[2023] UGHC 46

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO CRIMINAL MISC. APPLICATION NO. 92 OF 2022 (ARISING FROM CRIMINAL APPEAL NO. 13 OF 2022) (ARISING FROM THE CHIEF MAGISTRATE'S COURT OF MUKONO HOLDEN AT MUKONO CRIMINAL CASE NO. 0591 OF 2019)

KAYIZA SIRAJI :::::::::::::::::::::::::::::::::::: **VERSUS EXECUTE: 11.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1.1**

UGANDA ..............

BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

#### **RULING**

- 1. This is an application for release on bail pending appeal brought by Notice of Motion under section 132 (4) of the Trial on Indictments Act, Cap. 23, section 40 of the Criminal Procedure Code Act, Cap. 116 and Rule 2 of the Judicature (Criminal Procedure) (Applications) Rules S. I $13 - 8.$ - 2. The grounds of the application are briefly contained in the Notice Motion and supported in detail by the Applicant's affidavit dated 17^th November, 2022. The grounds were that: - (a) the Applicant was convicted and sentenced to serve 4 years' imprisonment and payment of UGX. 7,000,000/= for the offence of arson and malicious damage;

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- (b) the Applicant's conduct while on bail in the Magistrate's court was compatible with the bail practice at all times until he was sentenced: - (c) the Applicant has lodged an appeal with a high likelihood of success: - (d) the Applicant is of advanced age suffering from severe hypertension, diabetes mellitus and chronic obstructive pulmonary disease that require adequate medical attention; - (e) the Applicant being of advanced age couple with a set of chronic health conditions expose him at high risk every time he stays in prison; - (f) the Applicant will not abscond once released on bail and he has substantial sureties who are prepared to guarantee his return for trial: - (g) it is fair and in the interest of justice that the Applicant is granted bail in so far as in the event of acquittal he will never be compensated for the suffering he will have gone through while in detention. - 3. The Respondent opposed the application by an affidavit in reply deponed by Nanyonga Josephine, a State Attorney from the Office of the Directorate of Public Prosecutions dated 27^th February, 2023 and filed in this court on 28^th February, 2023. The grounds of the contention were that:

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- (a) the Applicant was convicted and sentenced on the offences of arson and malicious damage and there is a high likelihood of interfering with the former complainants; - (b) the Applicant aver that he suffers from hypertension, diabetes and other diseases but the medical analysis report from prison only gives a general health analysis and it's not enough to confirm that these diseases cannot be managed in hospital; - (c) he has not provided any evidence to show that the prison lacks capacity to provide adequate medical treatment: - (d) the Applicant has not produced any L. C letter to prove where he resides and this proves that the Applicant will abscond once released on bail: - (e) the Applicant was convicted of an offence that involved personal violence and is most likely to interfere with the victims once released on bail; and - (f) since there is already an appeal, bail should be denied and the appeal is heard and determined on its merit. - 4. On 28^th February, 2023 when the application came up for hearing, the Applicant was represented by Counsel Mugaya Kaima Jonathan from Ssekidde Associated Advocates. The Respondent was $M/s$ represented by Counsel Nanteza Victoria Anne, a State Attorney from the Office of Directorate of Public Prosecutions. Both counsel filed the

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parties' written submissions and the Applicant's counsel filed submissions in rejoinder.

- 5. Reiterating the averments in the Applicant's supporting affidavit, the Applicant's counsel submitted that section 7 of the Penal Code Act, Cap. 120, is to the effect that a person is not criminally responsible in respect of an offence relating to property if the act done or omitted to be done by the person with respect to the property was done in the exercise of an honest claim of right and without intention to defraud. - 6. That the Applicant herein was convicted and sentenced to serve 4 years' imprisonment and payment of UGX. $7,000,000/$ = for the offence of arson and malicious damage yet he had a defence of honest claim of right. That it was his testimony in court before the trial Magistrate that the subject property was a subject of an on-going civil litigation before the Magistrate's Court of Mukono to determine the legitimate owner between him and the complainant. Counsel cited the case of Owere Mondo & Others v. Uganda, HCMA 0033 of 2013. - 7. That the Applicant's appeal has a high likelihood of success and should it succeed after he has served his sentence, it will have caused him an irreparable injustice. Further, that the Applicant cannot anticipate how long he will have stayed in prison before his appeal is heard and determined. And that the Applicant has a fixed place of abode within the jurisdiction of this court and sound sureties who are ready and willing to stand for him.

- 8. It was further submitted for the Applicant that he is 65 years old, a family man with grandchildren and a resident of Latengo Cell. Nagalama B Ward, Nakifuma. The Applicant's counsel presented 3 sureties during the hearing of the application. These were: - (a) Mr. Tabu Muzammil, 46 years old, the Applicant's neighbor, resident of Latengo Cell, Nagalama B Ward, Nakifuma-Naggalama Town Council, Mukono District with mobile telephone No. 0757 521417/0781 440838; and - (b) Mr. Ssetwalo Musa, 55 years old, the Applicant's nephew, resident of Latengo Cell, Nagalama B Ward, Nakifuma-Naggalama Town Council, Mukono District with mobile telephone No. 0706 264803/0782 952237; and - (c) Mr. Serubiri Badiru, 79 years old, the Applicant's father-in-law, resident of Latengo Cell, Nagalama B Ward, Nakifuma-Naggalama Town Council, Mukono District, - 9. Learned counsel prayed that this honourable court finds the sureties provided substantial especially as they are close kin to him and they have the ability to compel him to comply with bail conditions once the application is granted. He further prayed that the Applicant be released on bail pending the hearing of his appeal. - On the other hand, the Respondent's counsel citing the case of 10. Bamutura Henry v. Uganda, HCMA No. 19 of 2019, contended that the presumption of innocence when hearing an application to grant bail

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is already rebutted by the fact that the lower court has already convicted the Appellant and conviction is followed by punishment. That in order to grant freedom to such a person whose fundamental freedom has been lost by conviction of the lower court, there must exist some unusual and exceptional circumstances. Counsel further referred to the case of Busiku Thomas v. Uganda, SCCA 33/2011.

- $11.$ The Respondent's counsel submitted that in this case, court should not only take into account the rights of the convicted person but also the interests of the victim and the society as a whole. That regarding the issue of advanced age, the Registrar of the court should fast truck and cause list the Applicant's appeal in order for the appeal to be heard expeditiously. Counsel cited the case of **Mellan Marere v. Uganda, Criminal Miscellaneous Application No.4 of 2021.** - 12 Counsel added that the medical report attached from Murchison Bay Hospital doesn't indicate whether or not that medical facility lacks capacity to provide adequate medical treatment while the Applicant is in custody. She prayed that the application is dismissed. Counsel orally contended that the 1^st & 2^nd sureties have not presented to court their land title, sales agreement, electricity or water bills. That the 3^rd surety told court that he is a bit sick and he is of advanced age hence he will not fulfill the duties of a surety based on his age and health status. Further, that the Applicant has not produced any document to show where he resides or a national identity card to prove whether he is a citizen or not.

- 13. In rejoinder, the Applicant's counsel stated that unlike the Magistrate's court which is limited by geographical jurisdiction, this court has unlimited jurisdiction. That the sureties are Ugandans who are currently and permanently residents of Lutengo Village despite not presenting land titles and utility bills. That this does not bar this court to have jurisdiction over them. Counsel prayed that this court overlooks the Respondent's objection as the sureties are Ugandans and currently residents of Lutengo Village which they have proved by bringing L. C. letters. - $14.$ In addition, counsel averred that neither age nor health can bar a surety from performing his duty as a surety more so in his capacity as a father-in-law of the Applicant. That the Applicant has attached his national identity card in the application which proves that the Applicant is a Ugandan.

## Issue

### Whether the Applicant is entitled to be granted bail.

15. It is trite law that a person applying for bail pending appeal lacks one of the most important elements normally available to a person seeking bail before trial which is the presumption of innocence. In the Kenyan case of **Chimambhai v. Republic [1971] E. A. 343** Harris J. said

> "It is manifest that the case of an appellant under sentence of imprisonment seeking bail lacks one of the strongest elements normally available to an accused person seeking bail before trial,

$\overline{7}$ namely, that of the presumption of innocence, but nevertheless the law today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating a right of appeal in criminal cases."

16 An Applicant for bail pending appeal has the onus to satisfy court that his or her application has merits warranting his or her release on bail. In **Raghbir Singh Lamba v. R [1958] E. A. 337** (High Court of Tanganyika) Spry Ag J at page 338 said that:

> "Where a person is awaiting trial, the onus of proving his guilt is on the prosecution and consequently the onus is, otherwise also on the prosecution of showing cause why bail should not be allowed. On the other hand, when a person has been convicted, the onus is on him to show cause why the conviction should be set aside and similarly the onus is on him to show cause why as a convicted person he should be released on bail. If that is so, it follows that the reasons must be exceptional, otherwise bail would be granted in the majority of cases, which would offend against the principle."

17. An appellate court, like this court, has jurisdiction to grant bail pending the determination of the appeal. Section 40 (2) of the Criminal Procedure Code Act, Cap, 116 provides thus:

> "(2) The appellate Court may, if it sees fit, admit an appellant to bail pending the determination of his or her appeal; but when a

Magistrate's Court refuses to release a person on bail, that person may apply for bail to the appellate Court."

However, such discretionary power must be exercised judicially and in accordance with the set principles for application for bail pending appeal.

18. Paragraph 13 (1) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, Legal Notice No. 8 of 2022, clearly provides for consideration of bail by courts in any bail application. It states that:

> "The court shall consider the following in handling a bail application—

(a) the gravity of the offence;

(b) the nature of the offence;

(c) the antecedents of the applicant so far as they are known:

(d) the possibility of a substantial delay of the trial;

(e) the applicant's age, physical and mental condition;

(f) the likelihood of the applicant to attend court;

(g) the stage of the proceedings;

(h) the likelihood of the applicant to commit an offence while on bail:

(i) the likelihood of the applicant interfering with witnesses:

(i) the safety of the applicant, the community and complainants;

(*k*) whether the applicant has a fixed place of abode

within Uganda or whether he or she is ordinarily resident outside Uganda:

(*I*) whether the applicant has sufficient sureties within Uganda to undertake that the applicant shall comply with the conditions of his or her bail:

(*m*) whether the applicant has, on a previous occasion when released on bail, failed to comply with his or her bail terms:

$(n)$ whether there are any other charges pending against the applicant; or

(o) whether the offence for which the applicant is charged involved violence."

- 19. As to proof of the Applicant's fixed place of abode, the L. C.1 letter from the area Chairperson introducing the Applicant as a resident of his area and the Applicant's national identity card were admitted in evidence which clearly indicate his permanent place of residence at Latengo Cell, Nagalama B Ward, Nakifuma-Naggalama Town Council, Mukono District. I find that the Applicant has satisfied this court that he has a fixed place of abode within the jurisdiction of this court. - 20. The Applicant has presented sureties who have been well identified before this court during hearing of the application. I find the 1^st Applicant not substantial being that he is the Applicant's neighbor with no kin connection to him and much younger than the Applicant. However, I find the 2^nd and 3^rd sureties substantial since they are close family members of the Applicant that is to say; nephew and father-in-

law. This court is convinced that these two sureties can effectively preside over the Applicant and ensure that he complies with the bail terms as he did while in the trial court

- $21.$ Paragraph 4 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, Legal Notice 8 of 2022 provides that "advanced age" means sixty years of age and above. In the instant case, the Applicant is certainly of advanced age being about 65 years old. - 22 There is no evidence that there are other charges pending against the Applicant other than the charges appealed against. The prisoner had been released on bail pending trial in the lower court and he complied with the bail terms. The Applicant has further attached a medical report from the prison which shows that he was examined and conclusion made on the diseases he is suffering from. However, the doctor's report does not comply with the statutory provision. Section 15 $(3)$ (a) of the Trial on Indictments Act, Cap 23 and paragraph 14 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 provide that grave illness should be 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. Illness per se is not a ground for release on bail except where it is certified that the condition cannot be adequately managed while the applicant is in custody. The court cannot presume such facts but has to rely on the professional opinion of the medical officer who is obliged to give the correct status of the

Applicant's health as prescribed by Section 15 $(3)$ (a) of the Trial on Indictment Act and paragraph 14 (2) of the Constitution Bail Guidelines.

- $23.$ In my judgment, this court would consider other factors other than illness to release the applicant on bail pending appeal. In this case, the ground of advanced age would be considered by this court and the fact that the appeal may not be cause-listed soon for hearing because of the big case backlog and pending cases at this court. - $24$ Pursuant to the foregoing analysis, this application is allowed and the Applicant is released on bail pending the determination of his appeal on the following terms: - (a) the Applicant shall pay cash bond of UGX. $3,000,000/$ =; - (b) each surety is bonded in the sum of UGX.6,000,000/ $=$ NOT CASH; - (c) the Applicant shall report to the Deputy Registrar of the High Court at Mukono once every month with effect from the 28^th day of April. 2023 till the disposal of the appeal; - (d) each party shall bear their own costs of this application.

I so rule and order accordingly.

This ruling is delivered this 30 March, 2023 by

FLORENCE NAKACHWA

JUDGE.

In the presence of:

- (1) Counsel Mugaya Kaima Jonathan from M/s Ssekidde Associated Advocates, for the Applicant; - (2) Counsel Nanteza Victoria Anne from the Office of Directorate of Public Prosecutions, for the Respondent; - (3) Mr. Kayiza Siraji, the Applicant; - (4) Ms. Pauline Nakavuma, the Court Clerk.