Wakilii

Birete Sarah v Uganda [2017] UGSC 27

Supreme Court · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion for bail pending the disposal of a second appeal to the Supreme Court
Decision
Bail granted pending the disposal of the applicant's appeal, on conditions.

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Holding

The court granted bail pending appeal. Although the application was brought under article 23(b)(a) of the Constitution, which does not provide for bail pending appeal (the correct provision being section 40(2) of the Criminal Procedure Code), the court invoked article 126 to administer substantive justice without undue regard to counsel's technical error. Applying the Arvind Patel principles, the court found the applicant satisfied the conditions: uncertainty as to when the appeal would be heard, partial success already achieved in the Court of Appeal, no real flight risk given prior compliance with bail terms, and substantial approved sureties.

Outcome

Bail granted pending the disposal of the applicant's appeal, on conditions.

Facts

The applicant was convicted by the Anti-Corruption Court on two counts and sentenced to 10 years imprisonment on each count of abuse of office and embezzlement under the Anti-Corruption Act 2009, and ordered to refund USD 70,000. On appeal, the Court of Appeal allowed her appeal against conviction and sentence on the abuse of office count but upheld her conviction and sentence on the embezzlement count. She lodged a further appeal to the Supreme Court and applied for bail pending its disposal. She had been released on bail during the trial and the first appeal and had complied with all bail conditions. She is a single mother of two infant sons and guardian of an orphaned child. She had applied for, but not yet been supplied with, a copy of the Court of Appeal proceedings, raising concern about delay. She presented four sureties, including a serving Assistant DPP who executed powers of attorney over land to be deposited as security.

Issues

  1. Whether the applicant should be released on bail pending the disposal of her appeal to the Supreme Court.
  2. Whether bringing the application under a wrong enabling provision is fatal to the application.
  3. Whether the proposed appeal raises a point of law with a reasonable chance of success.

Orders

  • Application succeeds; applicant to be released on bail.
  • Applicant to execute a bail bond of Shs. 700 million (not cash).
  • Applicant to deposit the original land title in the names of her cousin (4th surety) comprised in Mengo, Kyadondo Block 210 Plot 1920.
  • Each of the 4 sureties to execute bonds of Shs. 250 million (not cash).
  • Securities deposited in the trial court and Court of Appeal (passport and land title on which her residence is situated) not to be released until the appeal is disposed of.
  • Applicant to report to the Registrar of the Supreme Court on every 15th working day of the month starting 15th July 2016 to have her bail extended until the appeal is heard and disposed of.

Rules and key headnotes

Criminal Procedure — Bail pending appeal — Effect of citing a wrong enabling provision
An application for bail pending appeal brought under a wrong enabling provision is not fatally defective; the court may invoke article 126 of the Constitution to administer substantive justice without undue regard to technicalities, particularly where the error is that of counsel and not the applicant.
Criminal Procedure — Bail pending appeal — Correct enabling law
The correct provision under which to apply for bail pending appeal is section 40(2) of the Criminal Procedure Code, and not article 23(b)(a) of the Constitution, which does not provide for such bail.
Criminal Procedure — Bail pending appeal — Governing principles
In deciding whether to grant bail pending appeal the court considers the likely delay before the appeal is heard, the prospects of success of the appeal, and whether the applicant is likely to abscond, having regard to conduct on prior bail and the substantiality of the sureties.

Legislation cited (7)

Cases cited (2)

  • Arvind Patel Vs Uganda Misc Application No. 2003
  • Alenyo Marks v Uganda (Miscellaneous Application No. 05 of 2015)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Birete Sarah v Uganda [2017] UGSC 27 (15 June 2017)
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.