[2025] UGHC 519


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT MA 30 OF 2025** 5 **(ARISING FROM HCT CRIMINAL APPEAL 5 OF 2025) (ARISING FROM MBARARA MAGISTRATES CRIMINAL CASE NO. 253/2024)**

**NUWAGABA TARASISIO ------------------------------- APPLICANT**

10 **VERSUS UGANDA ------------------------------------------------ RESPONDENT**

**BEFORE:** Hon. Justice Nshimye Allan Paul M.

## **RULING ON AN APPLICATION FOR BAIL PENDING APPEAL**

### **REPRESENTATION**

The applicant was represented by Adv. Evelyn Natukunda, while the 20 respondent was represented by State Attorney Jacob Nahurira

## **BACKGROUND**

The applicant was on 11 February 2025 convicted by His Worship Buhungiro Benjamin, Magistrate Grade one at the Chief Magistrates Court of Mabarara at

25 Mbarara on the offence of assault occasioning actual bodily harm contrary to section 219 of the Penal Code Act CAP 128. He was then sentenced on 26th February 2025 to imprisonment of twenty months and compensation of Uganda shillings 250,000/=. The Applicant being dissatisfied with the conviction and sentence, appealed to the High Court *vide* HCT Criminal Appeal No.5 of 30 2025.

## **APPLICATION**

The Applicant filed this application for bail pending appeal by way of a notice of motion basing on the law in Article 23(6)(a) of the Ugandan Constitution, Section 40 (2) of the Criminal Procedure Code Act.

# **GROUNDS**

The grounds of the application as presented in the Notice of Motion are that;

- 1. The applicant filed an appeal against his conviction and sentence vide HCT criminal appeal no 5 of 2025. - 10 2. That the applicant was previously granted bail during trial which is the subject of this appeal which he fully honoured. - 3. The applicant is innocent until proven guilty or pleads guilty. - 4. The applicant is a first offender and has never previously convicted of any criminal offence. - 15 5. That the Applicant has a fixed place of abode. - 6. That the Applicant has substantial sureties. - 7. That the applicant has a constitutional right to apply for bail on such terms as this court may deem fit. - 8. That it is in the interest of justice that the application is granted. - 20

## **SUBMISSIONS**

The applicant filed written submission on 5 th June 2025, where in it was submitted that he is innocent until proven guilty ad all investigations are compete. The office of the Directorate of Public Prosecution submitted orally on 5th 25 June 2025 with State Attorney Jacob Nahurira highlighting that the applicant has not proved any exceptional circumstances or complied with conditions provided in guideline 19 of the The Constitution (Bail Guidelines for courts of Judicature) (Practice) directions 2022. The submissions on record by both parties have been considered.

## **DETERMINATION**

It is trite that the High Court has discretion to entertain and determine an application for **bail pending appeal** as is stipulated in **SECTION 40 (2) OF THE CRIMINAL PROCEDURE CODE ACT CAP 122**, which states that:

*"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."*

In **ARVIND PATEL VS UGANDA, SUPREME COURT CRIMINAL APPLICATION NO.**

**1 OF 2003**, Hon Justice Arthur Oder (JSC) laid down the conditions to be considered in an application for bail pending appeal as follows:

- a) the character of the applicant; - 10 b) whether he/she is a first offender or not; - c) whether the offence of which the applicant was convicted involved personal violence. - d) the appeal is not frivolous and has a reasonable possibility of success;

- 15 e) the possibility of substantial delay in the determination of the appeal. - f) whether the applicant has complied with bail conditions granted after the applicant's conviction and during the pendency of the appeal (if any).

The Learned Judge of the Supreme Court also opined that it is not necessary that all the conditions be present in every case, concluding that a combination of two or more in the criteria may be sufficient.

25 The conditions set out in the Arvind Patel case had been challenged by Hon. Lady Justice Dr. Esther Kisakye (JSC) In **MAGOMBE JOSEPH JOSHUA VS UGANDA, SUPREME COURT CRIMINAL APPLICATION 11 OF 2019**, when she held that there is no constitutional provision permitting the seeking and the grant of bail to a person that has been convicted. She then concluded that the

- 30 Arvind Patel case had been wrongly decided. This position of Her Lordship was addressed by a panel of three Justices of the Supreme Court handling a reference in the **MAGOMBE JOSEPH JOSHUA VS UGANDA, SUPREME COURT CRIMINAL REFERENCE 13 OF 2020** case where they agreed with the holding in the **NAKIWUGE RACHEAL MULEKE VS. UGANDA, CRIMINAL REFERENCE NO.** - 35 **12 OF 2O20** case, where the Justices of the Supreme court also reacted to the

holding of Hon Justice Dr. Esther Kisakye (JSC) In the **MAGOMBE JOSEPH JOSHUA VS UGANDA, SUPREME COURT CRIMINAL APPLICATION 11 OF 2019** holding that:

*"We agree that the 1995 Constitution does not provide for the* 5 *right to apply for bail pending appeal. It does not specifically rule it out either. We also agree that once an accused 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* 10 *bail pending appeal".*

The panel of the Justices of the Supreme Court in deciding **NAKIWUGE RACHEAL MULEKE VS. UGANDA, CRIMINAL REFERENCE NO. 12 OF 2O20** held that the **ARVIND PATEL VS UGANDA** case was rightly decided, and they did 15 uphold it as the proper position of the law on bail pending appeal.

I find that the Supreme Court case references¹ stated above, therefore confirmed that the conditions that an applicant is required to be prove in an application for bail pending appeal are those that were laid out in **ARVIND**

20 **PATEL VS UGANDA, SUPREME COURT CRIMINAL APPLICATION NO. 1 OF 2003.**

#### **GROUNDS 1,2,3,4 5, 6, 7 & 8**

I will handle all the grounds raised in the application collectively.

- 25 In **KYEYUNE MITALA JULIUS VS UGANDA, SUPREME COURT CRIMINAL APPLICATION NO. 09 OF 2016**, it was held that it is impossible to gauge the success of the appeal in the absence of the record. This means that the notice of appeal and memorandum of appeal, or even the judgement of the lower court ought to be made available to the appellant court handling the 30 application for bail pending appeal.

In the application before this court, the applicant has attached to his affidavit in support the judgment of His Worship Buhungiro Benjamin delivered on 11th

¹ Nakiwuge Racheal Muleke Vs. Uganda, Criminal Reference No. 12 of 2020 and Magombe Joseph Joshua Vs Uganda Supreme Court Criminal Reference 13 Of 2020.

February 2025 (annexure D) and the memorandum of appeal filed in the High Court in Criminal appeal 5 of 2025 (annexure B). I find from the above attachments that the applicant has filed an appeal in this court pending consideration.

His Worship Buhungiro Benjamin sentenced the applicant herein to imprisonment of twenty months' and compensation of Uganda shillings 250,000/=.

10 I am of the opinion that convicts that have been sentenced to two years or less ought to be considered more favorably in applications for bail pending appeal, than those who have been sentenced to many years, because those that are sentenced to two years or less stand a real risk of serving their sentence before their appeal is heard given the huge work load of the court.

I note that although convict has a legal right of appeal there is need to consider the conditions that an applicant is required to be prove in an application for bail pending appeal as were laid out in **ARVIND PATEL VS UGANDA, SUPREME COURT CRIMINAL APPLICATION NO. 1 OF 2003.**

One of the conditions is to determine of the applicant was convicted of an offence that involved personal violence. In this case the complaint was beaten as a suspected thief, tied and he suffered injuries classified as harm on Police Form 3. (*see page 2 of the judgement of His Worship Buhungiro Benjamin* 25 *attached as annexure D to the affidavit in support of this application*).

State Attorney Jacob Nahurira from the Office of the Directorate of Public Prosecutions in his submissions against the grant of bail pending appeal stated that the applicant has not complied with the conditions in guideline 19 of The

30 Constitution (Bail Guidelines for courts of Judicature) (Practice) directions 2022. I agree with the State Attorney.

This court also has to interrogate whether the applicant has any exceptional circumstances as a required condition for bail pending appeal as was stated in

35 **MAGOMBE VS UGANDA, SUPREME COURT CRIMINAL REFERENCE 13 OF 2020**

In **MAGOMBE VS UGANDA SUPREME COURT CRIMINAL REFERENCE 13 OF 2020** The Supreme Court also held that:

5 "*The consideration for release of an Applicant on bail pending appeal hinges on whether there are exceptional and unusual circumstances warranting such release. This is because the Applicant is no longer wholly shielded by the presumption of innocence espoused in Article28 (3) of the Constitution of Uganda. The conditions for bail pending appeal are thus* 10 *higher than those of bail pending trial."*

**SECTION 16 (3) OF THE TRIAL ON INDICTMENTS ACT CAP 25** has guided on what amounts to exceptional circumstances in the following way.

*"In this section, "exceptional circumstances" means any of the* 15 *following—*

> *(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 the Director of Public* 20 *Prosecutions; or*

*(c) the infancy or advanced age of the accused"*

I have perused the application and the accompanying affidavit and I don't find any evidence put forward of any exceptional circumstance as stipulated in law.

Lastly, I perused the application and note from the grounds, affidavit evidence and submissions presented by the applicant were as though this was an application for bail pending trial, yet this was an application for bail pending appeal.

It is important to note that the considerations for bail pending appeal are specific as was laid out by the Supreme Court in **ARVIND PATEL VS UGANDA SUPREME COURT CRIMINAL APPLICATION NO. 1 OF 2003, therefore** an applicant seeking bail pending appeal ought to present evidence guided by the

conditions in ARVIND PATEL VS UGANDA SUPREME COURT CRIMINAL APPLICATION NO. 1 OF 2003.

In conclusion, I find that the applicant has not put forward, by way of affidavit evidence, conditions to justify this court to exercise its discretion to grant bail $\mathsf{S}$ pending appeal.

I dismiss the application for bail pending appeal.

$10$

June 18

**NSHIMYE ALLAN PAUL M. JUDGE** 15.07.2025

$\mathcal{L}$