Mugisha v Uganda (Criminal Miscellaneous Application 18 of 2022) [2022] UGHC 151 (12 October 2022)

#### 5 **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT KABALE**

### **CRIMINAL MISCELLANEOUS APPLICATION NO. 0018 OF 2022**

#### **(Arising from Criminal No. 0008 of 2022)**

**MUGISHA JACKSON**============================**APPLICANT**

#### 10 **VERSUS**

**UGANDA**==================================**RESPONDENT**

### **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

### 15 **RULING**

The instant Application is brought by Notice of Motion under Article 23(6) of the Constitution, Section 205 of the Magistrates Court Act and Section 40(2) of the Criminal Procedure Code Act, seeking orders that the Applicant Mugisha Jackson be granted bail pending the hearing and determination of Criminal Appeal No. 20 0008 of 2022 pending before this Court.

The brief background to this Application is that the Applicant was charged and convicted of the offence of Threatening Violence Contrary to Section 81(a) of the Penal Code Act and was sentenced to 18 months imprisonment.

The Application is premised on the following grounds:

- 25 i) That there is a possibility of substantial delay with the Appeal. - ii) That the Appeal has a reasonable ground of success. - iii) That the Applicant is a first time offender. - iv) That the offence the Applicant was convicted of did not involve personal violence. - 30 v) That the Applicant has complied with the bail conditions granted by the trial Court before the conviction of the Applicant. - vi) That it is in the interest justice that this Application is granted.

# 5 **Representation.**

At the hearing of this Application Mr. Tumukunde Daniel represented the Applicant while Ms. Nabagala Grace represented the Respondent.

## **Submissions.**

Counsel for the Applicant relied on the grounds as set out in the Notice of Motion 10 and the supporting Affidavit.

Counsel further relied on the guidelines in **Arvind Patel Versus Uganda SCC APP No. 0001 of 2003** and submitted that the Applicant was a first offender, has 7 children and that the offence with which the Applicant was convicted did not involve personal violence but rather arose from a father-son relationship and that

15 the two were neighbours.

It is the contention of Counsel for the Applicant that the pending Appeal has reasonable chances of success as evidenced in the memorandum of Appeal on the Court record and that the Applicant was already in his 2 nd month of the 18 months sentence which period is likely to increase leading to irreparable loss to the 20 Applicant should the Appeal succeed.

The Applicant presented 3 sureties namely:-

Mwizerwa Edison Mukiza the Local Council Chairperson Rubagaba Village, Sam Gisanabagabo the Vice Chairperson Nyarurama Village and Mugisha Beatrice Mutezinka the spouse of the Applicant.

25 Ms. Nabagala Grace for the Respondent opposed the Application and relied on the guidelines for bail pending Appeal under Section 19 of the **Constitutional (Bail Guidelines for Courts of Judicature) (Practice) Directions 2022**.

It is the submission of Ms. Nabagala Grace that the Applicant is a convict and as such does not benefit from the presumption of Innocence and that there is no

30 likely hood of success of the pending Appeal.

Ms Nabagala Grace contends that the security and safety of the Victim in this matter should be a key consideration before this Court because as admitted by

- 5 the Applicant he is the son of the complainant in the pending Appeal and according to Ms. Nabagala Grace the Lower Court record shows that the Applicant had threatened to cut off the testicles of the complainant and the breasts of his mother. Ms. Nabagala Grace further submits that the case is compounded by the fact that the Applicant and his parents reside in the same compound; thereby - 10 posing a threat to their wellbeing.

It is further the submission of Ms. Nabagala Grace that while the Applicant did not commit an offence involving personal injury he was just short of actualizing the same.

# **Resolutions.**

15 It is imperative that this Court points out that bail whether at first instance or pending Appeal is not an automatic right to bail. The right cited under Article 23(6) of the Constitution is limited to the right to apply for bail.

Court is seized with the discretion to grant or not to grant bail but this discretion must be exercised judiciously and each case must be determined on its own 20 merits.

# **See also Nalubiri Godfrey Versus Uganda CR. APP. No. 44 of 2012 CA**

The Court in **Igamu Soanita versus Uganda CA. CR. APP. No. 107 of 2013** clarified on the principles governing bail pending Appeal to the effect that while before conviction an Accused is protected by the presumption of innocence, after 25 conviction that presumption is greatly shifted and he/she is a convict. The essence of bail pending Appeal is therefore not to enable the innocent Accused attend his trial but rather to enable the convicted accused persue his Appeal. This therefore places a greater burden on the Accused seeking bail pending Appeal to prove that he deserves the grant.

30 This Court in determining the instant Application will rely on the guidelines under Section 19 of the **Constitution (Bail Guidelines for Courts of Judicature) (Practice Director, 2022) which provide**:

- 5 "*The Court shall in handling an Application for bail pending Appeal take into consideration the following factors:* - *a) the character of the Applicant;* - *b) whether the Applicant is a first offender or not;* - *c) Whether the offence for which the Applicant was convicted involved violence.* - 10 *d) the Appeal is not frivolous and has a reasonable possibility of success;* - *e) the loss incurred by the complainant or the victim;* - *f) the possibility of substantial delay in the determination of the Appeal; or* - *g) whether the Applicant has complied with the bail conditions granted by the trial Court before the conviction of the Applicant.*

## 15 **See also guidelines under Arvind Patel Versus Uganda (Supra).**

On the first consideration relating to the character of the Applicant there is no evidence to this effect. The Applicant makes no such averments nor are there any documents on the Court record to enable this Court to assess the same. This Court cannot make assumptions that because the Applicant has presented sureties who

20 claim to know him well that he is of good conduct or character. This consideration has not been met by the Applicant.

The Applicant on the 2nd consideration avers in paragraph 4 of his affidavit that he is a first offender. The Respondent has not controverted these assertions.

The Applicant on the 3rd consideration whether he was convicted of an offence 25 that involves personal violence, the record shows that he was convicted of the offence of threatening violence Contrary to Section 81(a) of the Penal Code Act.

It is the submission of Ms. Nabagala Grace that the offence with which the Applicant is convicted is violent in itself though he did not actualize the same.

This Court appreciates the submissions of the Respondent that recent legislations 30 such as the Domestic Relations Act of 2010 in defining what constitutes domestic violence encompass amongst others the actions of the Perpetrator to include mental, emotional, verbal and psychological abuse. The element of personal injury or violence for that matter exceeds the physical connotation of violence.

- 5 The instant Applicant according to the record of proceedings that are annexed to his Application threatened to cut off his father's private parts and mother's breasts. I will not delve further into the record but it should suffice to note that the conviction of threatening violence Contrary to Section 81(a) of the Penal Code Act is really a borderline offence to personal violence when accorded a liberal - 10 interpretation.

As to whether the Appeal is not frivolous and has a reasonable possibility of success, Court can assess the possibility of success of the Appeal by perusing the relevant record of proceedings, the Judgment of the Court from which the Appeal has emanated and Memorandum of the Appeal in question. I have had the

- 15 occasion to peruse the record of the trial Court that is annexed to the Application but unfortunately the Judgment was not a part of the Court record. As a result, am unable at this stage to reach a conclusion as to whether the Appeal has a reasonable ground of success. - On the possibility of a substantial delay in determination of the Appeal, this Court notes that the Appeal was filed on 26th 20 of August, 2022 while the instant Application was filed on 7th of September, 2022.

The record of proceedings on the Court record that also contains the sentencing proceedings bare a certified stamp dated 18th of August, 2022.

It would appear from the above that the Applicant has the record necessary for 25 this Appeal to be determined. I therefore find no reasonable excuse advanced for a possibility of a substantial delay in determining the same.

The Court in **Avind Patel Versus Uganda (Supra)** discussed the issue of granting bail where there is a real likelihood of an offence being committed while the Accused is on release.

30 Ms. Nabagala Grace for the Respondent has in her submission highlighted the record of the Lower Court contending that the Applicant is a threat to the victim who is his father and more so because they reside in the same compound. The 5 same compound in which the Applicant threatened to castrate his father and cut the breasts of his mother.

It is my considered opinion that the concerns of the Respondent should not merely be brushed aside in the absence of evidence as to the present character of the Applicant.

10 It is therefore my finding that the requirements for bail pending Appeal have not been satisfied by the Applicant.

The Application is accordingly dismissed.

Before me,

………………………………………………

**Samuel Emokor JUDGE 12/10/2022**

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