Wakilii

Muhindo Swalleh v Uganda (Misc.Criminal Application No. 145 of 2019)

Court of Appeal · [2020] UGCA 63 · 2020 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for bail pending the hearing and determination of a criminal appeal
Decision
Application for bail pending appeal dismissed; applicant remains in custody

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Holding

The applicant, convicted of murder, attempted murder and aggravated robbery, sought bail pending his appeal, citing long incarceration, an allegedly lost trial court file, and family hardship. The court held that an applicant for bail pending appeal no longer enjoys the presumption of innocence and must establish exceptional circumstances or unusual reasons. Long lawful imprisonment, family hardship, a fixed place of abode and the presentation of sureties are not, on their own, exceptional. The applicant did not prove the trial records were irretrievably lost. Finding no exceptional circumstances, the court declined to exercise its discretion and dismissed the application.

Facts

The applicant was charged in the High Court at Kasese with murder, attempted murder and aggravated robbery under the Penal Code Act. He was convicted and sentenced to terms of imprisonment. He filed an appeal (Criminal Appeal No. 809 of 2014) which remained pending. While awaiting determination of that appeal, he applied for bail pending appeal. He argued that he had spent a long period in prison without his appeal being heard, that the trial court file had disappeared so the appeal could not be fixed, and that his school-going children, wife and parents were deprived of his support and comfort. He produced three sureties, including his father, mother and a neighbour, all residents of Kasese District. The respondent opposed the application, contending that none of the grounds amounted to exceptional circumstances. The applicant offered no proof, and neither court had confirmed, that the trial records were irretrievably lost.

Issues

  1. Whether the applicant established exceptional circumstances and/or unusual reasons justifying release on bail pending the determination of his criminal appeal.

Orders

  • The application for bail pending appeal is dismissed.

Key headnotes

Bail Pending Appeal — Loss of Presumption of Innocence
An applicant for bail pending appeal is no longer shielded by the presumption of innocence under Article 28 of the Constitution, having been convicted; bail may only be granted on the basis of exceptional circumstances and/or unusual reasons.
Bail Pending Appeal — What Does Not Constitute Exceptional Circumstances
Long imprisonment while serving a lawful sentence, family hardship from the applicant's absence, a fixed place of abode, and the presentation of sureties are not, on their own, exceptional circumstances or unusual reasons justifying release on bail pending appeal.
Bail Pending Appeal — Burden of Proof
An applicant alleging that trial court records are irretrievably lost must prove that fact to the satisfaction of the court; an unsubstantiated assertion, uncorroborated by the courts concerned, does not establish an exceptional circumstance.

Legislation cited (11)

  • Constitution of Uganda Article 23(6)(a)
  • Constitution of Uganda Article 28(1)
  • Trial on Indictments Act Cap 23 s.132(4)
  • Criminal Procedure Code Act Cap 116 s.40(2)
  • Judicature (Court of Appeal Rules) Directions Rule 43
  • Judicature (Court of Appeal Rules) Directions Rule 44
  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.204
  • Penal Code Act s.285
  • Penal Code Act s.286(2)

Cases cited (2)

  • Sande Pande Ndimwibo v Uganda (Criminal Miscellaneous Application No. 241 of 2014)
  • Kitaka Robert v Uganda (Criminal Miscellaneous Application No. 69 of 2018)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.