Wakilii

Hon. Ssewanyana and Another v Uganda (Criminal Appeal No. 294 of 2021)

Court of Appeal · [2022] UGCA 181 · 2022 Preliminary Objection Upheld — Appeal Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from a High Court ruling declining to grant bail, met by a preliminary objection on jurisdiction
Decision
Appeal struck out as incompetent for want of jurisdiction; matter directed to be placed before the Principal Judge for expeditious trial

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal upheld a preliminary objection to its jurisdiction. An appeal is a creature of statute, and appellate jurisdiction springs only from statute. Sections 132 and 133 of the Trial on Indictment Act and sections 34, 35 and 36 of the Criminal Procedure Code Act confer a right of appeal only from convictions, sentences, acquittals, dismissals, and expressly provided-for orders such as special findings. No statute confers a right of appeal against a refusal of bail. Section 16 of the Human Rights (Enforcement) Act 2019 applies only to applications alleging infringement of fundamental rights, not ordinary bail applications. The Court therefore lacked jurisdiction and struck out the appeal as incompetent.

Facts

The appellants, Members of Parliament, were jointly charged with murder contrary to sections 188 and 189 of the Penal Code Act. They applied for bail in the High Court at Masaka. By a ruling dated 25 October 2021, the trial Judge declined bail, being unsatisfied that the appellants would not interfere with investigations and witnesses or that they would not abscond. The appellants appealed to the Court of Appeal on seven grounds challenging the exercise of the Judge's discretion. Before the merits could be heard, the State raised a preliminary objection that the Court of Appeal lacked jurisdiction because an appeal is a creature of statute and no statute provides a right of appeal from a bail refusal. The appellants contended that bail was a special proceeding for enforcement of fundamental rights, appealable under the Human Rights (Enforcement) Act 2019 and other provisions. The facts underlying the objection were not in dispute.

Issues

  1. Whether the Court of Appeal has jurisdiction to hear an appeal from a decision of the High Court declining to grant bail pending trial.
  2. Whether a decision declining bail constitutes a special finding or other order from which an appeal lies under the Trial on Indictment Act or Criminal Procedure Code Act.
  3. Whether section 16 of the Human Rights (Enforcement) Act 2019 confers a right of appeal against a refusal of bail.

Orders

  • The preliminary objection to the appeal is sustained.
  • The Court of Appeal has no jurisdiction to hear the appeal.
  • The appeal is incompetent and is struck out with no order as to costs.
  • The Registrar is directed to ensure all files in respect of the appellants are placed before the Principal Judge so that the trial of the appellants begins and is expeditiously concluded.

Key headnotes

Appeals — Jurisdiction — Appeal as a Creature of Statute
Appellate jurisdiction springs only from statute; there is no inherent appellate jurisdiction, and where a statute confers a right of appeal it is immaterial whether the order appealed is interlocutory or final.
Appeals — Bail — No Right of Appeal Against Refusal of Bail
There is no right of appeal to the Court of Appeal against a decision of the High Court refusing bail, as sections 132 and 133 of the Trial on Indictment Act and sections 34, 35 and 36 of the Criminal Procedure Code Act confer appellate rights only in respect of convictions, sentences, acquittals, dismissals and expressly provided-for orders.
Right of Appeal — Express Statutory Conferment Required
Where the legislature intends to confer a right of appeal from a particular order it does so expressly; the absence of any express provision for appeal against a refusal of bail under the bail provisions of the Trial on Indictment Act demonstrates that no such right exists.
Human Rights Enforcement — Bail Application Not an Enforcement Application
An ordinary application for bail under Article 23(6) of the Constitution and section 14 of the Trial on Indictment Act is not an application for enforcement of fundamental rights under Article 50, and section 16 of the Human Rights (Enforcement) Act 2019 does not confer a right of appeal from a refusal of bail in the ordinary course of a criminal trial.
Special Finding — Definition Excludes Refusal of Bail
A special finding under section 133 of the Trial on Indictment Act relates only to findings of diminished responsibility on account of insanity under section 48(1) of that Act and section 194(1) of the Penal Code Act, and does not include a refusal of bail by the High Court.

Legislation cited (25)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.194(1)
  • Trial on Indictment Act s.14(1)
  • Trial on Indictment Act s.15
  • Trial on Indictment Act s.15(3)
  • Trial on Indictment Act s.16
  • Trial on Indictment Act s.48(1)
  • Trial on Indictment Act s.125(3)
  • Trial on Indictment Act s.126(4)
  • Trial on Indictment Act s.132
  • Trial on Indictment Act s.133
  • Criminal Procedure Code Act s.34
  • Criminal Procedure Code Act s.35
  • Criminal Procedure Code Act s.36
  • Judicature Act s.10
  • Human Rights (Enforcement) Act 2019 s.1(2)
  • Human Rights (Enforcement) Act 2019 s.2
  • Human Rights (Enforcement) Act 2019 s.3(1)
  • Human Rights (Enforcement) Act 2019 s.16(1)(c)
  • Constitution of Uganda 1995 Article 23(6)
  • Constitution of Uganda 1995 Article 50
  • Constitution of Uganda 1995 Article 134(2)
  • Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules 2019 Rule 7
  • Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules 2019 Rule 8

Cases cited (5)

  • Attorney General v Shah (No. A) [1971] EA 50
  • Charles Harry Twagira v Uganda (Criminal Appeal No. 27 of 2005)
  • Makumbi Moses v Uganda (Criminal Appeal No. 202 of 2020)
  • Makumbi Moses v Uganda; Supreme Court Criminal Appeal No 068 of 2021
  • Desai v Warsama [1967] 1 EA 351
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.