Substantial delay in disposing an appeal as a ground to get bail could be an unusual circumstance but it ought not be speculative rather factual

Mellan Marere v Uganda

Criminal Application No. 01 of 2023

Supreme Court of Uganda

MJ Chibita, SCJ

May 05, 2023

Reported by Faith Wanjiku and Bonface Nyamweya

Criminal law- presumptions- presumption of innocence- where the appellant had been convicted of murder contrary to section 188 and 189 of the Penal Code Act and sentenced to 29 years and 10 months’ imprisonment- where the appellant had been previously released on bail before her trial in the High Court and fulfilled all the conditions imposed on her until her conviction- where the appellant was of advanced age and suffered from asthmatic attacks, HIV WHO stage II, non-pitting oedema of the legs and her legs had been amputated- where the applicant applied for bail pending determination of her appeal on the grounds of her deteriorating health- when did the presumption of innocence guaranteed to a person accused of a crime end-Judicature (Supreme Court Rules) Directions SI 13-11, rule 6(2)(a); Criminal Procedure Code Act Cap 116, section 40.

Criminal law- application for bail- grounds for application for bail- where the appellant had been convicted of murder contrary to section 188 and 189 of the Penal Code Act and sentenced to 29 years and 10 months’ imprisonment- where the appellant had been previously released on bail before her trial in the High Court and fulfilled all the conditions imposed on her until her conviction- where the appellant was of advanced age and suffered from asthmatic attacks, HIV WHO stage II, non-pitting oedema of the legs and her legs had been amputated- where the applicant applied for bail pending determination of her appeal on the grounds of her deteriorating health- whether delay alone in disposing an appeal as a ground to get bail, could be an unusual or exceptional circumstance if it was unusual itself- Judicature (Supreme Court Rules) Directions SI 13-11, rule 6(2)(a); Criminal Procedure Code Act Cap 116, section 40.

Brief facts

The application was filed in the court registry on April 12, 2Ol7 and was supported by the affidavit of the applicant commissioned on March 17, 2Ol7. ln the affidavit in support of the application, the applicant deposed that she was a female adult Ugandan of sound mind aged 77 years, former District Councillor representing Rugreyo Sub County and a recipient of the Golden Jubilee Medal, Kanungu District.

On June 7, 2017, she was convicted of murder contrary to section 188 and 189 of the Penal Code Act and sentenced to 29 years and 10 months’ imprisonment. She was serving the sentence at Luzira Prisons. She filed an appeal against conviction and sentence in the Court of Appeal which reduced sentence to 18 years. She was previously released on bail before her trial in the High Court and fulfilled all the conditions imposed on her until her conviction. She was of advanced age and suffered from asthmatic attacks, HIV WHO stage II, non-pitting oedema of the legs and her legs had been amputated. The significant medical findings were that the vascular system in which she had enlarged heart, systolic murmurs, increased jugular vein pressure and galloping rhythm. The applicant applied for bail pending determination of her appeal. The application was lodged by Notice of Motion under Rules 6 (2) la),42 and 43 of the Judicature (Court of Appeal Rules) Directions.

Issues

i. When did the presumption of innocence guaranteed to a person accused of a crime end?

ii. Whether delay alone in disposing an appeal as a ground to get bail, could be an unusual or exceptional circumstance if it was unusual itself.

Relevant provisions of the law

Judicature (Supreme Court Rules) Directions SI 13-11

Rule 6(2)(a)

6. Suspension of sentence and stay of execution

1. Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stag execution, but the Court may-

a. in any criminal proceedings, where Notice of Appeal has been given in accordance with rule 59 or 60, of these Rules, order that the Appellant be released on bail or that the execution of any warrant of distress be suspended pending the determination of the appeal

Criminal Procedure Code Act Cap, 116

Section 40 -Admission of appellant to bail and customary pending appeal.

(2) The appellate court may, if it sees fit, admit an appellant to bail pending the determination of his or her appeal but when a magistrate’s court refuses to release a person on bail, that person may apply for bail to the appellate court.

Held

The conditions for grant of bail pending appeal included; the fact of whether the appeal was no frivolous and had a reasonable prospect of success. Furthermore, the question, inter alia, included whether the applicant complied with bail terms that had previously been granted by the lower court. Other factors to consider included the character of the applicant; whether he/she was a first offender or not; whether the offence of which the applicant was convicted involved personal violence; whether there was possibility of substantial delay in the determination of the appeal. A combination of two or more criteria could be sufficient and each case had to be considered on the basis of its own facts and circumstances.
The presumption of innocence guaranteed to a person accused of a crime, ended when the accused person was found by an impartial court guilt of the offence he or she was charged with. The interests of justice demanded that the courts shouldnot only take into account the rights of the convicted person, but also the interests of the victim and the society as a whole.
Before conviction an applicant charged with a serious offence was required to prove exceptional circumstances as set out in section 15 of the Trial on Indictments Act, CAP 23. It could not be the law that upon conviction the same person had no duty to prove those exceptional circumstances.
From the wording of the statute its pertinent for the court to state the meaning of the word determination as used in the parent statute.The Blacks’ law Dictionary 4th edition at page 536 defined determination as the decision of a court. It implied an ending or finality, the ending of a controversy or suit.the import of that rule was that bail pending appeal could be granted during the pendency of the determination of the appeal or in simple terms before the court granted its judgement.
The main appeal had already been determined and it just awaited judgement.The respondent further submitted that that would render the instant application one for bail pending judgement and not bail pending appeal. That would set a new precedent that the court should not encourage. That was because apart from the applicant fronting sickness there was no other justification in law or reason whatsoever necessitating creation of that new precedent.
It was based on the rationale that the court found that the application failed by law because the right to bail pending appeal was already extinguished by the very provisions provided by the applicant; Rule 6(2)(a), 42 and 43 of the Judicature (Supreme Court Rules) Directions SI 13-11.
Delay in disposing of the appeal should be assessed in light of whether there was real risk that the sentence or a considerable portion of it would have been served before the appeal was heard. Pursuant to the application the threat had already been extinguished since the appeal in the instant application was already heard and was just pending judgment.
As regards to substantial delay in disposing the appeal as a ground to get bail, that in itself could be an unusual circumstance, however it ought not be speculative but factual.Delay alone could only be an unusual or exceptional circumstance if it was unusual itself. The assertion in her Notice of Motion that there has been substantial delay in the determination of the matter was mere speculation and no evidence or facts had been adduced. That was more so since the court had already heard the matter and merely awaited judgment, thus rendering the application premature.
The applicant’s application for bail was premature due to lack of evidence that within one year an appeal whose memorandum was filed by May 2, 2018 could not have been heard within a year.There was no evidence that an appeal that had already been determined awaiting judgment would not be rendered soon.
Where the appeal had already been determined as was the case in issue, then it was the finding of the court that since the court was in the process of delivering its judgement then the application failed before even delving into the merits of the application.
The delay to render judgment was caused by the demise of one of the justices on the panel. On May 2, 2023, a reconstituted panel introduced to the parties. It was evidence that judgment in the case would be rendered sooner than later.
It would be a matter of immense cruelty if the applicant were granted bail that day and the following judgment in her appeal was rendered confirming her sentence whereupon her bail would be cancelled and the petitioner would be returned to prison. It was in the interest of justice to wait for the judgment in the appeal to be rendered. All indications were that that would be done very soon.

Application dismissed.

Relevance to the Kenyan jurisprudence

Article 50(2)(a) of the Constitution of Kenya 2010 provides that every accused person has the right to a fair trial, which includes the right to be presumed innocent until the contrary is proved. The Bail and Bond Policy Guidelines at page 9 paragraph 3.1. (d) underpins the right to reasonable Bail and Bond terms as follows: -

d) Right to Reasonable Bail and Bond Terms:

Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial.

Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.

In the case of James Kibet Chirchir v Republic [2022] eKLR, the court held that:

The cardinal consideration in granting bail/bond is to ensure that the accused person avails himself in court whenever he is required. Additionally, the bail/bond terms must not be pegged on the amount stated in the charge sheet alone but on the consideration that the accused person is presumed innocent until proven guilty, and reasonable bail terms where no compelling reasons have been given.

Furthermore, In Andrew Young Otieno v Republic (2017) eKLR, it was held: -

The terms imposed by the trial court should not be such that it amounts to a denial of the constitutional right of the accused to be released on bail pending trial. The trial court must consider the circumstances of each accused when determining bond terms to be imposed.

This case is therefore jurisprudential as it elaborates the conditions for grant of bail for a person already proved guilty and convicted as it notes that as regards to substantial delay in disposing an appeal as a ground to get bail, that in itself could be an unusual circumstance, however it ought not be speculative but factual.

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