THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CRIMINAL APPLICATION NO. 44 OF 2012
.
WA
LUBI GODFREY ------------------------------------------------------ APPLICANT
5
VERSUS
U
GANDA -------------------------------------------------------------------- RESPONDENT
C
ORAM: HON MR. JUSTICE KENNETH KAKURU, JA.
RULING
Th
is is an application for grant of bail pending appeal. It is brought by
10
way of Notice of Motion under Article 23(6) (a) of the Constitution,
Sec
tion 40 of the Criminal Procedure Code Act, Section 132 (4) of the
Tria
l on Indictments Act and Rule 6, 43 & 44 of the rules of this Court.
At
the hearing of this application the applicant was represented by Mr.
1
5 Asuman Nyonyintono and Mr. Fred Kakooza Principal State Attorney
first
appeared for the respondent. However Mr. Kakooza was not ready
to pr
oceed. He had no case file and applied for adjournment on that
acco
unt. I declined to grant the adjournment. Because this application
1
had
been before this Court previously on 10th January, 2013 and at that
time
Mr. Byansi who appeared for the respondent failed to proceed on
acc
ount that the DPP had been served late. The matter was stood over
by t
he presiding judge to allow him peruse the file; again he was unable
5
to proceed, in the afternoon. In the result the application was adjourned
sine
die. That was more eight months back. There is a possibility that
the
applicant could have been released on bail in January 2013. Eight
mon
ths later he is still in jail on account of inefficiency and neglect of the
DPP'
s office. Even if bail had been denied the applicant would have
10
been saved the trouble and the legal expenses and courts time would
have
been saved. The DPP has never bothered to file an affidavit in
reply i
n this case which was filed in November 2012.
This
kind of attitude by the DPP's office and specifically by individual
State
Attorneys is completely unacceptable at this Court. The conduct of
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both Mr. Byansi and more especially Mr. Kakooza is unprofessional and
unac
ceptable. It verges on neglect of duty and abuse of office. Am
direct
ing that a copy of this ruling be served on the person of the DPP
Hon.
Mike Chibita.
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On
21st day of August 2013, I heard and disposed of six applications for
bail p
ending appeal and none of them had an affidavit in reply filed by
the D
PP yet four of them were so incompetent that the Advocates simply
withdr
ew them.
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Be that as it may, Mr. Nyonyintono learned counsel for the applicant
submitt
ed that the applicant had sufficient grounds upon which court
ought
to release him on bail pending appeal. He submitted that
excep
tional circumstances exist upon which the applicant ought to be
grant
ed bail.
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I have listened to the arguments of learned counsel for the applicant and
the resp
onse by learned counsel for the respondent. I have studied the
Notice
of Motion and the accompanying affidavit. I also studied carefully
the an
nextures to the affidavit. Neither counsel filed a list of authorities.
Howev
er Mr. Nyonyintono referred me to the case of Arvind Patel Vs
15
Uganda from the bar.
The N
otice of Motion sets out eight grounds, a close look at them
reveals
that only 4 are relevant that is paragraphs 3, 4, 5, and 6 which
can be s
ummarised as follows:-
3
1.That the applicant is sickly and has a history of asthma that is
detoriating.
2. That he has filed a Notice of Appeal in this Court.
3
. That he is a first offender and the offence he was convicted of
5
does not involve personal violence.
4. That he, when he was previously released on bail he complied with
bail conditions.
The affidavit in support of the Notice of Motion expounds in the above
grounds.
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The applicant is now 54 years old, as he was born on 30th April 1959.
His driving permit which was availed to court is proof. He was convicted
by the High Court on 25
th May 2012 for two counts of Causing Financial
Loss
CIS 20(1) of the Anti-Corruption Act and Conspiracy to defraud CIS
309 of the Penal Code Act
.
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He was sentenced to six years in jail for each of the two counts of
causing Financial Loss and one year for Conspiracy to Defraud the
4
sent
ences are running concurrently and I was availed a copy of the
Judg
ement.
On 6
th June 2012 the applicant lodged at this Court a Notice of Appeal;
agai
nst both sentence and conviction and filed a memorandum of appeal
5
on 19th June 2012 copies of both documents were also availed to me.
The j
urisdiction of this court to grant bail pending appeal is not in
dispu
te. It is derived from section 132(4) of the Trial on Indictments Act
and
Section 40 of the Criminal Procedure Code Act.
Since
jurisdiction is not in issue I find no reason to reproduce the above
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law here. Suffice it to say that power to grant bail is discretionary. It is up
to thi
s court to grant or not to grant bail. But discretion cannot be granted
in a v
acuum, neither can it be exercised arbitrary or subjectively. The
discre
tionary power of court must be exercised sparingly, objectively and
most i
mportantly judiciously.
15
The law relating to bail pending appeal is provided for under Section 132
(4) of
the Trial of Indictments Act, so this section grants jurisdiction to
this co
urt to grant bail. Similarly Section 40(2) of the Criminal Procedure
Code
Act does the same.
5
However both of these above Sections must be read together with
Section 14 and 15 of the Trial of Indictments Act which relate to
conditions for grant of bail
. Although Section 15 of the Trial of
Indictments Act relates to release of bail at the High Court, it is my view
5
that it sets the bench mark. It sets out the minimum conditions required
for release of accused on bail pending or during trial
. At this stage the
accused is shielded by the constitutional right of the presumption of
innocence. He is not yet a convict
. It follows therefore that upon
conviction the applicant has to satisfy the conditions set out under
10
section 15 as the bear minimum.
However due to the absence or suspension of the presumption of
innocence, the applicant has a much greater burden of proof at this
stage
.
Accordingly this court must apply the requirements of Section 15 of the
15
Trial of Indictments Act and in addition and NOT in alternative also follow
the guidelines set out in case law.
In this regard the Supreme Court has set guidelines to be read and
applied together with Section 15 of the Trial of Indictments Act
.
6
Sec
tion 15 of the Trial of Indictments Act is to the effect that application
for b
ail at the High Court must prove to the satisfaction of Court that
exce
ptional circumstances exist justifying his or her release on bail.
It de
fines exceptional circumstances to mean any of the following:_
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1. 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 whi
le the
accused is in custody.
(b) A certificate of no objection signed by the
DPP or
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(c) The infancy or advanced age of the accused.
In ad
dition to the above court must also consider whether or not the
accuse
d is likely to abscond and in doing so High Court is required to
take in
to account the following factors under Section 15 (4) of the Trial of
Indict
ments Act.
15
a) Whether the accused has a fixed place of abode within the
j
urisdiction of court or is ordinarily resident outside Uganda.
7
b) Whether the accused has sound securities within the jurisdiction to
undertake that the accused shall comply with the conditions of his
or her bail;
c) Whether the accused has on previous occasion when released on
5
bail failed to comply with the conditions of his or her bail; and
d) Whether there are other charges pending against the accused.
In addition to the above court is required to take into account the
guidelines set out in
(Supreme Court Criminal Application No. 1 of 2003)
Arvind Patel Vs Uganda. These are:-
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a) The character of the applicant.
b) Whether he or she is a first offender or not
c) Whether the crime of which the applicant was convicted involved
personal violence.
d) Whether the applicant has complied with bail conditions granted
15
after the applicants conviction and during the pendency of the
appeal
.
8
As s
tated in the Arvind Patel case (supra) all these conditions need not
be p
resent in every case. A combination of two or more criteria may be
suffici
ent provided in my view exceptional circumstances have been
proved
to exist.
5
In this case the applicant has proved that he is 54 years old. In Uganda
a pers
on of 50 years and above is by law considered to be of advance
age.
See Andrew Adimola Vs Uganda (Criminal Miscellaneous
Appli
cation NO.9 of
1992), Francis Ogwang Vs Uganda, (Criminal
Appli
cation No.
25 of 2003) and Vicent Nyanzi vs Uganda (Criminal
10
Application No.
7 of 2001), are High Court decisions which have been
cited
with approval in this court in (Constitutional Application No. 25 of
2012)
Lt. Colonel John Kaye Vs Attorney General. I have no reason to
differ
.
In th
is regard therefore the applicant has proved exceptional
15
circumstances. However, since this is bail pending appeal, he has also
to satisfy c
ourt that he will not abscond when granted bail. He has
satisf
ied court that he is a married man with a wife and six children. That
9
he has a fixed place of abode, at Budumbuli West, Bugembe Town
Council, Jinja District
.
Although no specific proof has been provided to confirm he is of good
character, no evidence has been brought to the contrary either. Am
5
inclined to give him the benefit of doubt.
From the judgment of the High Court, I have ascertained that the
applicant is a first offender with no previous criminal record.
The offence he was convicted of did not involve personal violence. I
have noted that the memorandum of appeal was filed promptly after the
10
judgment on 19th June 2012 and i have not found it frivolous and being a
first appeal it has some chance of success. Am unable to determine
anything more than that is this regard.
The applicant complied with bail terms when he was first released on
bail
. This evidence is on record.
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The applicant was sentenced to six years imprisonment; on 29th May
2012, he has already served more than one year of that sentence. It has
taken more than one year from the date of filing the Notice of Appeal in
this Court to the hearing of this application. It is not far fetched to
10
sug
gest that it may take another 12 months or more before the appeal is
heard a
nd determined. Even though new Justices of Appeal have
appo
inted, there are many pending appeals and applications before this
court,
as a result the applicant may have served a substantial part of his
5
sentence before the appeal is determined. In the event that his appeal is
succe
ssful, he would have suffered irreparable loss and injustice. If on
the oth
er hand he is unsuccessful he will be required to go back to jail
and c
omplete his sentence.
The m
ost important thing therefore is to ensure that he does not
10
abscond and he turns up for his appeal. He has presented a number of
suret
ies to ensure this. I have found them substantial. The respondent
has h
ad time to vet them, and has no objection.
I acco
rdingly allow this application. The applicant is hereby admitted to
15
bail pending appeal on the following terms:-
1.
He shall deposit Shs. 10.000.000/= as cash bail in this Court
before release
.
11
L
.. t:acn or rus sureties snail execute a bond of 20.000.000 NOT
cash.
3
. He shall report to this Court every 1st Monday of each month
beginning 2
nd September, 2013.
5
4. The conditions shall not be varied by the Registrar.
Befo
re I take leave of this matter I would like to observe as follows:-
That the High Court of Uganda has resident judges spread allo
ver
the country
. In addition there are regular High Court circuits held
allover the country on a regular basis
. On the other hand except
10
on very few occasions this court sits almost exclusively at
Kampala
.
Almost all appeals from the High Court have to be filed a
t the
Registry of this Court. Almost all applications for bail pendi
ng
appeal are filed, heard and determined by the Court of Appea
l at
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Kampala.
12
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5
i
;
Successful applicants are also more often than not required to
renew their bail at Kampala. Although this is expensive and
inconvenient. It is none the less desirable.
It seems in my view that the High Court has powers to grant bail
pending appeal to the Court of Appeal. For reasons I have not
ascertained these applications have only been filed at this court.
Section 132 (4)
of the Trial of Indictments Act provides as follows:-
"
Except in case where the appel/ant has been sentenced to
death
, a judge of the High court, or the Court of Appeal may
10
in his or her own 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
"
Am therefore of the considered view that a High court judge has
jurisdiction to hear and determine applications such as this one under
15
the above law and they should freely do so.
Dated at Kampala this 26th day of August 2013
Kenneth Kakuru
Justice of appeal
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