[2020] UGCA 61


THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

# **Miscellaneous Criminal Application No. 78** of 2019

(Arising from Court of Appeal Criminal Appeal No. 094 of 2015) $15$ (*Arising from Luweero High Court Circuit Criminal Session Case No. 201 of 2012*)

**Jemba Steven :::::::::::::::::::::::::::::::::::**

#### Versus

<table>

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

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

# **Ruling of the Court**

This application by notice of motion is seeking release of the $25$ Applicant on bail pending the hearing and final disposal of his **Criminal Appeal No. 094 of 2015** now in this Court.

The application was filed under **Articles 23(6) (a), 23(3)(d) of the** Constitution, Section 40(2) of the Criminal Procedure Code

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Act, Cap 116, Rule 43 (1) and (2) of the Judicature (Court of 30 Appeal Rules) (Directions) S.1; 13-10).

The grounds of the application stated in the Notice of Motion are that:-

"1. The applicant's appeal has already suffered $a$ substantive delay to be heard. 35

> 2. The applicant has spent a long period in prison to wit; 8 years.

> 3. It is the Applicant's constitutional and legal right apply for bail pending the hearing and $to$ determination of his main appeal.

> 4. The applicant concedes that he has higher chances of being acquitted on appeal".

The application is supported by the affidavit of the applicant which states:-

- "2. That, on 24^th May 2014, I was arrested from my working 45 place at Luzira, Kisenyi Village, Nakawa Division Kampala district by plain clothed men and taken to unknown place where $I$ was shot and tortured. Later they referred me to *Mulago Hospital for medical assistance.* - 3. That, after getting healed, they referred me to Central 50 Police Station (CPS) in Kampala which transferred me to Nakasongola Police Station. And I was arraigned in Court on 24^th June 2011 and charged of Aggravated Robbery of one Sade Kasenyi chaired by chief magistrate Court of Nakasongola then remanded to Nakasongola government 55 prison.

4. That. I was indicted to the High Court of Luweero in 2014.

5. That, I was tried on a criminal session holden at Luweero high Court which commenced on 14^th December and completed on 24^th March 2015 at Luweero high Court.

6. That, on 24^th March, 2015, I was tried and subsequently sentenced to 32 years imprisonment by Hon. Justice Mugamba K. Paul at sitting in Luweero.

7. That, on 26^th March 2015, I filed an appeal via/through prison administration and as result, my appeal was 65 allocated No. 094 of 2015 by the Court of Appeal.

That, my appeal has suffered a substantive delay $\mathbf{8}$ precipitating justice denied contravening Article 126(2) (b) of the Constitution of the Republic of Uganda.

70 9. That, I have undertaken reformatory courses during service of my imprisonment, Bible way correspondence school (Basic Bible teachings), and responsible Christian course completed 12 studies with examination memorized 12 verses.

10. That, it is my constitutional right to apply for bail pending Appeal (see Article 23(6) (a) of the Constitution of the 75 Republic of Uganda and section 205(1) of the Magistrates Court Act.

11. That, I have three $(3)$ substantial sureties.

12. That, I have a permanent place of abode at Nasolo Village *Nansana Municipality, Wakiso District.* 80

13. That, I don't have antecedent and this is my first time in my entire life to be arrested over a criminal offence and never failed to abide by any bail condition when released on bail.

14. That, the balance of convenience tilts in my favor as my welfare and that of thirteen children, three siblings and that of my 92 year old grandfather are adversely affected by imprisonment and the respondent stands to suffer nothing if I am released on bail.

15. That, I am willing to abide by all bail conditions that may be imposed by this Court. 90

16. That, I have higher chances of acquittal in my appeal and able to attend Court during the hearing of the Appeal.

17. That, this Court has wide constitutional and other juris dictionary powers to grant me bail (see. 47 of the C. P. C).

18. That, this is just and equitable and in the interest of 95 *justice if am released on bail".(sic)*

The respondent filed an affidavit in reply opposing the application. At the hearing of the application, the applicant self –represented himself while the respondent was represented by the learned Assistant Director of Public Prosecutions (DPP) Nabisinde Vicky. The applicant indicated to Court that he was ready to argue the application on his own without being represented by a lawyer.

Before Court, the applicant prayed to be released on bail pending the disposal of his appeal on the grounds that; his appeal has delayed since 2015 because the trial Court file disappeared, and

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so the appeal cannot be fixed for hearing. He has children as well as a 92 year old grandfather who are missing his support. He thus prayed this Court to release him on bail so that he can take care of them.

The applicant further submitted that none of the sureties was 110 present in Court but prayed to be given more time so that he can communicate to them to be present in Court when needed

Learned counsel for the respondent opposed the application on the grounds that the applicant did not provide details of the sureties

- though he had been given time to do so. She contended that the 115 applicant had not supplied to Court evidence of fixed place of abode. As regards the delay of disposing of his appeal, there was no evidence availed to Court that the file of the trial Court had gone missing. - Respondent's Counsel referred to the decision in **Court of Appeal** $120$ Criminal Miscellanous Application No. 69 of 2018; Kitaka Robert Nsubuga V Uganda and Court of Appeal Miscellaneous Application No. 241 of 2014; Sande Pande Ndimwibo Vs **Uganda** where it was held that the applicant must prove exceptional and/or unusual reasons in order to succeed to be 125 released on bail pending appeal.

Counsel contended that the issue of hardship to family of the applicant is not an exceptional circumstance in an application for bail pending appeal.

Counsel prayed this Court to fix the said Criminal Appeal of the 130 applicant for hearing at the next convenient Criminal Session.

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This Court has carefully considered the submissions of both the applicant and counsel for the respondent, and the affidavit in support of the application and the one in opposition to the application.

The Court proceeded to hear the application, in the absence from Court of the applicant's sureties because this Court can examine the said sureties later, once it finds that the application has merit.

The grounds upon which this court may grant an application of this nature have been stated in the case of **Igamu** Joanita vs 140 Uganda; Court of Appeal Criminal Application No. 0107 of **2013.**

While the right to apply for bail is a constitutional right that stems from the right for one to be presumed innocent until proved guilty

under Articles 23(6) and 28 (3) of the Constitution, this right 145 ceases to be applicable upon conviction of the applicant of the charge at trial. But even before6 conviction, an applicant charged with murder is required to prove exceptional circumstances as set out in Section 15 of the Trial on Indictments Act before such a one can be released on bail pending trial. It cannot be the law 150 therefore that upon conviction the same person has no duty to prove those exceptional circumstances if such a one applies for bail pending appeal.

The applicant has not shown to the satisfaction of court that exceptional circumstances/ or unusual reasons exist as to justify 155 the court to release him on bail pending appeal. Discomfort to the applicant's children and grandfather caused by his absence because he is serving a sentence in prison after being convicted of

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Aggravated Robbery, cannot be exceptional circumstances and/or unusual reasons to justify granting bail to the applicant.

This Court is not satisfied that this is a case in which this court is to exercise its discretion to grant bail pending appeal to the applicant. The Court accordingly declines to grant the application. The same stands dismissed

It is so ordered. 165

> Dated at Kampala this $2020.$

**Remmy Kasule**

Ag. Justice of Appeal

$11 - 96$ . leling delivered via Zoom in<br>mesence of the Applicant and<br>Is. Nanafeero Fatina counsel Jon deut.