In The Case of Bamutura Henry V Uganda Miscellaneous Application No.19 Of 2019, In The Supreme Court of Uganda at Kampala.
CORAM; HON JUSTICE LILLIAN TIBATEMWA, Judgement delivered on the 16th day of March, 2020.
This was an Application for bail pending a second Appeal. The Appellant in this case was sentenced to imprisonment in the lower Courts for causing financial loss. The Applicant filed a notice of Appeal and later filed an Application for bail pending Appeal.
The court in granting bail laid down a number of principles which ought to guide the court when granting bail pending Appeal.
The Justice of the Supreme Court stated that the presumption of innocence when hearing an Application to grant bail is already rebutted by the fact that the two lower Courts have already convicted the Appellant and conviction is followed by punishment. Therefore, restricting the Applicant’s freedom of movement is one of the terms of the punishment. Therefore, in order to grant freedom to such a person whose fundamental freedom has been lost by the conviction of two lower Courts, there must exist some unusual and exceptional circumstance.
What is exceptional under these circumstances is something that will justify the Court to overlook the order for his imprisonment and make a counter order that he be released until at least his Appeal is determined. The Justice also stated that the threshold for unusual and exceptional must be higher during a second Appeal, in the Justice’ words an exception rather than the norm.
In regards to substantial delay in disposing the Appeal as a ground to get bail, the Justice stated that this in itself may be an unusual circumstance however it ought not be speculative but factual.
On the ground of the Appeal having a reasonable possibility of success, this requires utmost discretion to the point that you avoid going into the merits of the case when considering the possibility of success.
In conclusion, the Justice allowed the Application and granted the Applicant bail basing on the fact that the appeal had grounds that were arguable and thus the Appeal had a reasonable possibility of success. The Appeal raised questions of interpretation of the law.