He thus prays to be released on bail while his appeal remains pending for disposal by this Court. - It was also claimed by the applicant that, by reason of his stay in 70 prison, he had developed ulcers and that he was praying to be released on bail so that he can secure medical treatment for the sickness outside the prison. He had a permanent place of abode at Kanyumu, Butema Sub-County, Paliisa District. He also had sound sureties, though the same were absent from Court as he $75$ had not had an opportunity to contact them. The sureties were ready to attend Court once so notified. He prayed to be released on bail pending appeal.

Counsel for the respondent opposed the application on the grounds that the applicant is serving a life imprisonment sentence 80 and there were no sureties present in Court to ensure that the applicant will not abscond once released on bail pending appeal. Counsel prayed Court to dismiss the application.

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This Court has considered the submissions of Counsel for the respondent. Section 134 (4) of the Trial on indictments Act and 85 section 40 (2) of the Criminal Procedure Act empower this Court to resolve this application. Bail pending appeal is granted at the discretion of Court, the discretion being exercised judiciously and each case being determined on its own merits. See: Walubiri

### Godfrey Vs Uganda; Court of Appeal Criminal Application No. 90 44 of 2012.

An applicant for bail pending appeal must prove exceptional circumstances and/or unusual reasons if such applicant is to succeed in the application. The applicant has not produced any proof that his appeal to this Court cannot be disposed of one way 95 or the other by this Court. This Court has within it a mechanism to deal with backlog of cases and as such the applicant's **Criminal** Appeal No. 93 of 2014 is to be disposed of under that arrangement. The alleged delay to dispose of the said appeal is therefore not an exceptional circumstance warranting grant of bail 100 pending appeal to the applicant. As to the applicant suffering from ulcers, the applicant can receive treatment from prison while he continues to serve his sentence.

The length of the term of imprisonment against which the applicant is appealing can be one of the factors which can induce $105$ a convict to abscond. The longer that term; the more likely the applicant will be tempted to abscond and go into hiding so as to avoid serving the sentence. See: **Chimambhai Vs Republic. (No.2)** (1971) EA 343. The length of the sentence therefore militates releasing this applicant for bail pending appeal. 110

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The fact that the applicant has a permanent place of abode and substantial sureties, who happened to be absent in Court, does not amount to exceptional circumstances to have the applicant released on bail pending appeal.

This Court is therefore not convinced with the grounds presented 115 by the applicant to be released on bail pending appeal. The application therefore has no merit. It is dismissed.

The Registrar, Court of Appeal, is hereby directed to fix for hearing, **Criminal Appeal No. 93 of 2014**, in which the applicant is the appellant, at the earliest convenient Criminal Session of this $120$ Court, so that the same is disposed of on its own merits.

It is so ordered.

March 2020. Dated at Kampala this

Remmy Kasule **Ag. Justice of Appeal**

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