[2025] UGHC 518


## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT MA 33 OF 2025** 5 **(ARISING FROM HCT CRIMINAL APPEAL 007 OF 2025)**

# **(ARISING FROM NTUNGAMO CRIMINAL CASE NO. NTU-03-CR-CO-0059/2023)**

**RUTAREMWA EDWARD ------------------------------- 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. Muhumuza Ben from M/s Muhumuza 20 Ben & Co Advocates, while the Respondent was represented by State Attorney Jacob Nahurira.

## **BACKGROUND**

The Applicant was convicted by Her Worship Nassuna Sharon, Magistrate Grade 25 one at the Chief Magistrates Court of Ntungamo at Ntungamo on the offence of theft C/S 237 (1) and 244 of the Penal Code Act CAP 128. He was then sentenced on 8th April 2025 to imprisonment of one year and six months' and compensation of Uganda shillings 1,200,000/=. The Applicant being dissatisfied with the conviction and sentence, appealed to the High Court *vide* HCT

30 Criminal Appeal No.007 of 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, The Constitution (Bail

5 Guidelines for courts of Judicature) (Practice) directions 2022.

## **GROUNDS**

The grounds of the application as presented in the Notice of Motion and supporting affidavit by the Applicant are as follows;

- 10 1. That the offence with which the applicant is convicted is bailable. - 2. That applicant has special circumstances that require release appeal. - 3. That the Applicant has substantial sureties. - 4. That the Applicant has a fixed place of abode. - 5. That the applicant had been granted bail at the trial before the lower court - 15 and he did not abscond. - 6. That it is fair, reasonable and in the interest of justice that the applicant be released on bail pending his appeal.

#### **SUBMISSIONS**

20 The applicant filed submission on file. They were served on the office of the Directorate of Public Prosecution on 02 June 2025. On 5th June 2025, the court gave out schedules for the state to file submissions in reply, but it was not done. The submissions on record have been considered.

#### 25 **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:

30 *"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; - 5 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; - 10 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.

- 20 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 25 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.** - 30 **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 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.* 5 *However, we respectfully disagree with the learned single Justice's conclusion that the applicant has no right to apply for bail pending appeal".*

The panel of the Justices of the Supreme Court in deciding **NAKIWUGE** 10 **RACHEAL MULEKE VS. UGANDA, CRIMINAL REFERENCE NO. 12 OF 2O20** held that the **ARVIND PATEL VS UGANDA** case was rightly decided, and they did uphold it as the proper position of the law on bail pending appeal.

I find that the Supreme Court case references¹ stated above, therefore 15 confirmed that the conditions that an applicant is required to be prove in applications for bail pending appeal are those that were laid out in **ARVIND PATEL VS UGANDA, SUPREME COURT CRIMINAL APPLICATION NO. 1 OF 2003.**

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

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

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 25 of appeal and memorandum of appeal, or even the judgement of the lower court ought to be made available to the appellant court handling an application for bail pending appeal.

In the application before this court, the applicant has attached to his affidavit 30 in his affidavit in support a national identity card (annexure B), the judgment of Her Worship Nassuna Sharon delivered on 8th April 2025 (annexure C) and the memorandum of appeal filed in the High Court in Criminal appeal 7 of 2025

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.

(annexure D). I find from the above attachments that the applicant has filed an appeal in this court pending consideration.

Her Worship Nassuna Sharon sentenced the applicant herein to imprisonment 5 of one year and six months and compensation of Uganda shillings 1,200,000/=.

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 10 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.

- Considering that the convict has a legal right of appeal and also considering that he was sentenced on 8 th April 2025 to imprisonment for one year and six 15 months and compensation of Uganda shillings 1,200,000/=. It means that the applicant has already served more than 3 months of his 18 months' sentence, without considering remission. I find that it would be a great injustice if the applicant's appeal is successful, when he has already served the sentence. - 20 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 **MAGOMBE VS UGANDA, SUPREME COURT CRIMINAL REFERENCE 13 OF 2020**.

In **MAGOMBE VS UGANDA SUPREME COURT CRIMINAL REFERENCE 13 OF** 25 **2020** The supreme court also held that:

"*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* 30 *shielded by the presumption of innocence espoused in Article28 (3) of the Constitution of Uganda. The conditions for bail pending appeal are thus 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 following—*

5 *(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 Prosecutions; or*

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

Guideline 4 of The Constitution (Bail Guidelines for courts of Judicature) (Practice) directions 2022 states that advanced age *"means sixty years of age and above"*

The National Identity card shows that the convict, the applicant herein was born on 23 April 1961, which makes her 64 years of age. He is therefore considered in the law as a person of advanced age. (*see annexure B to the affidavit in support*)

I am mindful of the fact that the applicant was on bail during trial in the lower court and did not abscond. I find the sureties presented, that is Ms Atukwase Babrah and Mr Orishaba David to be substantial.

- 25 In light of the guidance in **ARVIND PATEL VS UGANDA SUPREME COURT CRIMINAL APPLICATION NO. 1 OF 2003**, that a combination of any two or more conditions for bail pending appeal may be sufficient, I have in this application now before me considered the fact that: - 1) The convict is 64 years of age, which means he is of advanced age as 30 defined in the law. - 2) The convict has a legal right to appeal against the conviction and sentence which he has exercised by filing High Court Criminal Appeal No 007 Of 2025. - 3) He was sentenced to imprisonment for one year and six months and 35 compensation of Uganda shillings 1,200,000/= of which he has already

served over 3 months, so there is thus a real risk of serving the sentence before his appeal is heard.

- 4) I also find the sureties presented substantial, these are Ms Atukwase Babrah and Mr Orishaba David - $\mathsf{S}$

I find this a befitting case for court to exercise its discretion to grant bail pending appeal. I take note that the state did not challenge the application.

Generally, convicts granted bail pending appeal are given more stringent terms because a court of law has already found them guilty of an offence.

I grant bail pending appeal on the following terms

- 1) The applicant will pay a cash bail of UGX 1,000,000/= (one Million Shillings). - 2) The sureties are each bonded in the sum of Uganda shillings $10,000,000/$ = (Ten million shillings) Non cash. - 3) This bail will immediately be canceled if the applicant is charged with any other offence.

4) The applicant will report to the Registrar High Court Mbarara on every first Monday of the month, starting with 4^th August 2025 until advised otherwise.

5) The Registrar of the High Court – Mbarara will put the applicant's appeal on the next session of handling appeals so that it is heard at the earliest opportunity.

unter 3

**NSHIMYE ALLAN PAUL M. JUDGE** 14.07.2025

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