[1993] UGHCCRD 16

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MBALE . CRIMINAL APPEAL NO. $\rm 7$ OF 1992 (FROM SOROTI OBIGINAL OR. CASE NO. 376/92)

FRANCIS RUSANYANTEKO .................................... C/O M/S NATSOMI & WANDERA ADVOCATES. MBALE

VERSUS

Hen, J. W. TSe Halls.

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

BEFORE: THE HONOURABLE MR. JUSTICE S. G. ENGWAU

**RULING:**

$\rightarrow$ $\mathcal{K}$

> This is an application for bail pending an appeal brought under section 217 (1) M. C. A. by Notice of motion supported by an affidavit.

The applicant was convicted on 25.11.92 on a charge of embezzlement contrary to section 257 (a) of the penal gode gct and was sentenced to 3 years: imprisonment. His appeal against both conviction and sentence is pending in this court. Bail be granted pending the substantive appeal.

$\mathcal{L} = \mathcal{L}$ In his submissions, the learned counsel for Applicant conceded that bail pending appeal can be granted only in exceptional circumstances: Masraru v. R (1960) EACA. In the instant case, the first such exceptional circumstance is that there is overwhelming probability that the appeal is likely to succeed. In that regard, the Counsel streneously argues that it is not in the interest of justice for the applicant to languish in prison. The one million shillings allegedly embezzled was no embezzlement at all but a mere loan granted to the applicant by one gapt. Mukula as a private affair and not as part of the $26m/m$ which papt. Mukula had to pay to the flying school at soroti as fees for 4 students sponsored by capt. Mukula.

The second such exceptional circumstance regarding this application hinges on the ill health of the applicant who is suffering from hypertension which is getting worse since he started serving santence.

In reply, Counsel for respondent strongly objected to granting this bail pending appeal. In the first instance, according to evidence on record, the applicant was convicted of embezzlement of $1m/$ = as part of a total fee of $26m/$ = for 4 students sponsored by Capt. Mukula to the Soroti Flying School. It was not a private loan at all between Capt. Mukula and the applicant.

gecondly, if anything, it is the applicant who has preferred to languish in prison. Notice of Appeal was filed in court on 9.12.92 and Memorandum of Appeal was filed on 30.12.92 and yet counsel for applicant after a period of over one month was not ready to argue the substantive appeal despite the fact that proceedings of the trial /2.

court were already in their hands.

lastly, on the issue of the applicant getting worse from hypertension, there is no competent medical report to that effect and strongly objected to a chit which the counsel for the applicant wanted to tender in court.

$\overline{2}$

Considering the submissions of both counsel, whether the applicant got a private loan of $1m/$ = from capt Mukula or not is an issue for the appellate court when the substantive appeal is being determined. similarly, whether the $1m/$ = was embezzled by the applicant or not is a matter for the appellate court after appraising and evaluating evidence on record.

On the question of hypertension, medical report would have assisted this court on this matter. The chit which the counsel for applicant wanted to tender was nothing but a chit from a medical assistant and not a medical officer. This is a dishonest approach on the matter which most stop if court is to be properly assisted.

finally, certified proceedings of the trial court have been at the disposal of the counsel for applicant and yet twice he is not ready to prosecute the appeal even after a period of over one month. No blame can be accepted that the applicant is languishing in prison et the hands of the respondent. Equity aids the vigillant not the is no comment tradical report to that effect and indolent. n peter to a chibal roungel for the explicant

Accordingly, this application for bail pending appeal is dismissed. gubstantive appeal be fixed on an early date convanient to this court for hearing. mikule of not is on issue for the

similarly, whether the $\vert \pi/$ = was estimated by the applicant or not is a mate a for the specifies moure after appropriate and avilyating evidence

applicant wented to conder use related bull- $2.2.93$ . from a modified bestbats and not similated officer. This is a dishonest approach on the

pically, partities proceedings of the trial court have been

at the disposal of the partner has applicant and jet import is not really to proporty and the second often a period of over one wash,

matter which must stop if court is to be properly assisted.

appellate court when the subset of appeal is being determined.

on record.

in bioni an de

The second S. G. ENGWAU

On the question of hypertension, modium to port issue now. assisted this mount on this mail. In this which the counsel for

ils of is longstaning in stand