[2024] UGHC 789

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO CRIMINAL MISC. APPLICATION NO. 22 OF 2024 (ARISING FROM CRIMINAL APPEAL NO. 25 OF 2024) (ARISING FROM LUGAZI CRIMINAL CASE NO. 52 OF 2020)

- 1. KIRIBA AUGUSTINE - 2. WASSWA ELIJAH - **APPLICANTS** 3. NALUMISA JANE

#### **VERSUS**

**RESPONDENT** UGANDA :::::::::::::::

# BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

### **RULING**

- 1. The Applicants applied for release on bail pending appeal. The Applicants filed a notice of appeal to this court on 29^th November, 2023. This application was brought by Notice of Motion under Article 23 (6) of the Constitution of the Republic of Uganda, 1995, section 132 (4) of the Trial on Indictments Act, Cap. 25, section 40 of the Criminal Procedure Code Act, Cap. 122 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 affidavits of the Applicants

dated 11^th April, 2024 and the supplementary affidavit of Mr. Kyeswa Kamu dated 24^th June, 2024. The grounds are that:

- (a) the Applicants were tried and convicted of malicious damage to property contrary to section 335 (1) of the Penal Code Act and trespassing on burial grounds contrary to section 120 of the Penal Code Act, Cap 120 in Lugazi Criminal Case No. 52 of 2020 on the 28^th of November, 2023; - (b) the trial Court ordered for a custodial sentence of two years on count one on malicious damage to property and one year on for count two on trespass on burial grounds and the sentences were to run consecutively and the Applicants are serving three years' imprisonment at Lugazi Government Prison; - (c) the Applicants appealed against the conviction and sentence; - (d) the Applicants have permanent places of abode within the jurisdiction of this court; - (e) the Applicants were each sentenced to 3 years in prison and since they have appealed the conviction and sentence, they pray to be granted bail so that they are able to conduct the appeal when they are free; - (f) the Applicants have substantial sureties who also have fixed places of abode;

- (g) the Applicants have a right to apply for bail pending appeal to avoid miscarriage of justice; - (h) the $3^rd$ Applicant is the wife of Mr. Kyeswa Kamu the deponent of the supplementary affidavit; - (i) Mr. Kyeswa Kamu had an introduction ceremony on the 9^th October, 1994 at the 3^rd Applicant's parents' home at Namatovu Village, Namatovu Parish, Najja Sub-county- then Mukono District but he did not obtain a customary marriage certificate to that effect but he has long stayed with the 3^rd Applicant as husband and wife from 1994-to date: - (j) Mr. Kyeswa and the 3^rd Applicant have 8 (eight) children in their marriage and the 3^rd Applicant is the only wife Mr. Kyeswa has and has sworn an affidavit confirming that the 3^rd Applicant is his wife with whom he has spent 29 years in marriage; - (k) the $3^rd$ Applicant applied for bail pending the hearing of her appeal and Mr. Kyeswa is one of the sureties; and - (I) it is just, fair and equitable that this application is granted by this honourable court to avoid a miscarriage of justice. - 3. The application was opposed by the Respondent through an affidavit in reply and the Respondent's written submissions both filed on 8^th May, 2024. However, during the hearing of the application, the Respondent conceded to the application. Consequently, I find it

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unnecessary to consider the Respondent's pleadings opposing the application.

- 4. When the application came up for hearing on 23^rd August, 2024, the Applicant was represented by Counsel Elvis Twongirwe from M/s Bagyenda & Co. Advocates. The Respondent was represented by Counsel Nanyonga Josephine, a Senior State Attorney from the Office of Director of Public Prosecutions. Since the Respondent's counsel conceded to the application during its hearing, I will proceed to consider only the Applicants' written submissions. - 5. The Applicant's counsel reiterated the averments in the Applicants' supporting affidavits and added that by the time this application was filed, the record of proceeding from the lower court and the memorandum of appeal setting the grounds of appeal were on record. That the possibility of success in the appeal can be gathered from the said documents. Counsel referred to the case of Umutoni Annet v. Uganda, Court of Appeal Criminal Application No. 0341 of 2014, at page 5. - 6. The Applicant's counsel further argued that the record shows that the Applicants complied with the bail terms in the trial court which obedience they shall exhibit even in this court when granted bail. Counsel submitted that whereas the Appellant prisoners are already convicts, this court remains with the discretion to grant bail to the Applicants. Besides, that judging from the schedule of this court, by the time this court fixes and determines the appeal, the Applicants shall

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have served the sentence and the appeal will be merely an academic exercise or nugatory. Counsel cited the case of Igamu Joanita v. Uganda, Court of Appeal Criminal Application No. 107 of 2013. Te Applicants' counsel submitted that admitting the Applicants on bail avoids the practical mischief of the Appellants serving a sentence only to succeed in the appeal. Counsel prayed that the Applicants be granted bail pending hearing and determination of the appeal and they shall abide with the bail terms set by this court.

- 7. The Applicant's counsel presented 2 sureties for each Applicant during the hearing of the application and these are: - (a) Mr. Mukungu Zubairi, 80 years old, the 1^st Applicant's biological father, resident of Namatovu Village, Namatovu Parish, Najja Sub-County, Buikwe District, with mobile telephone No. 0709 839759; - (b) Mr. Ssekandi Alex, 56 years old, the 1^st Applicant's biological elder brother, resident of Kitula/Kiyagi Village, Mukono District, with mobile telephone No. 0756 543139; - (c) Mr. Ntulume John, 66 years old, the 2^nd Applicant's paternal uncle, resident of Namatovu Village, Namatovu Parish, Najja Sub-County, Buikwe District, with mobile telephone No. 0754 571409; - (d) Mrs. Mbabazi Florence, 28 years old, the 2^nd Applicant's wife, resident of Namatovu Village, Namatovu Parish, Najja Sub-County, Buikwe District, with mobile telephone No. 0775 990777;

- (e) Ms. Nalubega Rose, 30 years old, the 3^rd Applicant's paternal aunt, resident of Namatovu Village, Namatovu Parish, Najja Sub-County, Buikwe District, with mobile telephone No. 0753 330978; and - (f) Mr. Kyeswa Kamu, 52 years old, the 3^rd Applicant's husband, resident of Namatovu Village, Namatovu Parish, Najja Sub-County, Buikwe District, with mobile telephone No. 0783 632187

#### Issue

Whether the Applicants are entitled to be granted bail pending appeal.

## **Court's consideration**

8. 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, 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."

9. 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 at page 338 (High Court of Tanganyika) Spry Ag J 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."

In the case of Busiku Thomas v. Uganda, SCCA 33/2011, the $10.$ Supreme Court held as follows:

> "It should also be further noted that the presumption of innocence guaranteed to a person accused of a crime, ends when the accused person is found by an impartial Court guilty of the offence he or she was charged with. From this point onward, the interests of justice demand that the Courts 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."

Therefore, it is trite law that while in a bail application pending $11.$ trial, the burden is on the prosecution to prove why the accused should

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not be released on bail, on appeal, the onus shifts to the Applicant who is a convict to show why he or she should be released on bail pending appeal after his or her conviction and sentence.

Section 40 (2) of the Criminal Procedure Code Act, Cap, 122 $12$ vests this court with appellate discretionary power to release a bail Applicant on bail pending appeal. It states as follows:

> "40. Admission of appellant to bail and custody pending appeal.

> (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."

The court's discretion must be exercised according to the set principles governing bail pending appeal.

Paragraph 19 of the Constitution (Bail Guidelines for Courts of $13.$ Judicature) (Practice) Directions, Legal Notice No. 8 of 2022, provides for consideration of bail pending appeal. It provides that:

> "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:

(d) the appeal is not frivolous and has a reasonable possibility of success;

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(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."

- Having carefully perused the court record, I find that the $14.$ Applicants have satisfactorily convinced this court that they all have fixed places of abode within the jurisdiction of this court as all of them are residents of Namatovu Village, Namatovu Parish, Najja Sub-County, Buikwe District. - The Applicants have further presented sureties who have been 15. well identified before this court during hearing of the application. All the sureties are close family members of the Applicants and I find them substantial. This court is convinced that these sureties can prevail over the Applicants and ensure that they comply with the bail terms. - Suffice to mention that during the hearing of the application on 16. 23^rd August, 2024, the Respondent's counsel informed court that the Applicants and the complainant in the lower court are in the process of negotiations to settle the appeal amicably. One Mr. Karangwa Charles Alonso, the complainant, was questioned by the court and he confirmed the submissions of the Respondent's counsel.

- Pursuant to the forgoing analysis, I find merits in this application 17. and hereby release the Applicant on bail pending the determination of their appeal on the following terms: - (a) each Applicant shall pay cash bond of UGX. 2,000,000/=; - (b) each surety is bonded in the sum of UGX. 4,000,000/= NOT CASH; - (c) each Applicant shall report to the Deputy Registrar of the High Court at Mukono once every month with effect from 30^th September, 2024 till the disposal of the appeal;

(d) each party shall bear their own costs of this application.

I so rule and order accordingly. I so rule and order accordingly.<br>This ruling is delivered this day of August. 2024 by

**FLORENCE NAKACHWA JUDGE.**

In the presence of:

- (1) Counsel Elvis Twongirwe from M/s Bagyenda & Co. Advocates, for the Applicants; - (2) Mr. Kiriba Augustine, the 1^st Applicant; - (3) Mr. Wasswa Elijah, the 2^nd Applicant; - (4) Ms. Nalumisa Jane, the 3^rd Applicant - (5) Ms. Pauline Nakavuma, the Court Clerk.