Kitaka v Uganda (Miscellaneous Application 8 of 2019) [2019] UGSC 100 (20 November 2019)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

MISCELLANEOUS APPLICATION NO: 08 OF 2019 BETWEEN

KITAKA ROBERT NSUBUGA:::::::::::::::APPLICANT

VERSUS

::::::::::::::::::::::::::::::::::::: UGANDA

BEFORE: HON. JUSTICE PAUL K MUGAMBA

RULING

The applicant applies for bail under Rules $6(2)$ (a), 42 and 43 of the Rules of this Court. The application, by Notice of Motion, is supported by an affidavit deponed by the applicant. The grounds in support of the application appear in the Notice of Motion as follows:

- 1. That the Applicant was charged with the offence of murder C/S 188 and 189 of the Penal Code Act by the High Court of Uganda sitting at Nakawa which convicted and sentenced him to imprisonment of 13 years. - 2. That the Applicant then lodged an appeal to the Court of Appeal which was heard and dismissed on 13^th September $2019.$

- 3. That the Applicant being dissatisfied with the decision of the Court of Appeal upholding his conviction and sentence filed a Notice of Appeal and the Memorandum of Appeal dated l6'h September 20lg and 3"i October 2Ol9 respectively - 4. That the Appeal that has been filed by the Applicant is not frivolous and has a high possibility of success. - 5. That there is a possibility of substantial delay by the Supreme Court to hear and determine the Applicant Criminal AppealNo. 40 of 2019. - 6. That the Applicant's state of Health requires specialized medical attention which he is unable to access while serving his custodial sentence in prison. - 7. That the Applicant will not abscond from attending Court once he is granted bail pending determination of the Appellant's Criminal Appeal No. 40 of 2019. - 8. That the Applicant has substantial sureties with permanent places of abode in the Republic of Uganda who are ready to produce the applicant to court whenever he is needed by court. - 9. That the Applicant is ready to abide by the terms which this court will impose upon him.

l0.lt is the interest of substantive justice that the Application be allowed.

At the hearing the appellant was represented by Mr Innocent Wanambugo while Mr Peter Mugisha, State Attomey, appeared for the respondent.

The background to this application can be gleaned from paragraphs 2,3 and 4 of the affidavit in support. Essentially the averment shows that the applicant was tried and convicted of murder, contrary to sections 188 and 189 of the Penal Code Act by the High Court sitting at Nakawa. Consequently he was sentenced to l3 years imprisonment. He appealed the decision in the Court of Appeal but that appeal was dismissed on l3'h September 2019. He has since appealed to this Court against the decision of the Court of Appeal. The appeal to this Court is Criminal Appeal No. 40 of 2019.

In his submission counsel for the applicant highlighted what was contained in the pleadings already on record. He stated that the application was made in order to secure bail for the applicant pending the hearing and determination of Criminal Appeal No. 40 of 2019 already lodged in this court. He cited Arvind Patel v Poge 3 of 11

Uganda, Criminal Application No. 1 of 2003 and stated that this application meets the conditions stated there. He added that it is not necessary that all the conditions should be present in every case but that a combination of two or more may be sufficient, saying that each case must be decided on its facts and circumstances. He stated that the applicant had no conviction prior to the one he is appealing and that he is a businessman with a family of six children. He said that the appeal is not frivolous and that the two appended grounds of appeal themselves should show that it has a reasonable possibility of success. Counsel submitted that given the backlog of cases in this court there would be delay in hearing and determining Crirninal AppealNo. 40 of 2019 aforementioned. He added that because the appeal came at the rear end as number 40 it would be attended to much later given that cases were attended to following their serial precedence. He argued that a criminal session had just been concluded and it would be long before another was held.

Another ground for this application concerns the health status of the applicant as related to by the letter of the Acting Medical Superintendent, Murchison Bay Hospital, Luzira. The Applicant,

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said to be 40 years old, is stated to suffer from hypertensive heart disease, cataract of the right eye with chronic conjunctivitis, chronic scalp ulcer due to acid burns, allergic bronchitis (with asthmatic components) as well as post traumatic stress disorder, a syndrome attributed to acid burns. The letter concludes that allergic bronchitis (with asthmatic conrponents) is a chronic health condition for which prison conditions are unfavourable and that owing to the complexity of the health conditions of the applicant he requires better heelth care. Counsel argued that the applicant cannot get better treatment while he is incarcerated at Luzira but that if risk to his health is to be avoided he would need specialized medical attention'

Counsel submitted that in considering this application court should presume the applicant to be innocent and that he enjoys that right enshrined under Article 28(3)(a) of the Constitution. He said there was a plathora of authority on this. Finally counsel submitted that there was no danger of the applicant absconding given that he has a perrnanent place of abode and that the five sureties presented are substantial.

In response the learned State Attorney stood opposing the apptication on the ground that it does not satisfy exceptional circurnstances for grant of bail pending appeal. He relied on an application sworn on behalf of the respondent by Ms Joanita Tumwikirize. He stated that the applicant is not law abiding because he is already ^a convict and that no exceptional circumstances were created merely by stating in the applicatron that the applicant had a family and was going through hardship. He cited a Kenya Court of Appeal case, Daniel Dominic Karania vs Republic, Criminal Application NAI 14 of ¹⁹⁸⁶ in support. Regarding the prospects of the appeal before this court counsel argued that that cannot be determined on the basis of the memorandum of appeal alone. In this respect he cited ^a decision by this court in , Criminal Application No. 4 of 2017. Responding to the applicant's apprehension that there was a likelihood of substantial delay in hearing the appeal given the volume of work at the Supreme Court, the learned State Attorney said such fears were speculative because this court has given no cause to that effect. He said that to the contrary timely hearing of the appeal stood better prospects since the memorandum of appeal had already been filed. The learned State Attomey also referred to

Pdge 6 of 71 the health prospects of the applicant. He said the applicant's condition had been contained for more than 8 years of incarceration. He said there was nothing to support that his condition was beyond the management of the prison authorities. He said that in order for the applicant to be released on health grounds under exceptional circumstances mentioned under section l5(3)(a) of the Trial on Indictments Act the certified medical report should indicate that the prisons authorities are incapable of managing the applicant's urgent medical needs. He said that what the report states is that the applicant requires better health care but not that the prison authorities are incapable of managing his situation. Referring to Article 28(3) (a) of the Constitution and relating to the presumption of innocence in favour of the applicant the learned State Attomey said the provision cannot be invoked by the applicant since he has already been convicted and had failed in his first appeal against conviction. It was the fear of the respondent that once released the appellant would abscond. He said the applicant had a long period to serve on his sentence yet. Finally counsel for the respondent submitted that the applicant's place of fixed abode was dubious as the features on the letter tendered from the chairman as confirmation of the same varied in some salient

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features with that earlier proffered to the Court of Appeal for the same purpose.

The respondent prayed for the dismissal of the application lacking merit. AS

In rejoinder counsel for the applicant reiterated his earlier submissions and prayer adding that the applicant had been incarcerated for 3 years and not the 8 years alleged. He stated that the longer the period the person had remaining to serve in custody the greater the temptation to abscond once granted bail.

I have heard the respective submissions and looked at the pleadings. I have considered also the various authorities relating to this application. It is in view of all the above I proceed to deal with the present application.

Needless to say the application is brought primarily under Rule 6(2)(a) of the Rules of this court which relevantly reads:

'(2) Suhject to subrule (1) of this rule, the institution of an appeal shall not operote to suspend any sentence or to stay execution, but the court maY'

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- (a) in any criminal proceedings where notice of appeal has been given in accordonce wtth rules 56 ond 57 of these Rules, order that the appellant be released on bail -----------pending the determinution of the appeal; - (b) ,

It was submitted on behalf of the applicant that his character stood him in good stead for release on bail and in this respect counsel submitted that prior to the present conviction the applicant had no other conviction and that he was a bus;nessman with a family and contributed positively to his family and to the community. Respectfully I do not find those attributes material to this application. Suffice to say he is a convict and that release on bail would entail certain risks. Similarly his enterprise as ^a businessman and bread winner does not weigh heavy enough to attract release on bail given that his family has managed to get by in the past three years.

It is contended also that the applicant's appeal is not frivolous and has a reasonable chance of success. To this effect ^a memorandum of appeal with two grounds was annexed to the

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affidavit in support of this application. There is however no record available to me concerning what transpired in the Court of Appeal. In the circumstances it is not possible for me to determine the chances of success of the prospected appeal'

Counsel for the applicant submitted that there is likely to be delay in hearing the appeal lodged in this court by the applicant given that this court has just completed a criminal session and has a backlog of cases. He went on to state that given that the appeal is a recent one it would take time before it was finally heard given that earlier ones are given priority of hearing. No basrs was laid for this apprehension. I find it speculative.

Another ground for making this application is the health condition of the applicant. I have related to the contents of the tetter from the Acting Medical Superintendent Murchison Bay Prison, Luzira. He stated in no ambiguous terms that allergic bronchitis (with asthmatic components) is a chronic health condition for which prison conditions are unfavourable and that owing to the complexity of the health condition of the prisoner he requires better health care. Given these circumstances it is incumbent upon the prison authorities to institute favourable

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conditions for the applicant's welfare within the prison. I agree with the learned State Attorney that it is nowhere shown that it is beyond the capacity of the prison authorities to put in place suitable conditions for the applicants welfare while he is in their custody.

I have found no merit in the grounds advanced for this application. Besides this is a matter in which the applicant was convicted on the charge of murder, which involved personal violence. Personal violence is not favourable for prospects for release on bail. See Arvind Patel v Uganda (Supra).

For the reasons shown above I decline to grant this application. It is dismissed accordingly.

HON. JUSTICE PAUL K. MUGAMBA JUSTICE OF THE SUPREME COURT

Rubing read and delivered in open<br>Out in the preferror of the above<br>Throwent Wangmong of for appolicant and<br>absence of Peter Minghla State Attorney SHILL 2011/2019