Wakilii

Sheikh Yunus Kamoga v Uganda (Criminal Application No.77 of 2017)

High Court · [2018] UGHC 32 · 2018 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for bail pending appeal to the Court of Appeal following conviction for terrorism and sentence to life imprisonment by the High Court
Decision
Applicant remains in custody serving life sentence; bail pending appeal refused; appeal to proceed expeditiously

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Holding

The Court dismissed the application for bail pending appeal. Held that the presumption of innocence does not continue after conviction; the burden shifts to the convicted person to demonstrate exceptional circumstances justifying release. The applicant failed to show an overwhelming likelihood of success of his appeal. The offence of terrorism is a capital offence with a life sentence, creating high risk of absconding. Age and medical condition, absent evidence that prison facilities cannot manage the condition, do not constitute exceptional circumstances. The Court directed expedited preparation of the record of appeal.

Outcome

Applicant remains in custody serving life sentence; bail pending appeal refused; appeal to proceed expeditiously

Facts

The applicant, Sheikh Mohammed Yunus Kamoga, was convicted by a panel of three High Court judges of the offence of terrorism and sentenced to life imprisonment on 21 August 2017. He had been acquitted of two counts of murder and attempted murder. The terrorism conviction was based on findings that he threatened murder and was involved in attacks against a section of the Muslim community for religious purposes. The applicant, aged 66, applied for bail pending his appeal, citing his advanced age, medical conditions (severe hypertensive heart disease, chronic gastritis, gross obesity), substantial sureties, plausible grounds of appeal, and possibility of delay in determination. He had been in custody for approximately five years including remand. He sought the record of proceedings to file his memorandum of appeal but it had not yet been produced.

Issues

  1. Whether the applicant should be granted bail pending his appeal against conviction for terrorism and sentence to life imprisonment.
  2. Whether the presumption of innocence continues after conviction pending appeal.
  3. Whether the applicant's appeal has an overwhelming likelihood of success.
  4. Whether there is a possibility of substantial delay in determination of the appeal.
  5. Whether the applicant's age and medical condition constitute exceptional circumstances justifying bail pending appeal.

Orders

  • Application for bail pending appeal dismissed.
  • Registrar of the International Crimes Division directed to produce the record of proceedings within 40 days.
  • Order to be served on the Chief Justice for any directions as to preparation of the record to expedite the appeal.
  • Record to be availed to the applicant to lodge memorandum of appeal.
  • Appeal to be fixed for hearing expeditiously.

Rules and key headnotes

Bail Pending Appeal — Burden of Proof — Shift After Conviction
Where a person has been convicted, the onus is on that person to show cause why the conviction should be set aside and similarly the onus is on that person to show cause why as a convicted person they should be released on bail. The reasons for release on bail pending appeal must be exceptional because there is a presumption that the conviction by the trial court was proper.
Right to Liberty — Presumption of Innocence — Extent After Conviction
Under article 28(3)(a) of the Constitution, a person shall be presumed to be innocent until proved guilty or until that person has pleaded guilty. The presumption of innocence ends when the accused person is found by an impartial court guilty of the offence charged. Upon conviction, the interests of justice demand that courts consider not only the rights of the convicted person but also the interests of the victim and society as a whole.
Bail Pending Appeal — Criteria for Grant — Combination of Factors
In considering an application for bail pending appeal, relevant considerations include the character of the applicant; whether a first offender; whether the offence involved personal violence; whether the appeal is not frivolous and has a reasonable possibility of success; whether there is possibility of substantial delay in determination of the appeal; and whether the applicant complied with previous bail conditions. It is not necessary that all conditions be present; a combination of two or more criteria may be sufficient.
Bail Pending Appeal — Likelihood of Success — Standard Required
The most important consideration in granting bail pending appeal is whether the appeal has an overwhelming probability of success. When these applications are considered, it must not be forgotten that the presumption is that when the applicant was convicted, he was properly convicted. An applicant wishing to secure liberty forthwith must show that there is an overwhelming probability that the appeal will succeed.
Bail Pending Appeal — Terrorism Offence — Risk of Absconding
Where an applicant has been convicted of a capital offence such as terrorism and sentenced to life imprisonment, there is a high likelihood of absconding given the nature and gravity of the offence and the severity of the sentence. The length of sentence is a material consideration; if a term of imprisonment is long, it makes it more likely that the applicant may abscond if released on bail.
Terrorism — Definition — Acts of Terrorism
Under section 7(2) of the Anti-Terrorism Act 2002, a person commits an act of terrorism who, for purposes of influencing the Government or intimidating the public or a section of the public for a political, religious, social or economic aim, indiscriminately without due regard to the safety of others or property, carries out specified prohibited acts. These include direct involvement or complicity in the murder, kidnapping, maiming or attack, whether actual, attempted or threatened, on a person or groups of persons. The offence is fully committed if any of the listed acts are committed, subject to proof of the specified purpose.
Bail Pending Appeal — Medical Condition — Insufficient Without Evidence of Inability to Manage in Prison
While ill-health alone may not necessarily constitute exceptional circumstances, the combination of advanced age and ill-health may be exceptional. However, where there is no evidence that the applicant's state of health cannot be managed in prison, and the Prisons Act empowers prison authorities to evacuate prisoners to medical facilities where necessary, medical condition without more does not constitute exceptional circumstances justifying bail pending appeal.

Legislation cited (16)

Cases cited (22)

  • Arvind Patel v Uganda (Criminal Application No. 1 of 2003)
  • Joanita Igamu v Uganda (Criminal Application No. 0107 of 2013)
  • Kyeyune Mitala Julius v Uganda (Miscellaneous Application No. 4 of 2017)
  • Sheikh Siraje Kawooya v Uganda (Criminal Application No. 86 of 2017)
  • Raghbir Singh Lamba v R [1958] 1 EA 337
  • Girdhar Dhanji Masrani v R [1960] 1 EA 320
  • Chimambhai v Republic (No. 2) [1971] 1 EA 343
  • David Chandi Jamwa v Uganda (Criminal Application No. 20 of 2011)
  • Kaguma v Republic [2004] 1 EA 68
  • Somo v Republic [1972] 1 EA 476
  • Karanja v Republic [1986] KLR 612
  • John Kashaka Muwanguzi v Uganda (Criminal Reference No. 797 of 2014)
  • Busiku Thomas v Uganda (Criminal Appeal No. 33 of 2011)
  • Ramanlal Trambaklal Bhatt v R [1957] 1 EA 332
  • Sande Pande Ndimwibo v Uganda (Miscellaneous Application No. 241 of 2014)
  • Ekusia Joseph v Uganda (Criminal Application No. 69 of 2016)
  • Kabaza Jackson v Uganda (Criminal Application No. 097 of 2016)
  • R v Foy [1962] 2 All ER 245
  • Tigo Stephen v Uganda (Criminal Appeal No. 08 of 2009)
  • Ssekawoya Blasio v Uganda (Criminal Appeal No. 24 of 2014)
  • Susan Kigula and Others v Uganda (Constitutional Appeal No. 3 of 2006)
  • Teddy Sseezi Cheeye v Uganda (Miscellaneous Criminal Appeal No. 37 of 2009)

Full judgment

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Sheikh Yunus Kamoga v Uganda (Criminal Application No.77 of 2017) [2018] UGHC 32 (18 May 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.