The Application was brought under article 23(6) of the constitution and Section 40 (2) of the criminal procedure code act, Section 132 (4) of the Trial on Indictments Act and rule 6, 2 (a) of the Judicature (Court of Appeal Rules) Directions Sections 1 13-10. The application seeking orders granting the applicant bail pending the hearing and determination of his appeal No 174 of 2017 before this court.
The applicant is a businessman managing, an investment in real estate and money lending in East Africa. He was arrested and charged with offences of Money Laundering and Conspiracy to commit a felony. He was convicted and sentenced to 12 years and five years respectively and ordered by court to refund 500,000US$. The applicant is a resident of Bunga, Makindye East Constituency, Kampala district, a single father of two school going children. He was arrested, kept in safe houses and remanded for two years. He contended that court backlog will delay the hearing of his appeal and invited court to rely on Arvind Patel V Uganda CA NO 01 of 2013a case heard in the Supreme Court at Mengo. This case lays down the principles to be followed by courts in granting or denying bail. He also urged court, to consider the case of Sserunkuma Edrisa V Uganda MA No 152 of 2015. He presented three substantial sureties which court approved of, and his willingness to deposit the land title deed as directed by court. The defense in opposing the application contended that no exceptional circumstances were proved by the applicant warranting the grant of bail. Defense further disputed the torture claims by the applicant as the evidence did not show any connection to the detention. Furthermore, council for the defense argued that the appeal had no chances of success and that the court had a record of handling the matters before it fast instance. Further evidence was adduced by the applicant to the effect that the convict didn’t sign but thumb printed the statement because he was tortured and the record of admission by A4 acknowledged that “to some extent, the constitutional rights of the accused” were violated.
Court held that
- Power to grant bail is discretionary but must be exercised judiciously as was held in Walubiri Godfrey V Uganda CACA NO 44 of 2012.
- That the right to bail is enshrined in Article 23(6) of the constitution and that the law relating to bail pending appeal is found in S132 (4) of the Trial on Indictment Act and S40 (2) of the Criminal Procedure Code Act, Cap 116.
- The case of Arvind Patel V Uganda sets out the conditions for grant of bail, pending appeal as;
- The character of the applicant
- Whether he or she is a first time offender or not
- Whether the crime of which the applicant was convicted involved personal violence
- Whether the application is not frivolous and has a reasonable possibility of success
- The substantial delay in the determination of the appeal
- Whether the applicant has complied with the bail conditions granted after the applicant’s conviction and during the dependency of appeal if any.
Justice Kavuma confirmed the meeting of the requirements in Arvind Patel and took judicial notice of the backlog in the court and the convict’s subjection to torture and the welfare of two school-going children and granted bail.