Tumuzigu v Uganda (Criminal Application 55 of 2024) [2025] UGHC 2 (13 January 2025)


THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA 4 HCT-05-CR-CM-0055-2024 (ARISING FROM HIGH COURT CRIMINAL APPEAL NO.13 OF 2024) (ARISING FROM KIRUHURA CHIEF MAGISTRATE'S CRIMINAL CASE NO.0026 OF 2021) 8 TUMUZIGU MOSES ------------------------------------- APPLICANT VERSUS

12 UGANDA ------------------------------------------------ RESPONDENT

BEFORE: Hon. Justice Nshimye Allan Paul M.

16 RULING ON AN APPLICATION FOR BAIL PENDING APPEAL

BACKGROUND

- The Applicant was on 4 th March, 2024 convicted by HW Seruwo Benjamin the 20 Chief Magistrate at the Chief Magistrates Court of Kiruhura at Kiruhura, of the offence of stealing cattle contrary to Section 254(1) of the Penal Code Act Cap 120 (now Section 237(1) of the Penal Code Act Cap 128) and was sentenced to 3 years imprisonment and to compensate the victim with UGX20,000,000/= 24 only after serving the prison sentence. The Applicant being dissatisfied with both conviction and sentence, appealed to the High Court through filing a memorandum of appeal on 18th June, 2024 vide HCT Criminal Appeal No.13 of 2024. The applicant then filed this application for bail pending appeal on 18th - 28 June, 2024.

APPLICATION

This application is brought by way of Notice of Motion under Section 40 of 32 Criminal Procedure Code Act and Rule 2 of the Judicature (Criminal Procedure) (Applications) Rules SI 13-8.

GROUNDS

The grounds of the application as stated in the notice of motion are;

- 4 1. The Applicant is aggrieved by and dissatisfied with the decision of the lower Court and has appealed to this Court. - 2. The pending appeal has high chances of success. - 3. The appeal may take time to be disposed of given the fact that the record - 8 has to be prepared, and the memorandum of appeal has got to be served together with the certified record onto the State, the appeal has got to be fixed for hearing, argued and a judgment made which cannot be a one day's or one week's or even one month's event given the tight schedule of the - 12 High Court. - 4. In the event that the appeal succeeds after the Applicant has served a substantial part of his sentence, he will have suffered irreparable loss and damage. - 16 5. The Applicant is prepared to prosecute the appeal, has substantial sureties ready to guarantee his presence whenever required by this Court and will not abscond, and is prepared to go back to jail and serve the sentence imposed by the lower Court should this Court find that he was properly - 20 convicted and sentenced. - 6. The Applicant is a responsible citizen of Uganda, who is still pursuing his studies and he is the sole bread winner who was working for his school fees at the time of arrest and subsequent conviction. - 24 7. The Applicant has a permanent place of abode within this Honourable Court's jurisdiction. - 8. That it is fair, reasonable and in the interest of justice that this application be granted.

REPRESENTATION

The Applicant was represented by Advocate Vicent Turyahabwe from M/s Asingwire and Kakuru Advocates, while the Respondent was represented by 32 State Attorney Jacob Nahurira.

SUBMISSIONS

This Court gave schedules for both parties to file written submissions, but the Respondent did not comply. Nevertheless, Court shall proceed to make a ruling.

4 Applicant's submissions

Counsel submitted that the Applicant is a first-time offender, that the Applicant was not involved in any personal violence since he was convicted basing on circumstantial evidence of cow ear tugs found in his room and that his appeal is

- 8 not frivolous. Counsel argued that there is a possibility of substantial delay in the determination of the appeal given that it has never been fixed for hearing by Court and cited BUHANGUZI BENEDICTO VS UGANDA CRIMINAL APPLICATION No.85 of 2023 where this Court considered the likelihood of - 12 delay in disposing of the appeal to grant the application for bail pending appeal. It was further submitted that the Applicant complied with bail terms set by the trial Court when he was granted bail pending hearing, that he has a fixed permanent place of abode and that he has two credible sureties. Counsel - 16 cited OBITA CHARLES VS UGANDA CRIMINAL MISC APPLICATION No.68 of 2023 for the holding that proof of exceptional circumstances is not mandatory since Court has the discretion to grant bail even where none is proved. That the Applicant is a student who worked at the complainant's farm to raise school 20 fees. Counsel prayed for the application to be granted.

DETERMINATION

It is trite that the High Court has discretion to entertain and determine an 24 application for bail pending appeal as is stipulated in SECTION 40(2) OF THE CRIMINAL PROCEDURE CODE ACT CAP 122, which provides that:

*"The appellate court may, if it sees fit, admit an appellant to bail* 28 *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."*

- 32 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;

- b) Whether he/she is a first offender or not; - c) Whether the offence of which the applicant was convicted involved personal violence. - 4 d) The appeal is not frivolous and has a reasonable possibility of success; - 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 8 any).

The Learned Justice of the Supreme Court also opined that it is not necessary that all the conditions be present in every case, concluding that a combination 12 of two or more in the criteria may be sufficient.

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 16 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, then concluded that the Arvind Patel case had been wrongly decided. The position adopted by Her 20 Lordship was addressed by a panel of three Justices of the Supreme Court when handling a reference in the MAGOMBE JOSEPH JOSHUA VS UGANDA, SUPREME COURT CRIMINAL REFERENCE 13 OF 2020 case. The panel of Justices adopted the holding in NAKIWUGE RACHEAL MULEKE VS. UGANDA, SUPREME 24 COURT CRIMINAL REFERENCE NO. 12 OF 2O20 case, where another panel of

- 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: - 28 *"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.* 32 *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 then concluded that the Arvind Patel vs Uganda case was rightly decided, and they did uphold it as the proper position of the law. These Supreme Court references¹ therefore confirmed that 4 the conditions that required to be proved 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. - 8 In relation to the foregoing, I wish to emphasise that bail pending appeal is granted at the discretion of Court which discretion must be exercised judiciously with each case being determined on its own merits. - 12 I must also emphasize that after conviction, the legal status of an offender changes since the Applicant is no longer wholly shielded by the presumption of innocence espoused in Article 28(3) of the Constitution of the Republic of Uganda 1995.

In MAGOMBE VS UGANDA, SUPREME COURT CRIMINAL REFERENCE 13 OF 2020 the Supreme Court held that:

20 "*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 shielded by the presumption of innocence espoused in* 24 *Article28 (3) of the Constitution of Uganda."*

The Court now must interrogate whether the Applicant has any exceptional circumstances as a required condition for bail pending appeal as was stated in

28 MAGOMBE VS UGANDA SUPREME COURT CRIMINAL REFERENCE 13 OF 2020.

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.

SECTION 16(3) OF THE TRIAL ON INDICTMENTS ACT CAP 25 guides us on what amounts to exceptional circumstances in the following way:

*"In this section, "exceptional circumstances" means any of the* 4 *following—*

> *(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;*

8 *(b) a certificate of no objection signed by the Director of Public Prosecutions; or*

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

12 The Applicant for bail pending appeal therefore bears the burden of pleading and proving that he or she has exceptional and unusual circumstance for the grant of bail. In MAGOMBE VS UGANDA, SUPREME COURT CRIMINAL REFERENCE 13 OF 2020 the Supreme Court also held that:

*"We emphasize that conditions for bail pending appeal are slightly higher than those required for bail pending trial. The applicant in an application for bail pending appeal has to plead and prove exceptional and unusual* 20 *circumstance for the grant of his/her application"*

I note from the decision in ARVIND PATEL VS UGANDA SUPREME COURT CRIMINAL APPLICATION NO. 1 OF 2003 that chance of success of the appeal is one of the considerations, that a court handling an application for bail pending 24 appeal ought to consider. It is therefore pertinent that an applicant for bail pending appeal makes the notice of appeal, memorandum of appeal, and lower court judgment available to the appellate court handling the application for bail pending appeal because without them it would be difficult to gauge the 28 success of his or her appeal, or contemplate if its frivolous. In this application, the judgment of HW Seruwo Benjamin delivered on 4th March 2024 was attached to his evidence. The Applicant has fulfilled the requirement of attaching the judgment to aid court in gauging the possibility of success of the 32 appeal, and in so doing also contemplate if the appeal is frivolous or not.

The applicant has argued that it may take time to determine the appeal due to this Court's tight schedule and that in an instance where the appeal is heard and determined in the Applicant's favour, he would have served his sentence fully and would not be compensated. I am of the opinion that convicts that have been sentenced to two years imprisonment or less ought to be considered

more favourably than those who have been sentenced to more than two years, $\overline{4}$ because those that are sentenced to two years or less stand a real risk of serving their sentence before their appeal is heard and determined.

I note though in this case the applicant was sentenced to three years imprisonment, making it unlikely to serve the entire sentence before 8 determination of the appeal.

The exceptional circumstance advanced by the applicant in paragraph 16 of the affidavit in support is that he suffers from 'nephrotic syndrome' which cannot $12$ be managed in a prison facility. I nonetheless note that the Applicant has not attached any communication from the prison authorities or prion sick bay confirming that they checked him and indeed he is suffering from the said illness. I would believe that if he is suffering from a any illness, the prisons 16 authorities would have to be informed, so that they know how to best manage him.

- The prisons authorities as custodians of the prisoner are best suited to certify 20 to court that he is indeed sick and the nature of sickness. I note that the applicant has not attached any communication from prisons authorities or their sick bay confirming that he is sick. I therefore find that the applicant has not - proved the exceptional circumstance of sickness, that he advanced for court's $\overline{24}$ consideration.

I find that a case has not been made out for the grant of bail pending appeal. I order that his appeal be fixed for quick determination. 28

In conclusion, I order that this application is dismissed.

nurate 3

NSHIMYE ALLAN PAUL M. JUDGE 13.01.2025