Wakilii

Kajubi v Uganda (Miscellaneous Criminal Application 2 of 2016)

Supreme Court · [2018] UGSC 74 · 2018 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for bail pending the hearing and determination of a criminal appeal
Decision
Application for bail pending appeal dismissed; applicant remains in custody serving his sentence pending the hearing of his appeal

Observed later treatment

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Holding

The single judge dismissed the application for bail pending appeal. Bail pending appeal is not a right but a judicial discretion, the Constitution conferring only a right to apply. Applying the Arvind Patel conditions, the court accepted the applicant's good prison conduct and unblemished character and acknowledged that the long delay in the appeal being heard was regrettable. However, the offence involved personal violence, the conviction had been upheld on appeal and the applicant was serving a life sentence, so the severity of the sentence created a real risk of absconding. The cardinal consideration being whether the applicant would avail himself to court, the gravity of the conviction outweighed the other factors and no compelling reason to grant bail was shown.

Outcome

Application for bail pending appeal dismissed; applicant remains in custody serving his sentence pending the hearing of his appeal

Facts

The applicant was charged with murder, acquitted by the High Court in around 2010, then re-arrested and re-tried following a successful prosecution appeal to the Court of Appeal that ordered a re-trial. On 26 July 2012 he was convicted and sentenced to life imprisonment. The Court of Appeal upheld both conviction and sentence in Criminal Appeal No. 173 of 2012. In around June 2014 he filed an appeal to the Supreme Court, but the appeal had not been heard, partly because the Court of Appeal had not released the record of proceedings despite the applicant's requests and an October 2017 intervention by the Registrar of the Supreme Court. He first applied for bail in April 2016, which failed because the appeal was then slated for hearing in May 2016; the May 2016 hearing did not proceed because his record was incomplete. He relied on his good prison conduct, lack of prior record, ill health, family and business ties, and the prolonged delay. The State opposed the application.

Issues

  1. Whether the applicant, a convict whose conviction and sentence were upheld by the Court of Appeal, should be granted bail pending the determination of his appeal to the Supreme Court.

Orders

  • Application for bail pending appeal dismissed.

Rules and key headnotes

Bail — Bail Pending Appeal — Discretionary Nature of the Remedy
There is no automatic right to bail pending appeal; the right under Article 23(6) of the Constitution is limited to the right to apply for bail, and the grant or refusal of bail lies in the discretion of the court, to be exercised judiciously on the merits of each case.
Bail — Bail Pending Appeal — Governing Conditions
In considering bail pending appeal the court is guided by the conditions in Arvind Patel v Uganda: the character of the applicant, whether he is a first offender, whether the offence involved personal violence, whether the appeal is not frivolous and has a reasonable possibility of success, the possibility of substantial delay in determining the appeal, and the applicant's compliance with earlier bail conditions.
Bail — Bail Pending Appeal — Effect of Conviction on Presumption of Innocence
The constitutional presumption of innocence under Article 28(3) is not entirely extinguished by a conviction in the lower courts until all appellate levels have been exhausted, but at the bail-pending-appeal stage it is eclipsed by the conviction, and the severity of the sentence may create an added incentive for the convict to abscond.
Bail — Bail Pending Appeal — Cardinal Consideration of Availability to Court
The cardinal consideration in granting bail pending appeal is whether the applicant will answer the terms of bail by availing himself to court when required; where the offence involved personal violence and the applicant is serving a severe sentence already upheld on appeal, the gravity of the conviction may outweigh good character and regrettable delay, justifying refusal of bail.

Legislation cited (11)

Cases cited (1)

  • Arvind Patel v Uganda (Supreme Court Criminal Appeal No. 1 of 2003)

Full judgment

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

Kajubi v Uganda (Miscellaneous Criminal Application 2 of 2016) [2018] UGSC 74 (17 April 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.