THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO 52 OF 2017
(ARISING FROM CRIMINAL APPEAL NO 220 OF 2017)
(ALL ARISING FROM CRIMINAL CASE NO 052 OF 2015 & HTC - 011 - CR - CSC 0134 OF 2016)
MELLAN MAREERE}......................................................................................... APPLICANT
BEFORE HON MR. JUSTICE CHRISTOPHER MADRAMA
The Applicant applied for bail pending determination of her appeal. The application was lodged by Notice of Motion under section 132 (4) of the Trial on Indictment Act Cap 23, section 40 of the Criminal Procedure Code Act Cap 116 and Rules 6 (2) (a), 43 and 44 of the Judicature (Court of Appeal Rules) Directions.
The grounds of the application are contained in the Notice of Motion and are:
1. The Applicant was convicted and sentenced to serve 29 years and 10 months imprisonment for the offence of murder contrary to Sections 188 and 189 of the Penal Code Act Cap 120 on 7th June, 2017 and has been in custody since then.
25 2. The Applicant's conduct while on bail in the High Court was compatible with the bail practice at all times until she was sentenced.
3. The Applicant lodged an appeal with a high likelihood of success.
30 4. The Applicant is of advanced age suffering from asthma, meningitis and she is an immune suppressed patient with a dislocated shoulder grave illness that require adequate medical attention.
- The Applicant has a constitutional right to apply for bail and it may take long before her appeal is heard and determined.
- The Applicant has a fixed place of abode at Burora Village, Katungu Parish, Rugyeyo Sub County, and Kanungu District within the jurisdiction of this court
and is willing to abide by all the conditions that may be imposed upon her by this honourable court and will not abscond.
- Apart from the charge she was convicted, the Applicant has no previous criminal record as well as other pending charges against her in any court of law.
- The Applicant has substantial sureties who are resident within the jurisdiction of this honourable court who are ready to stand for her.
9. It would be in the interest of substantive justice if the Applicant is granted bail pending the determination of the appeal.
The application was filed in the court registry on 3rd July 2017 and is supported by the affidavit of the Applicant commissioned on 21st July, 2017. In the affidavit in support of the application, the Applicant deposed that she is a female adult Ugandan of sound mind aged 72 years, LC 5 Women Counsellor, Rugyeyo Sub County, Kanungu District and the Applicant. On 7th June, 2017, she was convicted of murder contrary to Section 188 and 189 of the Penal Code Act and sentenced to 29 years and 10 months imprisonment. She is currently serving the sentence at Luzira Prisons. She filed an appeal against conviction and sentence in the Court of Appeal and attached a copy of the Notice of Appeal marked as annexure "A". She had previously been released on bail before her trial in the High Court and fulfilled all the conditions imposed on her until her conviction. She is of advanced age and suffers from asthma, meningitis and is an immune suppressed patient with a dislocated shoulder, grave illness that requires adequate medical attention. She deposed that she has a constitutional right to apply for bail and it may take long before her appeal is heard and determined considering the heavy workload of the court. Apart from the charge for which she was convicted, she has no previous criminal record or pending charges against her in any other court of law. In the main she repeats the grounds in the Notice of Motion that she has a fixed place of abode at Burora Village, Katungu Parish, Rugyeyo Sub County, Kanungu District within the jurisdiction of this court and is willing to abide by all the conditions that may be imposed upon her by this honourable court and will not abscond. Furthermore, she has substantial sureties who are resident within the jurisdiction of this honourable court who are willing to and will stand for her to be produced at the hearing of the application with the leave of court.
The affidavit in reply is that of Daisy Nabasitu Principal State Attorney working with the office of the DPP. She denied the contents of the Applicant's affidavit and deposed that the Applicant was presumed innocence before conviction and upon her conviction the presumption of innocence no longer applies. As to the alleged illness of the Applicant, there is no documentary proof thereof and no evidence that the illness cannot be managed at the Prisons. The Applicant has no substantial sureties. She prayed that the application be dismissed.
At the hearing of the Application Counsel Joanita Tumwikirize State Attorney from the office of the DPP represented the Respondent while Counsel MacDusman Kabega represented the Applicant. The Applicant was produced in Court by the Prisons authorities at the hearing. The Applicant's Counsel reiterated the grounds in the Notice of Motion and Affidavit in support.
The Applicant's case in summary is that she was convicted of the offence of murder on 7th June 2017 and sentenced to 29 years and 8 months. Being aggrieved by the decision of the High Court she filed a notice of appeal on 25th July, 2016 and lodged an application for bail pending appeal. She later filed an additional affidavit on 8th of May 2018. The facts in support of the application are in the two affidavits.
The appeal has not been fixed for hearing and she was on bail during the trial which lapsed at the time of conviction and during that period she religiously complied with the terms of bail. From the two medical reports, the Applicant is stated to be 73 years old. She suffers from HIV and Bronchial Asthma with frequent attacks and has hypertension and is classified as of advanced age. On the question as to whether there are medical grounds for release on bail the Applicant's Counsel directed the court to peruse the decision of Oder JSC in Arvind Patel v Uganda Supreme Court Criminal Application No 1 of 2003. The decision sets out a number of conditions and it was held inter alia that a combination of two or more factors would suffice. The age of the Applicant is one ground. The second ground is the fact that no personal violence was cited in the Applicant's alleged involvement and thirdly the issue is whether the appeal has a high likelihood of success.
The Applicant's Counsel argued that the evidence of the lower court does not demonstrate that the Applicant physically participated in assault or burning down the house of the deceased. There are three or four witnesses who were key witnesses and none of them cited the appellant as being one of those who assaulted or set fire to the deceased premises. It is clear from evidence on record accepted by the trial judge that the attack on the deceased was a result of mob justice according to page 11 of judgment of trial judge. He said that the offence was committed when there were many people and the scene was like a market place. The 4 key witnesses mentioned the rest of the convicts but the appellant was not cited as one of those involved in the assault of the deceased. The Applicant's Counsel submitted that the issue of personal violence and participation are intertwined. At the end of the judgment, the learned trial judge considered the law on common intention under section 20 of the Penal Code Act at page 17 of his judgment and stated that because the appellant was a district Councillor and did not stop people from committing the crime and secondly she prevented somebody from going to report to police which amounted to conduct of common intention. Assuming that was the evidence of participation of the Applicant then perhaps the learned trial judge ought to have considered section 51 of the Penal Code Act. The section defines the offence of a person who without lawful excuse prints, publishes, or to any assembly makes any statement indicating or implying that it would be incumbent or desirable to do any physical act to bring death to any person and prescribes a penalty of imprisonment for 3 years. That being the evidence, the learned trial judge was in error to find the Applicant guilty of murder. It follows that the chances are very high that the Applicant's appeal will succeed. He further reiterated that he had no doubt that that the Applicant's appeal will succeed.
The Applicant's Counsel further submitted that the summary of the case and paragraph 7 thereof of the DPP states that "A1 Mellan Merere area Councillor who was also part of the group made an alarm while inciting other people to come and revenge ... for what he had done to Tuhimbise Charles..". The case of the DPP was inciting other people. Nowhere did he list her as having participated in the assault. It follows that her appeal has a high chance of succeeding.
Thirdly, the learned trial judge erred in admitting the prosecution evidence first and then turning to the defence case to show whether it is believable or not instead of looking at the evidence as a whole. He relied on the case of Okethi and Others v Rep  EA 555. The court in that case held that in criminal proceedings, the court should look at the evidence as a whole.
In the case of Alenyo Marks v Uga.ida Supreme Court Miscellaneous Application No. 05 of 2015 the prisoner had been convicted of the offence of murder and sentenced to death. At page 8 it was held that it is not necessary for all conditions to be present for bail to be granted. One, two or three conditions may be sufficient. Each case should be considered on the basis of its facts and circumstances. At page 9 it was held that as long as the appeal lies, the presumption of innocence continues. On the court seeking clarification, the Applicant's Counsel emphasised that the main point is the likelihood of success of the appeal.
Finally the Applicant presented some sureties in court.
In reply Counsel Joanita Tumwikirize Senior State Attorney opposed the application and 20 submitted that the Respondent relied on the affidavit in reply of Principal State Attorney Daisy Nabasitu. She submitted that the Applicant was presumed innocent before her conviction and sentence and she no longer enjoys the presumption of innocence because she has been convicted and sentenced to a long term of imprisonment. Secondly, because of the long term of imprisonment, the Applicant would have a high temptation to jump bail. Regarding the medical condition of the Applicant, the letter from hospital clearly mentioned what she is suffering from but does not indicate that the prisons cannot manage her condition. On whether the Applicant has a previous criminal record, Counsel confessed that there was no evidence and she could not tell. Regarding the likelihood of success of the appeal, the evidence was evaluated and the 30 Applicant was placed at the scene of crime. The court found that she was guilty of common intention and the DPP preferred a murder charge in the circumstances.
In rejoinder, the Applicant's Counsel wondered whether the Applicant under a "common intention" was guilty. He wondered why her sentence was different from that of the co accused. The Applicant was sentenced to 29 years but 4 other accused persons were sentenced to 33 years and two were sentenced to 34 years. If they were all guilty of the same offence, why should the sentence vary? He reiterated that the appeal has a high chance of success.
I have carefully considered the application for bail pending appeal together with the evidence and taken into account the submissions of Counsel. I do not need to belabour the conditions for grant of bail pending appeal which endeavoured to set out in Sheikh Yunus Kamoga v Uganda Criminal Application No 77 Of 2017 (Arising From Criminal Appeal No 321 of 2017). For emphasis the following principles are pertinent in the authorities reviewed:
A convicted person who knows he or she has little chance of succeeding on appeal is unlikely to wait patiently to serve what might be a severe sentence of imprisonment. If bail is to be granted to a person serving a severe sentence, very stringent conditions 15 must be imposed. Bail pending appeal maybe granted when there are exceptional and unusual circumstances which depend on the facts of each case. Thirdly, bail may be granted if there is an overwhelming probability of the appeal succeeding. Last but not least bail would be granted if it is unlikely that the appeal would be heard until the end or after the expiration of the sentence appealed against.
In Raghbir Singh Lamba v R  1 EA 337 (High Court of Tanganyika) Spry Ag J at page 338 it was held that the burden is on the prosecution pending trial why the accused should not be released on bail. The onus shifts to the accused to show why he or she should be released on bail pending appeal after his or her conviction and sentence.
In Girdhar Dhanji Masrani v R  1 EA 320 Sheridan J, judge of the High Court of Uganda held that different principles should apply to applications for bail pending appeal after conviction compared to applications for bail pending trial.
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 (See Harris J in Chimambhai v Republic (No. 2)  1 EA 343 (High Court of Kenya at Mombasa). In Kaguma v Republic  1 EA 68 it was reiterated by the Court of Appeal of Kenya following earlier precedents that "The most important issue here is if the appeal has such overwhelming chances of success that there is no justification for depriving the Applicant his liberty.
In Arvind Patel v Uganda Supreme Court Criminal Appeal No. 1 of 2003 Oder JSC included the fact of whether the appeal is no frivolous and ha a reasonable prospect of success. Furthermore, the question inter alia includes whether the Applicant complied with bail terms that had previously been granted by the lower court. Other factors to consider include the character of the Applicant; (2) whether he/she is a first offender or not; (3) whether the offence of which the Applicant was convicted involved personal violence; (4) Whether there is possibility of substantial delay in the determination of the appeal. A combination of two or more criteria may be sufficient and each case must be considered on the basis of its own facts and circumstances.
Regarding the presumption of innocence the Supreme Court in Busiku Thomas v Uganda Criminal Appeal No. 33 of 2011 (Tumwesigye & Dr. Kisaakye JJSC; Tsekooko, Okello and Kitumba Ag. JJSC) held that:
"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."
Bail pending appeal proceeds under Rule 6 (2) (a) of the Judicature (Court of Appeal) Rules provides that:”
"6. Suspension of sentence and stay of execution
- Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may-
- in any criminal proceedings, where Notice of Appeal has been given in accordance with rule 59 or 60, of these Rules, order that the Appellant be released on bail or that the execution of any warrant of distress be suspended pending the determination of the appeal; and...”
Secondly, section 40 (2) of the Criminal Procedure Code Act Cap, 116 gives the appellate Court discretionary power whether to admit an appellant to bail pending appeal:
"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."
Such discretionary power is exercised judicially and in accordance with the principles of set out in the above authorities.
Notwithstanding the above authorities, bail pending trial for capital offences has special statutory provisions under section 15 of the Trial on Indictment Act Cap 23. This received judicial consideration in Kairu Arajab and Kange Patrick v Uganda Court of Appeal Miscellaneous Application No. 34 of 2014 where Hon. Mr. Justice Kenneth Kakuru held that a convict can be granted bail pending appeal subject to the exceptional circumstances under Section 15 of the Trial on Indictment Act Cap 23. He said:
"Before conviction an Applicant charged with a serious offence is required to prove exceptional circumstances as set out in Section 15 of the Trial on Indictments Act. It cannot be the law that upon conviction the same person has no duty to prove those exceptional circumstances."
Section 15 of the Trial on Indictment Act Cap 23 provides as follows
"15. Refusal to grant bail.
- Notwithstanding section 14, the court may refuse to grant bail to a person accused of an offence specified in subsection (2) if he or she does not prove to the satisfaction of the court—
- that exceptional circumstances exist justifying his or her release on bail; and
- that he or she will not abscond when released on bail."
Offences under section 15 (2) include under sub section (a) an offence triable by the High Court such as the offence of murder of which the Applicant has been convicted. Secondly, exceptional circumstances are defined by section 15 (3) and additional factors are considered by section 15 (3) which are reproduced for ease of reference:
"(3) In this section, "exceptional circumstances" means any of the following—
- 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;
- a certificate of no objection signed by the Director of Public Prosecutions; or
- the infancy or advanced age of the accused.
(4) In considering whether or not the accused is likely to abscond, the court may
take into account the following factors—
- whether the accused has a fixed abode within the jurisdiction of the court or is ordinarily resident outside Uganda;
- whether the accused has sound securities within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail;
- whether the accused has on a previous occasion when released on bail failed to comply with the conditions of his or her bail; and
- whether there are other charges pending against the accused."
I agree with Hon Justice Kakuru's conclusions that bail after conviction cannot be considered more lightly than bail pending trial where exceptional circumstances have to be proved. In this case the Applicant had been released on bail pending trial and complied with the bail terms until it was cancelled upon her conviction and sentence to a term of imprisonment. I however do not agree that a certificate of the directorate of public prosecutions is necessary. It could have been necessary before her trial but not after conviction where evidence can be evaluated and the chances of success of the appeal can be considered.
The Applicant is the certainly of advanced age being about 73 years old. However the conditions for the grant of leave it pending trial cannot be the same because someone of advanced age was been convicted is now considered a person against whom the offence has been proved beyond reasonable doubt by the court which tried. This is even so when the offence is a serious offence such as murder. In Kaguma v Republic  1 EA 68, the Court of Appeal of Kenya at Nairobi held per Ochieng Ag J held that:
"whereas ill-health alone may not necessarily constitute exceptional circumstances, I deem the combination of the Applicant's age and ill-health to be exceptional."
In that case the Applicant was said to be 75 years old and it was argued that due to his age, his continued stay in prison would expose his life to real danger. He was frail and could not recognise anybody according to the evidence. In Uganda, the matter is in the hands of the Medical officer.
There is no evidence whatsoever that there are other charges pending against the Applicant. The prisoner had been released on bail pending trial in the High Court and complied with the bail terms.
Turning to the facts of this application, the first and main issue is whether the Applicant's appeal will succeed or whether the appeal has a high chance of success.
I have accordingly considered the submissions of the appellant's Counsel and particularly that pointing me to the record of appeal together with the memorandum of appeal which was filed on 2nd of May, 2018. The memorandum of appeal is that the learned trial judge erred in law and fact when he misdirected itself on the evidence on record and convicted the appellant of murder without evidence of her physical participation in the assault of the deceased. Secondly, it is averred that the learned trial judge erred in law and fact when he misapplied the doctrine of common intention to convict the appellant. The other grounds flow from the main premises that the Applicant did not physically participate in the assault of the deceased person.
I have accordingly perused the record and the conclusions of the trial judge to establish whether there is an overwhelming chance of success of the appeal on the ground that the Applicant did not physically participate in the assault on the deceased. The evaluation of the evidence and the record clearly demonstrates that the Applicant did not physically participate in the assault on the deceased or in the burning of the deceased house subsequently. The case against the Applicant seems to hinge on the fact that she informed a gathering after a fight between one Charles Muhimbise and the deceased that the deceased that killed the Charles Muhimbise. In fact Charles Muhimbise had been whisked away to hospital after the fight in which the deceased had seriously injured him. The Applicant who was at the scene informed interested bystanders and neighbours that the deceased had killed Charles Muhimbise who by that
time had been taken to the hospital. Thereafter there was mob action/justice against the deceased. It is the events leading to the death of the deceased which form the basis of the charge. The evidence is that the Applicant who is an LC5 Councillor urged members of the public at the scene to avenge the death of Charles Muhimbise (who apparently was not dead but was in hospital). The court found that as a leader she had the mandate of the people which implies she commands authority over them.
The learned trial judge found incidences proving common intention under section 20 of the Penal Code Act of the Applicant. His conclusions are particularly set out at pages 17 and 18. They are that the Applicant was not seen by any witnesses in the act of demolishing the house of the deceased, setting it on fire. The evidence was that she instigated the crowd to revenge the death of Charles Muhimbise even after she was told that he has been injured but was not dead. She is reported having blocked someone from reporting the mob justice to the police and she urged people to expedite what they were doing before the police came. She instructed someone to light a mattress cover and not the mattress for quick result of fire.
The Applicant's Counsel submitted that the Applicant could have been convicted of another offence i.e. inciting murder. He drew my attention to section 51 of the Penal Code Act cap 120 laws of Uganda for the offence of inciting violence. The actual offence is inciting violence and reads as follows:
"51. Incitement to violence.
(1) Any person who, without lawful excuse, prints, publishes or to any assembly
makes any statement indicating or implying that it would be incumbent or desirable—
(a) to do any acts calculated to bring death or physical injury to any person or to any class or community of persons; or (b) to do any acts calculated to lead to destruction or damage to any property, commits an offence and is liable to imprisonment for three years.
- A person shall not be prosecuted for an offence under this section without the written consent of the Director of Public Prosecutions.
- For the purpose of this section, "assembly" means a gathering of three or more persons."
The offence carries a penalty of up to 3 years imprisonment. It may be arguable that not having physically participated in the assault of the deceased and the burning of his property leading to his death may be considered in favour of the Applicant. There is strong evidence that the Applicant urged other people to participate in the lynching or killing of the deceased. On the other hand the Respondent's Counsel submitted that the issue was that a charge or murder was preferred because there was common intention to murder Rukandonda George, the deceased. The judge found that there was common intention. The Applicants Counsel argued that the doctrine of common intention was applied to charge the Applicant with murder.
It is further arguable whether the Applicant could have been properly charged with the offence of murder which is clearly defined under section 186 of the Penal Code Act which provides as follows:
Any person who of malice aforethought causes the death of another person by an unlawful act or omission commits murder."
Did the acts of the Applicant cause the death of the deceased? What were these acts? This is however not the end of the matter. The question is whether the Applicant could have been convicted of other lesser cognate offences in relation to the murder which include: being an accessory after the fact of murder i.e. in the act of burning of the house where the deceased was and preventing the matter been reported to the police in time. Was there a conspiracy to murder? For the moment I cannot establish whether the Applicant would not have been sentenced to more than five years imprisonment. Being an accessory after the fact of murder carries a sentence of up to 7 years imprisonment under section 206 of the Penal Code Act. Conspiring to murder carries a penalty of up to 14 years under section 208 of the Penal Code Act.
The learned trial judge found that there was common intention to prosecute an unlawful purpose in conjunction with another. It may be irrelevant that the Applicant was a local leader namely a District Councillor with the mandate of the people and that she commanded authority over them. The Applicant's Counsel on the other hand criticised the judge for having found the common intention to prosecute an unlawful purpose in conjunction with others as far as the Applicant is concerned. The question is whether
the conclusion of the learned trial judge on common intention, which is the link to the Applicant in the murder of the deceased, is obviously wrong.
The learned trial judge relied on Uganda v Francis Gayira & Another [1994 - 1995] HCB 16 where it was held that common intention: "is inferred from the conduct, presence and actions of the accused of from the failure of the accused to dissociate himself or herself from the commission of the offence." The appeal will also determine whether the court erred in law to find that the Applicant who urged people to kill had the common intention to do so with those persons who actually participated in the murder and arson of the deceased and his property respectfully. This can go either way.
My conclusion is that even if the Applicants appeal succeeded in some material respects, it is very doubtful whether the Applicant would be completely discharged of having committed an offence given the role she played at the scene of the crime in allegedly urging people to commit the offence. It is also doubtful whether if she is found to have committed another offence, should be sentenced to less than three years imprisonment. She was convicted on 7th of June 2017 hardly a year ago.
Finally I have considered the Applicant's illness. The medical report is dated 20th of July 2017 hardly a month after she was convicted. It indicates that the Applicant is 73 years old and it is therefore proven that she is of advanced age. She was examined and the conclusion is that she is suffering from congestive cardiac failure secondary to enlarged cardiac disease for which her treatment is indicated in the report. She is also HIV- positive WHO stage II and she is on prophylaxis waiting to be started on ARV's. The second medical report is dated 26th of April 2018 and it indicates that she has bronchial asthma with frequent asthmatic attacks, hypertensive heart disease and advanced age. The medical report also indicates that she is on medication and prophylaxis together with ARVs.
Section 15 (3) (a) of the Trial on Indictment Act Cap 23 commits a person awaiting trial to be released on medical grounds upon certification of the Medical Superintendent. In this case the doctors report falls short of indicating in terms of the statutory provision whether the condition of the Applicant cannot be managed while she is in custody. For emphasis section 15 (3) (a) provides as follows: "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." Illness per se is therefore not a ground for release on bail except where it is certified that the condition cannot be adequately managed while in custody.
Finally I have considered the doctrine related to delays in hearing an appeal. In the case of Norman Anthony Paul Cullis, David John Nash the Court of Appeal (Criminal Division) reported in Criminal Appeal Cases (1968) page 162, the accused had been allowed on bail on the ground that, if the appeal succeeded, they would probably have served their sentences by the time when the appeal was heard and therefore it will in effect be abortive. This principle is not applicable to the Applicant in this case for reason that even if her appeal succeeds, it is very unlikely to succeed to the extent that she will be absolved of some other serious offence which would carry terms of imprisonment of 15 which she has only served 1 year.
In the premises, the Applicant's application for bail on the ground that she would have served her sentence by the time her appeal is heard is premature. I am not inclined to release her after only about one year in jail. There is no evidence that the appeal, whose memorandum has now been filed by 2nd May, 2018 will not be heard within a year. Let the hearing of the appeal be expedited.
Secondly, the ground of illness of the Applicant cannot be sustained in view of the fact that there is no positive certification by the Medical Officer of Prisons that the condition of the Applicant cannot be managed while she is in custody. The court cannot presume such facts but has to rely on the professional opinion of the Medical Officer who should accept responsibility for giving the correct status of the Applicant's health as prescribed by Section 15 (3) (a) of the Trial on Indictment Act.
In the premises, I find no merit in the Applicant's application for bail and I accordingly disallow it.
Ruling signed by me for delivery by the Registrar the 25th of May, 2018
Christopher Madrama Izama
Justice of Appeal
Ruling delivered in the presence of:
Deputy Registrar, Court of Appeal