Marere v Uganda [2023] UGSC 13 (5 May 2023)

#### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT I{AMPALA

# CRIMINAL APPLICATION NO. 01 OF 2023

## ARISING OUT OF CRIMINAL APPEAL NO. 026 OF 2019

==== APPELLANT MELLAN MARERE:

#### VERSUS

UGANDA RESPONDENT

## BEFORE HONORABLE JUSTICE MIKE J. CHIBITA JSC.

#### RULING

The Applicant applied for bail pending determination of her appeal. The application was lodged by Notice of Motion under Rules 6 (2) la),42 and 43 of the Judicature (Court of Appeal Rules) Directions.

The grounds of the application as contained in the Notice of Motion and are that:

a) The Applicant is a first offender

b) The appeal that has been filed by the applicant is not frivolous and has a high probability of success.

c) There is a high possibility of substantial delay in the determination


d) The Applicant's state of health requires specialized medical attention and a balanced nutritional diet which she is unable to access while serving her custodial sentence in prison.

e) The Applicant has complied with the bail terms and conditions granted by the High Court.

f) It is just and fair that the Applicant be granted bail pending her appeal.

The application was fi1ed in the court registry on 12th April 2Ol7 and is supported by the a-ffidavit of the Applicant commissioned on 17th March, 2Ol7 . ln the affidavit in support of the application, the Applicant deposed that she is a female adult Ugandan of sound mind aged 77 years, former District Councilor representing Rugreyo Sub County and a recipient of the Go1den Jubilee Medal, Kanungu District.

On 7th 06, 2017, she was convicted of murder contrary to Section 188 and 189 of the Penal. Code Act and sentenced to 29 years and 10 months'imprisonment. She is currently serving the sentence at Luzira Prisons. She filed an appeal against conviction and sentence in the Court of Appeal which reduced sentence to <sup>18</sup> yea-rs.

She was previously released on bail before her trial in the High Court and fulfilled all the conditions imposed on her until her conviction. She is of advanced age and suffers from asthmatic attacks, HIV WHO stage II, non-pitting oedema of the legs and her legs have been amputated. The significant medical findings are that the vascular system in which she has enlarged heart, systolic murrnurs, increased jugular vein pressure and galloping rhlthm.

That these require specialized medical attention and a balanced nutrition diet which she is unable to access while serving her custodial sentence in prison.

She deposed that she has a constitutional right to apply for bail and it may take long before her appeal is heard and determined considering the heavy workload of the court. Apart from the charge for which she was convicted, she has no previous criminal record or pending charges against her in any other court of law. In the main she repeats the grounds in the Notice of Motion that she has a fixed place of abode at Burora Village, Katungu Parish, Rugzeyo Sub County, Kanungu District within the jurisdiction of this court and is willing to abide by all the conditions that may be imposed upon her by this honourable court and will not abscond. Furthermore, she has substantial sureties who are resident within the jurisdiction of this honourable court who are willing to and will stand for her to be produced at the hearing of the application with the leave of court.

The affidavit in reply is that of Nabaasa Caroline PADPP working with the office of the DPP. She denied the contents of the Applicant's affidavit and deposed that this honorable court has already heard and dismissed a similar application by the applicant which was based on the sarne averments in Misc. Application No. O4 of 2021 . She deposed that paragraphs 7,8 and 9 of the applicant's affidavit were superfluous since the main appeal has already been argued and is pending judgment. That there is no legal provision conferring a right to the applicant to apply for bail pending judgment and thus the application is bad in law. She deponed that paragraph 18 of the applicant's affidavit is


misconceived since the process of determining her appea-l is at the tail end of the appea-l process. She prayed that the application be dismissed.

At the hearing of the application, Counsel Nabaasa Caroline PADPP from the office of the DPP represented the Respondent while Counsel Awelo Sarah represented the Applicant. The Applicant was produced in Court by the Prisons authorities at the hearing. The Applicant's Counsel reiterated the grounds in the Notice of Motion and Affidavit in support.

The Applicant's case in summaqr is hinged on the case of Aryind Patel V Uganda, Supreme Court Criminal Application No. Ll2OOg where this court laid out considerations to an application for bail pending appeal. In that case court emphasized that it is not necessary that it is not necessary that all the conditions stated should be present in every case, but that a combination of two or more criteria may be sufficient and that each case must be decided on its facts and circumstances.

Counsel submitted that the applicant is a mother and <sup>a</sup> grandmother who has been looking after orphans, a law-abiding citizen who contributes positively to her family and community, a former Local Council (LC) 5 Woman councilor for Rugreyo Sub County, Kanungu District, a recipient of the Golden Jubilee Meda-l and a District Counselor for people living with HIV/AIDS.

Counsel for the applicant further submitted that the applicant is a Iirst-time offender, had previously been released on bail by the High Court, where she fulfiIled all the conditions and attended court religiously until conviction.

Counsel for the applicant also submitted that the applicant suffers from chronic allergic bronchitis with asthmatic components, HIV/AIDS, Peripheral Neuropathy and old age which according to Dr Kakoraki, make the applicant unable to withstand prison conditions as envisaged in annexure c1 of the Notice of Motion.

Counsel added that according to the medical report annexure c2 of the Notice of Motion, dated 3.d May 2022 where the applicalt's legs were amputated and her current photo attached as annexure c3.

Counsel submitted that there has been substantial delay on the determination of the matter

Counsel introduced two people as sureties, furnished copies of their national identity cards, office identity Cards, LC introductory letters and phone contacts;

- 1. Aturinda Rosemaqr, a Nursing Officer at Kanungu District Local Government, a daughter of the Applicant. - 2. Akankwasa Judith, a senior Clinical Officer at Kanungu District Local Government, a daughter of the applicant

Counsel submitted that the applicant had a permanent place of abode as evidenced by the letter from Ariko Frank, the LC Chairperson Buroro, showing that the Applicant was arrested in Buroro cell Sothern Ward Nyakabungu Town Council, Kanungu District.

In brief, counsel for the applicants'case was based on the fact the applicant has been sick, and both her feet have been amputated, the living conditions are hard for her to be in prison, she needs

constant care a1ld also the fact that she brought into court substantial sureties

She prayed for the application to be allowed.

# A brief summary of the Case for the Respondent

Counsel for the respondent adopted her averments in the a-ffidavit in response to the applicant's affidavit and stated, inter alia, that the appeal referred to has been handled by this honorable court and thus she considered it determined.

Counsel submitted that in a session that was handled rn September, 202 1, submissions on appeal by the applicant who is the appellant in the main case were admitted in court, together with the reply for the respondent and the matter awaits delivery of judgment.

Counsel submitted that what was before court was an application pending the delivery of judgement, which, according to her submission, confers no such right or offers no procedure for bail pending judgement delivery.

Counsel submitted that counsel had not addressed her mind to that, and that the appeal has actually been determined and on the tail end of being concluded.

Counsel reiterated that the applicant has been convicted twice and sentenced twice thus it will be new precedent by this honorable court to grant bail when it is pending delivery of judgement.

Counsel submitted that this is the second application for bail to that a similar this honorable court seeing lication based on

similar facts and sarne grounds was dismissed vide Misc. Application No. O4/ 2O2L. Counsel informed court that the same was dismissed and that the grounds have not changed since that time. Finally, she observed that the main ground she advanced of sickness was advanced then.

Counsel stated that a similar application in the Court of Appeal vide Misc. Application. No. 52 of 2Ol7 was advanced and still the Court of Appeal found no merit.

Counsel averred that this evidenced that there is no merit in the main appeal and thus instead prayed for court to expedite delivery of judgment of the appeal which has already been handled.

Counsel further prayed that the court expedites its judgment instead of creating a precedent where people can assume that court is failing to deliver judgment on the case that is already heard.

The applicant in rejoinder stated that the applicant's condition has since worsened. She further averred that she still had her legs until recently when they were amputated and the condition worsened and thus, she prayed to the Honorable court to give the applicant a chance to have her health condition monitored out of the prisons.

I have carefully considered the application for bail pending appeal together with the evidence and taken into account the submissions of Counsel.

The conditions for grant of bail pending appeal have been set out in a wealth of jurisprudence. I shall consider the following;

In Anrind Patel v Uganda Supreme Court Criminal Appeal No. 1 of 2OO3 Oder JSC included the fact of whether the appeal is no frivolous and has a reasonable prospect of success. Furthermore, the question, inter alia, includes whether the Applicant complied with bail terms that had previously been granted by the lower court. Other factors to consider include the character of the Applicant; (2) whether he/she is a first offender or not; (3) whether the offence of which the Applicant was convicted involved personal violence; (4) Whether there is possibility of substaltial delay in the determination of the appeal. A combination of two or more criteria may be sufficient and each case must be considered on the basis of its own facts and circumstances.

Regarding the presumption of innocence, the Supreme Court in Busiku Thomas v Uganda Criminal Appeal No. 33 of 2OLl (Tumwesirye & Dr. Kisaakye JJSC; Tsekooko, Okello and Kitumba Ag. JJSC| held:

"It should also be further noted that the presumption of innocence guaranteed to a person accused of a crime, ends when the acansed person is found bg an impartial Court guiltg of the offence he or she was charged uith. From this point ontaard, the interests of justice demand t the Courts should not onlA take into account the ights of the conuicted person, but also the interests of the uictim and the societg as a uhole."

Bail pending appeal is provided for under Rule 6 (2) (a) of the Judicature (Court of Appeal) Rules provides as follows:

"6. Suspension of sentence and stag of execution

- 1. Subject to sub rule (1) of this rule, the institution of an appeal shallnot operate to suspend ang sentence or to stag execution, but the Court mag- - a. in ang ciminal proceedings, where Notice of Appeal has been giuen in accordance uith rule 59 or 60, of these Rules, order that the Appellant be released on bail or that the execution of anA u.tarrant of dis/ress be suspended pending the determination of the appeal; and..."

Secondly, section 40 l2l of the Criminal Procedure Code Act Cap, 116 gives the appellate Court discretionary power whether to admit an appellant to bail pending appeal:

"4O. Admission of appellant to bail and anstodg pending appeal.

(2) The appellate Court mag, if it sees fit, admit an appellant to bail pending the determinqtion of his or her appea. butwhen a magistrate's Court refuses to release a person on bail, that person mag applg for bail to the appellate Court."

Such discretionar5r power is exercised judicially and in accordance with the principles of set out in the above authorities.

<sup>9</sup> uA-

Notwithstanding the above authorities, bail pending trial for capital offences has special statutory provisions under section 15 of the Trial on Indictment Act Cap 23. This received judicial consideration in Kairu Arajab and Kange Patrick v Uganda Court of Appeal Miscellaneous Application No. 34 of 2OL4 where Hon. Mr. Justice Kenneth Kakuru held that a convict can be granted bail pending appeal subject to the exceptional circumstances under Section 15 of the Trial on Indictment Act Cap 23. He said:

"Before conuiction an Applicant charged uith a serious offence is required to proue exceptional circumstances as sef out in Section 15 of the Tiq,l on Indictments Act. It cqnnot be the law that upon conuiction the same person has no dutg to proue tho s e exceptional circumstance s. "

Section 15 of the Trial on Indictment Act Cap 23 provides as follows:

"15. Refusal to grant bail.

- 1. Notwithstanding section 14, the court mag refuse to grant bail to a person accused of an offence specified in subsection (2) if he or she does not proue to the satisfaction ofthe court- - a. that exceptional circumstances eist justifging his or her release on bail; and - b. that he or she will not abscond when released on bail."

Offences under section 15 (2) include under sub section (a) an offence triable by the High Court such as the offence of murder of

which the Applicant has been convicted. Secondly, exceptional circumstances a-re defined by section 15 (3) and additional factors are considered by section 15 (3) which are reproduced for ease of reference:

"(3) In this section, "exceptional circumstances" meqns any of the following-

- a. graue illness certified bg a medical olftcer of the pison or other instihttion or place where the accused is detained as being incapable of adequate medical treatment uhile the acqtsed is in anstodg; - b. a certifi.cate of no objection signed bg the Director of Public Proseantions; or - c. the infancy or aduanced age of the acalsed.

(4) In consideing uhether or not the accused is likelg to abscond, the court may take into account the following factors-

- a. u)hether the accttsed has a fixed obode within the jurisdiction of the court or is ordinqrilg resident outside Uganda; - b. whether the accused has sound securities within the jurisdiction to undertake that the acqtsed shall complg with the conditions of his or her bail; - c. whether the accused has on a preuious occasion when released on bail failed to complg with the conditions of his or her bail; and - d. whether there are other charges pending against the acansed."

<sup>11</sup> \^5-

The Judicature (Supreme Court Rules) Directions however, govern appeals in the Supreme Court, Rule 6(2) a of the Judicature (Supreme Court Rules) Directions as rightly cited by the applicant provides for grant of bail pending appeal.

"(2)" ... the institution of an appeal shall not operate to suspend ang sentence or to stag execution but court mag

(a) In ang ciminal proceedings uhere a notice of appeal has been giuen in accordance with rules 56 and 57 of these niles, order that the appellant be released on bail pending the d.etermination af the appeal.

From the wording of the statute its pertinent for this court to state the meaning of the word determination as used in the parent statute.

The Blacks' law Dictionary 4th edition at Page 536 defines Determination as the decision of a court. It implies an ending or finality, the ending of a controversy or suit. It further explains the coming to an end in any way whatever as per Hanchett Bond Co. u Fibre 2O8 Mo. App 769.

It's the understanding of this court that the import of this rule is that bail pending appeal may be granted during the pendency of the determination of the appeal or in simple terms before the court grants its judgement.

It was court's finding after deliberation and evidence as per the record of court as submitted by the respondent that the main appeal had already been determined ald it just awaits judgement.


The respondent further submitted that this would render the instant application one for bail pending judgement and not bail pending appeal. This would set a new precedent that the court should not encourage. This is because apart from the applicant fronting sickness there is no other justification in law or reason whatsoever necessitating creation of this new precedent.

It is based on this rationale that this court finds that this application fails by law because the right to bail pending appeal is already extinguished by the very provisions provided by the applicant; Rule 6(2)(a), 42 and 43 of the Judicature (Supreme Court Rules) Directions SI 13- 1 1.

To further buttress this conclusion court has the considered its wealth ofjurisprudence as well as those cited by the applicant but pertinently the decision of Henry Bamutura V Uganda Miscellaneous Application No.19 of 2OL9 where HON JUSTICE LILLIAN TIBATEMWA justifications for bail pending 2"d Appeal was given as the substantial delay in determination of the appeal.

Court held that delay in disposing of the appeal should be assessed in light of whether there is real risk that the sentence or <sup>a</sup> considerable portion of it will have been served before the appeal is heard. Pursuant to this application this threat has already been extinguished since the appeal in the instant application was already heard and is just pending judgment.

Furthermore, as rega-rds to substantial delay in disposing the Appeal as a ground to get bail, the judge in the above case stated

that this in itself may be an unusual circumstance, however it ought not be speculative but factual.

This was also stated by Trevelyan J in Somo V Republic ll972l E. A 476-481 that delay alone can only be an unusual or exceptional circumstance if it is unusua-l itself. In this present application the court finds that the assertion in her Notice of Motion that there has been substantial delay in the determination of the matter is mere speculation and no evidence or facts have been adduced. This is more so since the court has already heard the matter and merely awaits judgment, thus rendering the application premature.

The learned Justices of appeal at page 14 paragraph 3, line 16 judgement of Honorable Justice Christopher Madrama stated that in the premises, the applicant's application for bail is premature due to lack of evidence that within one year an appeal whose memorandum was filed by 2"d May,2O18 could not have been heard within a year.

This is the exact assertion this court makes that there is no evidence that an appeal that has already been determined awaiting judgment will not be rendered soon.

Where the appeal has already been determined as is the case in issue, then it's the finding of this court that since this court is in the process of delivering its judgement then this application fails before even delving into the merits of the application.

The delay to render judgment was caused by the demise of one of the justices on the panel. On 2"d May, 2023, a reconstituted panel introduced to the parties and Counsel. It is evidence that judgment in this case will be rendered sooner than later.

It would be a matter of immense cruelty if the Applicant were granted bail today and tomorrow judgment in her appeal is rendered confirming her sentence whereupon her bail would be cancelled and she would be returned to prison.

It is in the interest ofjustice to wait for the judgment in the appeal to be rendered. All indications are that this will be done very soon.

Consequently, this application is dismissed.

Dated at Kampala this day of H.ts ,o\*

Mike J. Chibita Justice of the Supreme Court

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