Kimeze v Uganda (Miscellaneous Application 12 of 2019) [2019] UGSC 99 (29 November 2019)

## IN THE REPUBLIC OF UGANDA

# AT THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: M. S. ARACH-AMOKO, JSC (SINGLE JUSTICE)

## MISC. APPLICATION NO. 12 OF 2019

#### **BETWEEN**

KIMEZE JEREMIAH:::::::::::::::::::::::::::::::::::: 10

### **AND**

## $\textbf{UGANDA}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\textbf{10}:\text$

(An application for bail pending appeal arising from Criminal Appeal No.56 of 2019 which arose from the decision of the Court of Appeal at Kampala ( 15 Kiryabwire, Musota and Tuhaise, JJA) dated 5<sup>th</sup> November, 2019 in Criminal Appeal No. 231 of 2011 which in turn arose from Criminal case No. 19 of 2011 *of the High Court at Anti-Corruption Division.)*

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## **RULING OF ARACH-AMOKO, JSC**

This application was brought by Notice of Motion under Article 2, $126(2)(e)$ of the Constitution; Rule $41(1)$ &(2) of the Rules of this Court; Section 132 (4) of the Trial on indictment Act, Cap 23 and Section 40(2) of the Criminal Procedure Code Act. The applicant Mr. Kimeze Jeremiah seeks to be released on bail pending the hearing and determination of his appeal.

The grounds upon which the motion is premised are that:

a) He will serve an illegal sentence.

$\mathbf{1}$

b) He will effectively and sufficiently be able to facilitate his appeal pending the hearing and determination of his Criminal Appeal No. 56 of 2019.

The application is supported by the affidavit of the applicant sworn on 8<sup>th</sup> November, 2019 expounding and giving reasons for seeking for bail pending appeal.

The respondent filed an affidavit in opposition sworn by Senior State Attorney Harriet Ongom on its behalf.

## **Background:**

$\mathsf{S}$

The applicant who was a branch operations manager at Barclays Bank, Masindi was charged together with others some of whom 15 were acquitted by the trial court with the offence of causing financial loss C/s 20(1) of the Anti Corruption Act, 2009, embezzlement C/s 19(b) of the Anti Corruption Act, 2009 and conspiracy to defraud C/s 309 of the Penal Code Act, Cap 120.

It was alleged that the applicant with others conspired to defraud 20 Barclays Bank, Masindi. They made fictitious deposits on certain accounts and as a result over six hundred million shillings disappeared from the Bank. The applicant was convicted as charged and sentenced to eight years imprisonment. He was also ordered to compensate the bank with shs. $335,000,000/=$ and was barred 25 from working in the banking institution for 10 years upon completion of his prison terms. His assets were also to be restricted for the purposes of compensation.

He appealed to the Court of Appeal which upheld both conviction and sentence but ordered that the applicant is barred from working 30 in a financial Institution for a period of 10 years from the time of his conviction which was 25<sup>th</sup> October, 2011. He has lodged an appeal in this Court under Criminal Appeal No. 56 of 2019 hence this application.

$\mathsf{Z}$

#### **Representation:** $\mathsf{S}$

At the hearing he was represented by Mr. Bakole Simon and Senior State Attorney represented the respondent.

## **Submissions:**

Counsel for the applicant gave a brief background to the application and submitted that the applicant is a first offender. He has a fixed 10 place of abode. He is a sole bread winner. He has substantial sureties whom he introduced to Court, namely Mrs. Robinah Kateregga, his mother, his brothers Mr. Ssekabira Patrick and Mr. Kassaija Geoffrey Kateregga. The sureties know their duties since they were the same ones in the lower courts and will ensure that 15 the applicant will attend court without fail when called upon. The applicant might serve the full sentence if he is not released on bail since the hearing of the appeal is likely to delay due to the $1<sup>st</sup>$ in and $1^{st}$ out policy of the court. The appeal is not frivolous, it is based on a point of law and has a high likelihood of success. The 20 applicant has a good reputable character and will honour bail terms despite being a convict. Counsel prayed that the application should be granted as prayed and the cash bail in the High Court should be used for bail.

Ms. Asingwire opposed the application. She contended that all the 25 grounds advanced by the applicant in support of the application do not meet the conditions for the grant of the order sought by the applicant. She argued very strongly that the substantiality of the sureties is a matter to be determined by court. The sureties are not substantial especially the mother who has no control over the 30 applicant. The facts have changed since the sentence was confirmed by the Court of Appeal except for the disbarment from working in a financial institution after serving the prison term. The likelihood of success of the appeal is also speculative since this Court cannot conclusively determine that at this stage. The presumption of 35

5 ! innocence of the applicant has also diminished since his conviction. She further submitted further case involves colossal sums of money. The applicant has enjoyed bail since 2011 until November 2019, when the matter was determined by the Court of Appeal. The victim is still yearning for justice to date. The applicant has a right to apply for bail under the law but it is up to Court to grant the 10 same. She argued that in determining the application, the Court considers the circumstances of the case especially where the applicant has been convicted twice for the same offences as well as the colossal sums involved. In conclusion, she prayed that the application be dismissed for lack of merit and the appeal should 15 instead be fixed for hearing since the applicant has already filed a Memorandum of appeal in this Court.

## Consideration of the application:

I have carefully perused the pleadings and considered the respective submissions by Counsel. I have read some relevant authorities on the matter.

Bail pending appeal in this Court is governed by Rule 6(2) (a) of the Rules of this Court which reads in the relevant part as follows:

" (2) Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may-

(a) in any criminal proceedings where a notice of appeal has been given in accordance with rules 56 and 57 of these rules, order that the appellant be released on bail.....pending the determination of the appeal."

It is worth emphasizing at this point that the right to bail as provided under Article 23(6) (a) of the Constitution is limited to the right to apply for bail only. Bail is granted at the discretion of Court depending on the circumstances of each case. Further, it must be

5 emphasised that even after conviction, the Constitutional presumption of innocence is not extinguished until all appellate levels have been exhausted.

This court is however alive to the fact that at this stage the applicant has an incentive to jump bail and therefore the conditions are likely to be applied more stringently. The applicant should therefore demonstrate to court that there are special circumstances and sufficient grounds to warrant the grant of bail. See; David Chandi Jamwa v Uganda, Msc. App No.09 of 2018

The main criteria for granting bail pending appeal is that the court must be satisfied that the applicant shall not abscond but will 15 comply with the bail conditions and be available to attend the appeal. See; Kyeyune Mitala Julius v Uganda No.4 of 2017, Kato Kajubi Godfrey v Uganda. No.02 of 2016.

A mere assertion by the applicant that he will not abscond if he or she is released is not sufficient ground enough for releasing a 20 convicted person on bail pending appeal even with support of sureties.

This court has therefore in a number of cases following the case of Arvind Patel v Uganda, No.01 of 2003 laid down the guidelines upon which Courts can grant or refuse bail pending appeal. That 25 case further emphasised that it is not necessary that all these conditions should be present in every case. A combination of two or more may be sufficient.

These conditions are summarized as follows:

1. *The character of the applicant.* 30

- *2. Whether the applicant is a first offender or not.* - 3. Whether the offence with which the applicant was convicted involved personal violence.

- 4. The appeal is not friuolous and has a reasonable possibilitg of success. - 5. The possibilitg of substantial delag in the determination of the appeal. - 6. Whether the applicant has complied with granted before the applicant's conuiction pendencg of the appeal if any. bail conditions and duing the

In the instant application, briefly in summary the main grounds for grant of the order sought as expounded in the applicant's aflidavit are that:

- a) He was granted bail in both the lower courts and did not abscond but complied with the bail conditions. - b) He is of a reputable character and will abide with by the conditions set by this court upon being granted bail. - c) He partially succeeded in the Court of Appeal. His appeal is not frivolous but based on points of law and has a high likelihood of success. - d) There is a possibility of substantial delay in hearing the appeai due to first in first out and therefore he will serve an illegal sentence. - e) He has a fixed place of abode with substantial sureties who were the same in the lower courts. - f) He's married with two children, a bread winner working as a Community Liaison offi cer. - g) He's a first offender and the offence he was convicted of does not involve personal violence.

h) There is need to be granted bail to effectively facilitate his appeal.

$\mathsf{S}$

i) It is his constitutional right to apply and be granted bail by this Court.

Guided by the conditions in **Arvind Patel v Uganda** (supra) I find that: 10

The applicant is a family man, a first offender with no previous criminal record and that the offence for which he was convicted did not involve personal violence. The contention by Counsel for the respondent that financial violence is worse than physical violence is not backed by any authority. It is accordingly rejected.

Secondly, the applicant has attached both a notice of appeal and a memorandum of appeal with seven grounds. He has also annexed to this application the judgments in the lower courts. I have perused the said documents and I find without preempting his appeal and delving into the merits of the grounds that the appeal does not appear to me to be frivolous since he raises a number of arguable points which will require final determination by this Court.

Regarding the possibility of substantial delay, I note that it has taken less than a month from the date of filing the applicant's notice of appeal in this Court to hear this application. The 25 applicant's assertion for substantial delay in hearing his appeal is therefore speculative. Nevertheless, with the first in first out policy. there is no guarantee of an expeditious disposal of the appeal.

Regarding compliance with the bail conditions, the applicant has proved that he complied with the bail terms in the Court of Appeal 30 for 8 years and did not abscond. He has further proved that he has a fixed place of abode at Lusanja LC1 zone as per the letter of the LC1 Chairperson of the area dated 5<sup>th</sup> November, 2019. I also find his sureties substantial some of whom were aware about their role

5, both in the lower Courts. Such factors favour the applicant since the most important thing is to ensure that the applicant does not abscond but he attends his appeal until disposal.

In the circumstances, I find that, there are factors which weigh in favour of the applicant as mentioned above. In the result, I grant the applicant bail pending appeal on the following terms:

- 1. The applicant shall deposit in this Court as cash bail shs. $10,000,000/$ = less the 5,000,000/ = deposited in the Court of Appeal. - 2. The applicant shall have the three sureties presented to Court who shall have the responsibility to ensure that he attends Court whenever he is required to do so. - 3. Each surety shall bind himself or herself in the sum of shs. $100,000,000/$ = each not cash. - 4. The applicant shall deposit his passport with the Registrar of this Court and shall not apply for any new passport until the final disposal of the appeal or until such further orders of this Court. - 5. The applicant shall report to the Registrar of this Court on the last working day of each month beginning from 31<sup>st</sup> December, 2019 until the disposal of his appeal. - 6. A breach of any of these conditions by the applicant shall render the bail pending appeal herein granted to him liable to automatic cancellation. - Dated at Kampala this. 29<sup>th</sup> Day of November 2019 30

## HON. M. S. ARACH-AMOKO JUSTICE OF THE SUPREME COURT

$10$

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