THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

MISC. APPLICATION NO. 76 OF 2014

(ARISING FROM CRIMINAL APPEAL NO.45 OF 2014)

(APPEAL FROM THE ANTI CORRUPTION COURT CRIMINAL SESSION CASE NO. 0054 OF 2012)

  ANGOL MICHEAL  ::::::::::::::::::::::::::::  APPLICANT/APPELLANT

VERSUS

UGANDA   ::::::::::::::::::::::::::::::::RESPONDENT/PROSECUTOR

CORAM:   HON JUSTICE ELDAD MWANGUSYA, JA

RULING

This is an application for orders that, the applicant Angol Michael be granted bail pending the hearing and determination of the appeal before this honorable court.

The background of this application is that, the applicant was tried by the Anti- Corruption Court sitting at Kampala and he was convicted for the offence of Abuse of Office contrary to section 11 (1) of the Anti Corruption Act 2009 and was sentenced to 30 months imprisonment.

During the hearing of this application, Mr. Innocent OKong represented the applicant and Ms. Nalwanga Sharifa represented the Director of Public Prosecutions.

The application was brought under Article 23 (6) (a) of the Constitution of The Republic of Uganda, 1995, 132 (4) of the Trial on Indictments Act Cap 23, section 40 of the Criminal Procedure Code Act Cap 116 and R 43 and 44 of the Judicature (Court of Appeal Rules) Directions SI 13-10 and is based on the following grounds;

1. The applicant was sentenced to 30 months in jail on the 21^st day of February 2014 and has been in custody since then.
2. The applicant’s conduct while on bail in the High Court was compatible with bail practice at all times until he was sentenced.
3. The applicant’s appeal has a high likelihood of success.
4. It is in the interest of justice and the constitutional right to liberty that the applicant be granted bail pending appeal.

He further submitted that Section 132(4) of the Trial on Indictments Act gives this court jurisdiction to hear this application.

Section 132 (4) of the Trial on Indictments Act provides;

“Except in a case where the appellant has been sentenced to death, a judge of the High Court or the Court of Appeal may, in his or her or its discretion, in any case in which an appeal to the Court of Appeal is lodged under this section, grant bail, pending the hearing and determination of the appeal”.

Section 40(2) of the Criminal Procedure Code reads:

“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 notice of motion was accompanied by an affidavit in which the applicant deponed as follows;

1. That, the appellant has a fixed place of abode within this Honorable Court’s jurisdiction. He is a resident of St. Francis Local Council 1, Bwaise 3 Parish, Kawempe Division, Senjala Road, Kampala District on LRV 4367, Folio 4 Block 203 Kyadondo located at Bwaise.
2. That, during the High Court trial which lasted for close to two years, he was granted bail which he never jumped at any one time until he was convicted and sentenced, and that the sureties who stood for him for bail in the lower court are reputable citizens of Uganda with fixed places of abode within the jurisdiction of this Honorable Court.
3. That, the offence with which he was convicted of is neither one of a capital nature nor does it involve personal violence and the trial judge rightly held that he did not occasion any financial loss to the National Forestry Authority and the state as well thus, that, it is only just and fair him to be granted bail pending appeal.
4. That, the likelihood of the appellant’s interference with witnesses and or investigations is not possible since the investigations were long concluded in the High Court.
5. That, he is an elderly man of 56 years old and his continuous stay in prison exposes him to possible contraction of various infectious diseases while in prison.
6. That, the appellant has no previous criminal record as well as pending charges and or accusations.
7. That, the appellant has ailments that cannot be appropriately attended to by the prisons medical facilities and these include a disc prolapse in his back which requires regular visits to the doctor for physiotherapy and he is also hypertensive.
8. That, the appellant has a wife, six children and ten dependants and he is the sole bread winner/provider therefore his continued stay in prison denies them help they have been receiving from him.
9. That, the applicant’s appeal has a high likelihood of success.

Counsel further relied on the guidelines laid down in Arvind Patel vs. Uganda, Supreme Court Criminal Application No.1 of 2003. In that case, considerations which should generally apply to an application for bail pending appeal are:

(i)      the character of the applicant;
(ii)     whether he or she is a first offender or not;
(iii)    whether the offence of which the applicant was convicted involved personal violence;
(iv)    the appeal is not frivolous and has a reasonable possibility of success;
(v)     the possibility of substantial delay in the determination of the appeal and
(vi)    whether the applicant has complied with bail conditions granted before the applicant’s conviction and during the pendency of the appeal.

Ms Nalwanga opposed the bail application. She submitted that, the applicant’s appeal has no likelihood of success and there is no likelihood of delay to hear the appeal. The applicant has already filed a notice of appeal and memorandum of appeal. This means that there will be no delay.

Counsel for the respondent also objected to the medical report relied on. She pointed out that, the applicant was standing in court and sitting without difficulty. He can get physiotherapy from prison.

Court will in turn be guided by the above principles in Arvind Patel vs. Uganda, Supreme Court Criminal Application No.1 of 2003 to determine whether the applicant fulfilled majority of them.

This court has followed the above criteria set down in the case of Arvind Patel vs. Uganda, Supreme Court Criminal Application No.1 of 2003 in a number of decisions where applicants have applied for bail pending appeal. It has been observed, while making a distinction between an application for bail pending trial and an application for bail post conviction. That an applicant for bail pending appeal bears the burden of proving that there are exceptional reasons to warrant his or her release on bail. (See: HUDSON JACKSON ANDRUA V UGANDA APPLICATION NO. 75 OF 2004) where the decision in S SINGH LAMBA VS. R (1958) E.A.  337 was followed while factors like the character of the applicant and whether he or she is a first offender or not may be taken in to account. They cannot said to be exceptional reasons for release of a convict/appellant on bail pending appeal. The hardships to his or her dependants are irrelevant. This court without the record of  proceedings of the lower court would not be able to tell as to whether or not the appeal has chances of success. The only factor that favors the grant of bail pending appeal in this case is that, the applicant may serve a substantial part of his sentence before the hearing of his appeal because as of now the record of proceedings has not been forwarded to this court and when it is forwarded there is no guarantee of an expeditious disposal of the appeal given the current workload of the court.

In the result, the applicant is granted bail in the following terms:-

1. He will execute a bail bond of shs. 50,000,000/= (Not cash)
2. He will present three sureties namely: Mr. Yafesi Otim Omara, Mr Okwera Jimmy and Mr Oscar Okech, each of whom will execute a bond of shs. 20,000,000/= (Not cash)
3. The applicant shall report to the registrar of this court on every last working day of the month starting 30.04.2014 for extension of his bail until his appeal is heard and disposed of or until further orders of this court.

Dated this _03__ Day of  April 2014

                             __________________________________

HON JUSTICE ELDAD MWANGUSYA