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Mugerwa & Another v Uganda (Criminal Miscellaneous Application 5 of 2022)

Supreme Court · [2023] UGSC 62 · 2023 Bail Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by a single justice for bail pending the hearing and determination of a criminal appeal to the Supreme Court
Decision
Applicants released on bail pending the determination of their appeal, on stringent conditions

Observed later treatment

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Holding

On an application for bail pending a second appeal, the single justice held that bail pending appeal is granted only on exceptional and unusual circumstances, applying the guidelines in Arvind Patel v Uganda. Of those factors, the applicants' good character, first-offender status, prior compliance with bail conditions in the lower courts, and the presentation of substantial sureties favoured release; the alleged risk of substantial delay, the prospects of success of the appeal (undermined by the absence of the record of appeal), and the medical grounds did not. Since not all conditions need exist, the favourable factors sufficed, and the applicants were released on bail pending appeal on stringent conditions including cash deposits and surety bonds.

Outcome

Applicants released on bail pending the determination of their appeal, on stringent conditions

Facts

The applicants were employed by the Uganda Revenue Authority, the first as a supervisor and the second as a revenue officer, with duties relating to verifying and approving taxpayers' VAT refund claims. In 2014 they approved impugned payments leading to a loss of about six billion Uganda shillings to URA. On 6 November 2015 the High Court Anti-Corruption Division convicted each of them of abuse of office, causing financial loss and false claims by officials, sentencing them to 5, 10 and 2 years' imprisonment respectively, to run concurrently, plus a ban from public office. The Court of Appeal dismissed their appeal and confirmed the convictions and sentences. They lodged a further appeal to the Supreme Court and applied for bail pending its determination, relying on their good character, first-offender status, non-violent offences, prior compliance with bail, alleged delay, chronic illnesses and substantial sureties. A third party from whom the lost funds were recovered meant no compensation order was made against them.

Issues

  1. Whether the applicants established exceptional and unusual circumstances warranting their release on bail pending the hearing and determination of their appeal to the Supreme Court.

Orders

  • Each of the applicants to deposit in Court Uganda shillings 10,000,000/= in cash.
  • Each surety for the respective applicants to bind themselves in the sum of Uganda shillings 50,000,000/= (non-cash).
  • The Registrar to transfer the applicants' deposited security of properties and passports from the lower court to the custody of this Court until the appeal is determined.
  • Each applicant to report to the Registrar of this Court on the last working day of every month until the appeal is disposed of or the order varied.
  • The Registrar to fix the appeal for disposal as soon as practicable.

Rules and key headnotes

Criminal Procedure — Bail Pending Appeal — Exceptional and Unusual Circumstances
The grant of bail pending appeal is discretionary and requires exceptional and unusual circumstances, the principles being more stringent than those for bail pending trial, because the applicant is no longer wholly shielded by the presumption of innocence and is presumed to have been properly convicted.
Criminal Procedure — Bail Pending Appeal — Arvind Patel Guidelines
In deciding bail pending appeal the court considers the character of the applicant, whether the applicant 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 whether the applicant complied with bail conditions during the pendency of the appeal.
Criminal Procedure — Bail Pending Appeal — Sufficiency of Factors
Not all the conditions for bail pending appeal need exist; the presence of two or three of the relevant factors can suffice, since each case is decided on its own facts and circumstances.
Criminal Procedure — Bail Pending Appeal — Absence of Record of Appeal
Where the record of appeal and the judgment appealed from are not placed before the court, the court cannot evaluate the likelihood of the appeal succeeding, and the missing record acts against the applicant on that consideration.
Criminal Procedure — Bail Pending Appeal — Delay
Delay can amount to an exceptional or unusual circumstance only if it is itself unusual, assessed by whether there is a real risk that the sentence, or a considerable portion of it, will have been served before the appeal is heard; speculation about delay is insufficient.
Criminal Procedure — Bail Pending Appeal — Overriding Consideration
The overriding consideration in granting bail pending appeal is that the court must be satisfied the appellant will comply with the bail conditions and be available to attend court, the risk of absconding being addressable through the conditions imposed.

Legislation cited (14)

Cases cited (8)

  • Arvind Patel v Uganda (Supreme Court Criminal Application No. 1 of 2003)
  • Alenyo Mark v Uganda (Supreme Court Miscellaneous Application No. 5 of 2015)
  • Kyeyune Mitala Julius v Uganda (Supreme Court Miscellaneous Application No. 4 of 2017)
  • Mugerwa Dominic & Muhwezi Abias v Uganda (Supreme Court Miscellaneous Application No. 15 of 2021)
  • Henry Bamutura v Uganda (Supreme Court Miscellaneous Application No. 19 of 2019)
  • Kiwanuka Kunsa Stephen v Uganda (Supreme Court Criminal Application No. 4 of 2022)
  • Chimambai v Republic (No. 2) [1971] EA 343
  • Kashaka Vs Uganda (supra)

Full judgment

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

Mugerwa & Another v Uganda (Criminal Miscellaneous Application 5 of 2022) [2023] UGSC 62 (16 May 2023)
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.