Nakiwuge v Uganda (Criminal Reference 12 of 2020) [2021] UGSC 42 (9 September 2021)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KAMPALA

*Coram: Mugamba, Muhanguzi, & Chibita, JJSC*

## CRIMINAL REFERENCE NO. 12 OF 2020

NAKIWUGE RACHEAL MULEKE::::::::::::::::::::::::::::::::::: $\overline{5}$

### **VERSUS**

### UGANDA:::::::::::::::::::::::::::::::::::

(A reference from the ruling of Hon. Dr. Esther Kisaakye, JSC, in Criminal Application No. 15 of 2019 dated 14/10/2020)

## **RULING OF THE COURT**

This is an application by way of a reference from the decision of a single Justice of this court (Hon. Dr. Esther Kisaakye, JSC.) delivered on the 14th October, 2020 dismissing Criminal Application No. 15 of 2019 for bail pending appeal. The application was brought under 15 Section 8(2) of the Judicature Act and Rule 52 of the rules of this Court.

The applicant by a letter dated 21/10/2020, addressed to the Registrar of this court, seeks orders from a full bench of the Supreme Court Justices varying, discharging or reversing the single Justice's 20 decision in denving her bail pending her intended appeal to this court.

### Background.

The applicant was convicted by the High Court Anti-Corruption Division of three offences of Embezzlement, False Accounting and 25 Each count had an alternative count of uttering false Forgery. documents. She was sentenced to a term of 3½ years' imprisonment on the count of Embezzlement and 15 months' imprisonment on the counts of False Accounting and Forgery. The sentences were to run concurrently. The applicant was also disqualified from holding public office for a period of 10 years from 15th July 2015.

The applicant was dissatisfied with the decision of the High Court and appealed to the Court of Appeal. The Court of Appeal upheld the convictions and sentences of the High Court. Aggrieved by the $\mathsf{S}$ decision of the Court of Appeal, the applicant filed a Notice of Appeal in this court. The applicant also filed Criminal Application No. 15 of 2019 in this court, for bail pending her intended appeal. The application was dismissed by Hon. Dr. Esther Kisaakye, JSC.

#### Grounds of the Reference 10

The reference is from the orders of the single Justice (Dr. Esther Kisaakye, JSC.), wherein she stated that: -

- There is no Constitutional provision permitting the seeking of $(i)$ and the granting of bail to a person who has already been convicted of a criminal offence. - **Arvind Patel** was wrongly decided. $(ii)$ - Rule 6(2) (b) of the Supreme Court Rules is void for being (iii) inconsistent with the Constitution.

## Representation

At the hearing, Mr. Justine Semuyaba represented the applicant 20 while Ms. Harriet Angom, Chief State Attorney, represented the respondent. The applicant attended Court by Video link.

### Submissions for the applicant

Counsel for the applicant relied on Article 132(2) of the Constitution and submitted that the Constitution expressly vests the Supreme 25 Court with jurisdiction to hear criminal appeals. Counsel argued that the fact that the right to apply for bail pending appeal is not specifically mentioned in the Constitution does not necessarily mean that such right is excluded. Learned counsel faulted the learned Justice for following her decision in Magombe Joshua Vs. Uganda, SC 30 Misc. App. No. 11 of 2019 because in that case, the learned Justice

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only considered Article 23(6) (a) of the Constitution to the exclusion of other laws that expressly provided for other rights such as the right to apply for bail pending appeal like in this case.

Counsel contended that the right to apply for bail is a fundamental human right under the Constitution. According to counsel, the $\mathsf{S}$ presumption of innocence is not the major basis for grant of bail and that pleading guilty or being convicted does not extinguish the convict's innocence. He added that this court has in earlier decisions determined application for bail pending appeal such as in the cases

of Bireete Sarah Vs. Uganda, SC Criminal Appl. No. 04 of 2016. 10 Baingana John Paul Vs. Uganda, SC Criminal Application No. 05 of 2016, Kyeyune Mitala Julius Vs. Uganda, SC Misc. Appl. No. 4 of 2017, Simba Jean Louis Vs. Uganda, SC Criminal Appl. No 1 of 2018, Kimeze Jerimiah Vs. Uganda, SC Misc. Appl. No 12 of 2019, Ocepa

Geoffrey Vs. Uganda, Misc. Appl. No. 07 of 2020 (Arising from 15 Criminal Appeal No. 078 of 2019).

It was also submitted for the applicant that the learned single Justice erred when she found that the case of Arvind Patel Vs. Uganda, SCCA No. 1 of 2003, was wrongly decided because she had no valid

basis to depart from the decision in the Arvind case since this court is 20 bound by the principle of *stare decisis*. Counsel pointed out that the issue of constitutionality of bail pending appeal was not an issue for determination by court and therefore counsel for the applicant was not given an opportunity to address it. He added that this decision would create an element of uncertainty, instability in and 25 unpredictability of the law. In support of this argument counsel cited Constitutional Appeal No. 1 of 2006, Attorney General Vs. Uganda Law Society.

Counsel urged court to exercise judicial activism under Article 126(1) of the Constitution. He argued that Judicial activism occurs when a 30 judge ignores the principles of precedence and *stare decisis* like in this case.

In relation to grounds for bail pending the appeal of the applicant, counsel relied on Arvind Patel Vs. Uganda, (supra) and submitted that the applicant was a first offender and had complied with bail terms of the lower court. Counsel further submitted that the possibility of delay of the applicant's appeal is an exceptional circumstance. He also argued that the offence for which the applicant was convicted did not involve personal violence and thus qualified for the grant of bail pending the appeal. Counsel prayed that this court allows the application and grants the applicant bail pending her appeal.

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# **Submissions for the Respondent**

Counsel for the respondent opposed this reference and supported the decision of the learned single Justice that the rules made under the Judicature Act cannot override the provisions of the Constitution because the Rules are inferior to the 1995 Constitution.

Counsel submitted that although the learned Justice did not specifically mention the rules provided under the Criminal Procedure Code Act (CPCA) and Trial on Indictment Act (TIA) while reaching her decision, that does not mean that she would have reached a different decision because the two Acts of Parliament are inferior to the 1995 Constitution and cannot override Article 2 of the Constitution as stated by the learned single Justice.

Counsel argued that the applicant is a two-time convict whose convictions and sentences were upheld by the Court of Appeal and

thus she could no longer be presumed innocent in line with Article 25 28(3) of the Constitution. Counsel submitted that the right to liberty can be derogated. He relied on Article 23(1) (a) and argued that the Constitution expressly allows the deprivation of the right to liberty of a person and that in the instant case, the applicant's deprivation emanated from an order and sentence of the court. 30

In line with the applicant's grounds for bail pending appeal, Counsel submitted that the applicant has not pleaded any unusual and exceptional circumstances. Counsel argued that the possibility of

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delay of her appeal does not fall within the meaning/category of unusual and exceptional circumstances. In support of this argument, counsel cited Bamutura Henry Vs. Uganda, SC Misc. App. No. 9 of 2019, wherein Hon. Justice Prof. Lillian Tibatemwa-Ekirikubinza observed 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.

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- Further, counsel contended that, it is not in the interest of Justice 10 that the applicant is granted bail pending appeal because the interests of the victims have to be taken into consideration too. According to counsel, Article 28(1) that provides the right to a fair hearing also extends to the victims of crimes committed by the - accused person, and that they too deserve to see justice being done. 15 Counsel cited Magombe Joshua Vs. Uganda, SC Criminal Appl No. 11 of 2019, where Hon. Justice Dr. Esther Kisaakye held "when a person has been convicted of a serious offence or an offence of the kind the Applicant is convicted of, ... The interest of justice demands that the - scales of justice are tilted in favour of protecting the wider public or 20 community from such a person ... Our criminal law gives the responsibility to prosecute such persons before courts of law not only on behalf of the direct victim but also on behalf of the whole *community..."* - Counsel prayed that this court harmonises the two positions of this 25 court in the **Arvind** case and the case of **Magombe vs. Uganda**. (supra). She also prayed that this court upholds the single Justice's decision of denying the applicant bail pending appeal because the applicant was convicted by both the High Court and the Court of - Appeal. She contended that the applicant had not established an 30 exceptional circumstance for the grant of her application.

# Submissions of the applicant in rejoinder.

In rejoinder, counsel for the applicant submitted that the learned single Justice erred in law when she held that the Supreme Court or an appellate court has no jurisdiction to hear and determine applications for bail pending appeal and that the jurisdiction of the Supreme Court in criminal matters is only restricted to hearing appeals. Counsel stated that the contention that Rule 6(2) of the Supreme Court Rules is inconsistent with Articles 23(6), 23(1), 132(2), 21, 126(1) and 2(2) of the Constitution is and a misdirection.

Counsel further contended that the decision in Magombe vs. 10 Uganda (supra), was per in curium and that it violates principles of Constitutional interpretation as it was reached without consideration of Articles 150 and 79 of the Constitution as well as other provisions of the law such as sections 40, 41(1), (5) of the Judicature Act.

- Counsel faulted the learned single Justice for ignoring the principles 15 of constitutional interpretation and in particular that the Constitution must be read as a whole. Counsel cited Paul Semwogerere & Ors Vs. AG, Constitutional Appeal No. 1 of 2002 and Bukenya Church Ambrose Vs. AG, Constitutional Petition No. - 26 of 2001. 20

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Counsel argued that Articles 150 and 79(1) and (2) of the Constitution led to the enactment of the Judicature Act and consequently the Supreme Court Rules and thus the learned single Justice erred when she considered Article 132 in isolation of Articles

150 and 79 of the Constitution. 25

> Counsel submitted that the learned Justice in the case of Magombe failed to consider the substantiality of sureties just like she did in this case. Counsel asked court to find the sureties presented substantial. Counsel therefore asked court to allow the grounds of this reference

and grant the applicant bail pending her appeal on reasonable terms. 30

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## **Consideration of the Reference by the Court**

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We have carefully considered the grounds of the reference, the submissions of counsel as well as the authorities cited and the law.

This reference arose from the decision of a single Justice of this court in the course of determining an application for bail pending appeal.

It is settled law that the grant of such applications is within the discretionary powers of the Judge and principles for interference with the exercise of discretion by a judge are settled as well. Whenever a decision is based on the exercise of discretion by a judge, such decision will not be reversed merely because the appeal judges would have exercised the discretion differently if they had been presiding in the court below. On the other hand, the appellate court may reverse such discretion if it finds that the trial Judge has failed to exercise any discretion at all or has exercised it in a way that

no reasonable Judge would have exercised, or erred in principle or in 15 law; or took into account irrelevant factors; or has omitted factors which are material to the decision. See: Mbogo Vs Shah (1968) 1 EA 93.

Section 8(2) of the Judicature Act which governs references provides that: 20

> $(2)$ Any person dissatisfied with the decision of a single justice in the exercise of a power under subsection (1) is entitled to have the matter determined by a bench of three justices of the Supreme Court which may confirm, vary or reverse the decision".

A reference is thus in essence an appeal from the decision of a single 25 Justice to a panel of three Justices. As such the above principles are applicable to the instant case.

From the grounds set out above and the submissions of both counsel, the main complaint in this reference is the finding of the learned single Justice that the applicant was not entitled to bail 30 pending her appeal because there is no Constitutional provision that provides for such right to convicts of crime.

The record shows that after setting out the background of the application and the submissions by both counsel, the law and the principles, the learned Justice followed and maintained her earlier decision in Magombe Joshua Vs. Uganda, SCCA No. 1 of 2003. She stated thus:

> "Counsel for the applicant relied on the decision of Oder, JSC in Arvind Patel (supra) which he contended laid down the conditions that generally apply to an application for bail pending appeal.

I stand by my conclusion that:

- $(i)$ There is no constitutional provision permitting the seeking of and the granting of bail to a person who has already been convicted of criminal case. - $(ii)$ Arvind Patel was wrongly decided - (iii) Rule 6(2) (b) of the Supreme Court Rules is void for being inconsistent with the constitution.

I have considered the submissions and authorities relied on by both counsel while arguing this application. For the same reasons I gave in my Ruling in Magombe (supra), I have found no merit in the submissions of the applicant. I decline to grant the applicant bail pending the determination of her appeal. The applicant should continue serving her sentence".

While determining the case of Magombe Vs Uganda, (supra), the learned single Justice held as follows:

"Analysis of the Constitutional provisions discussed above has left me 25 in no doubt that Arvind Patel (supra), was not correctly decided and that the whole concept of Courts granting bail pending appeal is unknown to the 1995 Constitution human rights regime. No Article of the Constitution talks about or supports the proposition that the presumption of innocence subsists after conviction of a person with a 30 criminal offence. On the contrary Article 28(3) of the Constitution is explicit that the presumption of innocence is extinguished upon conviction.

> Secondly, nowhere does the Constitution provide for the right of a convicted person to apply for bail. As I noted earlier, Article 23(6) (a)

> > 8

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which provides for the right to apply for bail only refers to a person arrested in respect of a criminal offence and **NOT** to a person already convicted of a criminal offence.

I have found no constitutional or legal basis to support the Ruling in Arvind Patel (supra) and other Rulings that have since followed it.

The only provision in the Constitution that caters for deprivation of the person liberty of a convicted person is Article 23(1), which provides as follows:

"No person shall be deprived of personal liberty except in any of the following cases-

in execution of the sentence or order of a court, whether $(a)$ established for Uganda or another country or of an international court or tribunal in respect of a criminal offence of which that person has been convicted, or of an order of a court punishing the person for contempt of court;"

As the underlined text clearly shows, the Constitution permits the nondeprivation of one's liberty "where a person is in custody in execution of the sentence or order of a Court ... in respect of a criminal offence of which that person has been convicted."

I have reached the conclusion on the non-existence of a right to apply 20 or to be granted bail after conviction when I am fully aware of the provisions of Rule 6(2) (a) of the Rules of this Court, which I have already reproduced above. This Rule, which the applicant relied on, expressly gives this Court powers to grant bail pending the determination of the appeal. However, I note that these Rules which 25 were made under the Judicature Act, Cap 13, cannot override the clear provisions of the Constitution I have cited above.

> Furthermore, I have also noted that the powers of this Court to hear criminal appeals are laid down under Article 132(2) of the Constitution, which provides as follows:

"(2) An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law."

This Article leaves no doubt in my mind that the mandate of the Supreme Court in criminal matters is restricted to hearing appeals. It is not necessary for me to lay out what hearing and appeal means in detail. It suffices for me to note that this entails the Court examining

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the grounds of appeal that an appellant has laid out in his or her Memorandum of Appeal and the legal arguments made in support of his or her grounds of appeal should bring out the errors of law he or she contends were made by the Court of Appeal in confirming his or her conviction and/or sentence.

Since court derives its powers and mandate to hear criminal appeals from Article 132(2) the Constitution of Uganda, it therefore follows that this Court only gets ceased(sic) with jurisdiction to hear an appellant challenging his or her conviction either when it is preparing for hearing or when it is hearing and determining his or her appeal. Prior to that, this Court only has jurisdiction to deal with matters directly relating to preparations for the hearing of the criminal appeal or incidental thereto, but no powers to consider the release on bail of a convicted person before the final disposal of his or her appeal. Nothing more, nothing less.

It also follows that this Court cannot and should not assume jurisdiction under the Judicature (Supreme Court) Rules to exercise powers that are not vested in it under the Constitution of Uganda, to enforce a purported right to apply for bail pending appeal of a convicted person to apply and to be granted bail pending the disposal of his or her appeal.

It is therefore my view that when the Court hears an intended appellant, seeking to regain his liberty pending the hearing and disposal of his or her appeal as is the case in the present application, the Court is assuming jurisdiction it does not have under the *Constitution of Uganda."*

In the above quoted findings in the Magombe case, the learned single Justice analysed Articles 23(6)(a), and 28(3) and came to the conclusion that there is no Constitutional provision that provides for the right to apply for bail pending appeal.

We agree with the learned Justice that there is no express provision in the 1995 Constitution that provides for the right for bail pending appeal. Similarly, it is apparent that no provision expressly prohibits the right to bail pending appeal. However, we note that the Constitution empowers the Parliament of Uganda to enact laws on any matter for the peace, order, development and good governance

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of Uganda. We also note that the Constitution empowers Parliament to make laws providing for the structures, procedures and functions of the Judiciary. Articles 79(1) and 150(1) of the Constitution expressly state as follows: -

"79 Functions of Parliament.

(1) Subject to the provisions of this Constitution, Parliament shall have power to make laws on any matter for the peace, order, development and good governance of Uganda."

"150 Power to make laws relating to the judiciary.

(1) Subject to the provisions of this Constitution, Parliament may make laws providing for the structures, procedures and functions of the judiciary."

A clear analysis of the two Articles of the Constitution indicate that much as the Constitution provides for most of the fundamental rights of the people under Chapter 4, it did not conclusively provide 15 for all the rights. The framers of the Constitution bore in mind that need may arise to provide for other rights hence the provisions under Articles 79 and 150 cited above empowering Parliament to make provisions for such rights through Acts of Parliament. It would therefore be a misdirection in law to say that since certain rights are 20 expressly not provided for in the Constitution, they are as good as not in existence. It is equally a misdirection to hold that all Acts of Parliament and subsidiary legislation made thereunder that provide for other rights other than those expressly provided within the Constitution are inconsistent with it. 25

Section 40 of the Judicature Act Cap.13 provides for the Rules Committee which includes the Chief Justice. The following Section of the same Act stipulates the functions of the Rules Committee which among others includes making rules for regulating the practice and procedure of the Supreme Court, Court of Appeal and High Court and for all other courts in Uganda subordinate to the High Court. The Rules Committee chaired by the Chief Justice therefore has the mandate to make rules by way of Statutory Instruments regulating

procedure and practice in all courts and thus the genesis of the Supreme Court Rules that govern the practice and procedure in this court. Rule 2(1) of the Supreme Court Rules provides: -

"2. Application.

(1) The practice and procedure of the court in connection with appeals and intended appeals from the Court of Appeal and the practice and procedure of the Court of Appeal in connection with appeals to the court shall be as set out in these Rules."

Rule 6(2)(a) of the Supreme Court Rules provides: -

"6. Suspension of sentence, stay of execution, etc. 10

> (2) Subject to subrule (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 notice of appeal has been given in accordance with rules 56 and 57 of these Rules, order that the appellant be released on bail or that the execution of any warrant of distress be suspended pending the determination of the appeal;"

We therefore find that much as the Constitution does not expressly provide for the right to apply for bail pending appeal, the Supreme Court Rules do provide for that right. Further, since the rules were 20 enacted to regulate and govern the procedure and practice in this court, Rule 6(2)(a) in particular applies to this case.

As already stated above, 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 25 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 30 for it and should therefore be relied on whenever such applications are made to this court.

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Further, we do not find Rule 6(2) of the rules of this court inconsistent with the Constitution. The rule simply makes provision for the right to apply for bail pending appeal whose grant is discretionary and differs from case to case because every case presents its own facts and circumstances. This explains why some applications before this court have been granted while others have been unsuccessful.

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In the case of Arvind Patel, (supra) Oder, JSC (as he then was), considered several cases to come up with the general considerations for bail pending appeal applications. As discussed above, the 10 Constitution does not provide for the right to apply for bail pending appeal and there was no way the learned Justice would have referred to it as there was no clear provision in that regard. The practice has been that whereas there is no written law on the matter

- before court, case law provides guidance. With due respect to the 15 learned single Justice, we hold that it was an error on her part to conclude that the Arvind Patel case was wrongly decided saying that it did not consider clear provisions of the Constitution on bail and those permitting restrictions on personal liberty. The learned Justice - in the Arvind Patel case could not have considered the said 20 provisions of the Constitution where they were not applicable to the case before him. 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 25 all, the Arvind Patel case was rightly decided and we uphold it as the proper position of the law.

## Consideration of the application for bail pending appeal.

Bail pending appeal applications in this court are governed by Rule 6(2)(a) of the Rules of this Court. It stipulates as follows: -30

## "6. Suspension of sentence, stay of execution, etc.

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

This rule empowers this court to grant bail pending appeal. The grant of bail however is discretionary depending on the circumstances of each case. It should also be noted that the applicant is no longer $10$ shielded by Article 28(3) of the Constitution and therefore the consideration for release hinges on whether there are exceptional and unusual circumstances. See: David Chandi Jamwa Vs. Uganda, SCMA No. 09 of 2018, Henry Bamutura Vs. Uganda (supra), Kimeze Jeremiah Vs. Uganda, (supra) and Kyeyune Mitala Julius Vs. 15 Uganda, SCCA No. 9 of 2016.

The above cited cases further stress that the main criteria for granting bail pending appeal is that the court must be satisfied that the applicant shall not abscond but will comply with the bail conditions and will be available to attend hearing of the appeal.

In this case, the applicant's counsel relied on the case of **Arvind Patel** (supra) and contended as follows: -

- a) That the applicant filed a notice of appeal in this court - b) That the applicant honoured bail conditions previously granted by the lower courts and that her conduct while on bail was compatible with bail practice. - c) That the offences which the applicant was convicted of do not carry a death sentence and did not involve personal violence - d) That the applicant is a first time offender and has no criminal antecedents. - e) That the applicant has a fixed place of abode at Komamboga **Central Division Kawempe Kampala.**

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f) That the applicant's appeal is likely to delay due to the busy schedule and timing of criminal sessions in this court.

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- g) That the applicant has substantial sureties who are willing and ready to undertake and comply with bail conditions. - h) That it is in the interest of justice that the applicant is granted bail pending her appeal.

We find that the applicant is a first offender with no previous criminal record and that the offence she was convicted of did not involve personal violence. The contention by the respondent that the applicant was convicted by both the High court and the Court of 10 Appeal and not a first offender is not sustainable. The Court of Appeal confirmed the conviction and sentence of the applicant and therefore not a second conviction. The respondent also contended that the victims of the applicant's crimes suffered emotional and psychological violence as well as personal violence in terms of 15 hunger, coldness and thirst. This is not backed by any authority. However, in our view, we do not think that the terms used by counsel for the respondent to define personal violence suffice to mean "personal violence" in its literal meaning.

Secondly, the applicant averred that on the 6th day of November 20 2019 she lodged a notice of appeal in this court in paragraph 14 of her affidavit in support of the motion. We did not find the annexure on record. The record shows a memorandum of appeal as annexure J with 23 grounds of appeal. He also attached the two judgments from the lower courts. The memorandum states both issues of law and 25 fact majorly issues to do with re-evaluation of evidence.

Second appeals to this court are governed by section 5 of the Judicature Act which is to the effect that a second appeal lies to this court on a matter of law or mixed law and fact. Since the applicant's memorandum of appeal includes both matters of law and fact, we find that her appeal is not frivolous. However, we are not in a position to determine the possibility of success of the intended appeal without the record of appeal.

Thirdly, the applicant contended that her appeal may be possibly delayed due to the busy schedule of this court. In determining this factor, we have considered the possibility of the applicant serving the biggest part of her sentence before her appeal is determined by this court. The punishment meted out to the applicant is 3 and a half years and 15 months to run concurrently. We don't think that it will take this court three years to fix the applicant's appeal for hearing. It was therefore speculative for the applicant to argue that her appeal may delay. Nevertheless, with the first-in first-out policy, there is no guarantee of an expeditious disposal of the appeal.

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In respect of compliance with the previous bail conditions, the applicant has proved that she complied with bail terms in the Court of Appeal and High Court and did not abscond. She further stated that she has a fixed place of abode at Komamboga Central Zone Kawempe Kampala. However, this ground wasn't proved. There is no LC1 letter of the said place to affirm so on record. Further, documents introducing the sureties are also not on court record. Missing documents on a court record affect the applicant.

Further, the applicant pleaded that the possibility of delay in disposing her appeal is an unusual and exceptional circumstance. 20 Section 15(3) of the Trial on Indictment Act provides the exceptional circumstances. They include; (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 treatment while

the accused is in custody; (b) a certificate of no objection signed by 25 the Director of Public Prosecutions; or (c) the infancy or advanced age of the accused. The applicant has neither pleaded nor proved any of the above listed circumstances. See: Simo V Republic, 1972 E. A 476-481. We find her argument that the possibility of delay of appeal her is $an$ unusual exceptional 30 and circumstance unsustainable.

We therefore find that most of the factors for grant of bail pending appeal in the instant application, do not favour the applicant.

We are unable to grant this application and it is hereby dismissed. Dated at Kampala this....................................

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Paul Mugamba JUSTICE OF THE SUPREME COURT

**Ezekiel Muhanguzi** JUSTICE OF THE SUPREME COURT

Llike Delute

**Mike Chibita** JUSTICE OF THE SUPREME COURT

Delivered by the Register 9/9/21