BISHOP STUART UNIVERSITY

FACULTY OF LAW

MUKAMATUKWATSE LEVIS
2023
BACHELOR OF LAWS

QUESTION:
Bail pending trial and bail pending appeal are two different remedies given at different stages in
criminal proceedings. Discuss the differences and the conditions for grant of either remedy.
The Black’s Law Dictionary defines ‘bail’ as the process by which a person is released from custody
either on the undertaking of a surety or on his or her own recognizance. Release of a prisoner on
security for a future appearance1.

A better approach to the define bail was reached in the case of Aliphusadi Matovu v Uganda2 the
release from custody by a court of law of a person accused of a criminal offence after such person has
entered a recognizance consisting of a bond with or without sureties, for a reasonable sum of money
to the effect that he or she would appear before court for his or her trial.
The above definition , we can conclude that regard is made as to the following concerns as Francis J.
Ayume3 pointed out in his book on criminal procedure, that;
1. The presumption that the accused is innocent until proved guilty or upon he/she pleading guilty or
upon he/she pleading not guilty.
2. The profound belief that the accused is in the best position to build up his or her defense at the trial
according to. That these two on bail symbolize the country’s bedrock concern for personal freedom.
Court stated the importance of bail in the case of Nyago Lazio v Uganda4 that bail is granted to an
accused person to ensure that he/she appears to stand trial without the necessity of him/hr being
detained in custody in the meantime.

Conditions for bail pending trial.

Article 23(6)(a) of the Constitution of Uganda (1995) states that an arrested person is ‘entitled’ to
apply to court for bail (discretionary bail). Articles 23(6)(b) and (c) require a court to release on bail a
person who has been awaiting trial in custody for a specified number of days (mandatory bail).This
implies that bail pending trial can only be granted where the arrested person has been arraigned or
charged before court as observed in the case of Kananura & 3 Ors v Uganda5 even though it has been
observed that bail is not automatic as seen in DPP vs. Col Rtd Dr. Kizza Besigye6.
S.75(2) MCA provides for offences which bail may not granted by the magistrate Court which
include offences triable only by the High Court and others as prescribed therein.
I can describe bail pending trial as the normal bail granted by the constitution as seen above in Article
23(6). It is discretionary but at certain point t is mandatory by virtue of Paragraphs (b)&(c). That is,
“in the case of an offence which is triable by the High Court as well as by a subordinate court, if that
person has been remanded in custody in respect of the offence for sixty days before trial, that person
shall be released on bail on such conditions as the court considers reasonable” and; “in the case of an
offence triable only by the High Court, if that person has been remanded in custody for one hundred
and eighty days before the case is committed to the High Court, that person shall be released on bail
on such conditions as the court considers reasonable”. These are the two situations where bail
pending trial is mandatory.

The procedure for the grant of bail in the magistrate’s court is that applications to the magistrate’s
court may be oral or in writing as stated in the Rules 2&37 of the . Whereas, in high court, procedure
for bail is that applications to the high court are by motion on notice with an affidavit accompanying
the application.
1
Bryan A Garner, “Black’s Law Dictionary”, 8th ed., 2008, p.426
2
(Criminal Miscellaneous Application No 15 of 2005)
3
Francis J. Ayume, Criminal Procedure and Law in Uganda (Longman Publishers 1986) pg.54
4
(Criminal Application No. 16 of 2022)
5
(Misc. Applications No. 01, 02&03 Of 2013)
6
(Constitutional Court Const. Ref. No. 20 of 2005)
7
Judicature(Criminal Procedure)(Application) Rules SI 13-8
Conditions for grant of bail pending trial are set out under Section 77(2) MCA and Section 15 (1)
TIA. They include the following:

a) That the Magistrate Court must have regard for in deciding whether bail should be granted or
refused. Courts observe the nature of the accusation as seen in Uganda v Mugerwa & Anor8
where court observed that, the gravity of the offence charged and the severity of the punishment
which conviction might entail, this basically means that if the applicant has committed a crime so
severe, it is more likely that bail will be rejected, the criminal record of the applicant for bail is
also very important.

b) Whether the applicant has a fixed abode within the area of the court’s jurisdiction.
This means that the applicant/accused by having that fixed place of abode he/she will not abscond and
will hence appear in court as required. In the case of Sudhir Ruparelia v Uganda9 in that case court
observed that, the fact that the accused had a kibanja, and that he had sixteen wives and or twenty four
children, may be an indication that he is unlikely to abscond.

c) Whether the applicant is likely to interfere with any of the witnesses for the prosecution or any of
the evidence to be tendered in support of the charge.
Where the it is foreseen that the accused will destroy evidence or threaten the witnesses using his
authority then bail mail not be granted. In the case of Uganda v William Nadiope & 5 Ors10, , bail
was refused on the ground that because of the accused person’s prominence and apparent influence in
life, there was every likelihood of his using his influence to interfere with witnesses. But court noted
in the case of Hon. Godi Akbar v Uganda11 that there would be no reason to deny the applicant bail
merely on speculative fears that he might harass or intimidate some witnesses and bail was granted.
Therefore it is worth considering that courts must not simply act on allegations, fears or suspicions
and thus

d) In case of the High court especially for the offences stated in S.2 TIA.
The accused must prove that exceptional circumstances exist justifying his or her release on bail and
that he or she will not abscond when released on bail. Section 15 (3)TIA gives the exceptional
circumstances to mean grave illness certified by a medical officer of the prison or other institution or
place where the accused is detained as being incapable of adequate medical treatment while the
accused is in custody
If all the above are satisfied then what will be required is to present substantial sureties(that the people
that will whereby court may upon approval of the sureties grant either cash or non cash bail but
mostly court grants cash bail.
The effect of granting bail is not to set the accused free but to release him/her from custody of the law
and entrust him/her to the custody of his sureties who are bound to produce him to appear at his trial
at a specified time and place as has been observed in the recent case of Sher Singh Shekhawat v
Uganda12 .

8
[1975] HCB 218
9
[1992-1993] HCB 52
10
H.C. Misc. Criminal Applications No’s.51-56 of 1969
11
(H.C. Misc. Applicaon no. 20 of 2009)
12
(Criminal Misc. Application No. 11 of 2023)
It should be noted also that if the case is its early stages of investigations bail may not be granted as
court held in Sher Singh Shekhawat v Uganda [supra] that it was found inappropriate to order
release of the accused on bail as the case of rape of which he had been charged was in its early stages
of investigations by then.

Condition for bail pending Appeal.

An appellant may at any time before the determination of his or her appeal, apply for bail to the
appellate court, and the appellate court may grant the bail as provided for under As per S.205 of The
Magistrates Courts Act, &S.132 (4) of The Trial on Indictments Act. An implication that bail pending
appeal relates to persons that have been sentenced and thus intend or have appealed against the trial
court’s decision.

The constitution is very silent on the existence of a right of bail pending but similarly, it is silent about
prohibition of the same. Therefore when discussing right of bail pending appeal regard should be
made to other legislations as well as court decisions.

Bail pending appeal nonetheless is provided for in the Magistrates Courts Act, the Judicature Act and
the Criminal Procedure Code Act. The MCA13 provides that an appellant may, at any time before the
determination of his or her appeal, apply for bail to the appellant court, and the appellant court may
grant the bail.

S. G. Engwau JA in Teddy Sseezi Cheeye v Uganda14 noted that Courts have the jurisdiction to grant
bail to any convicted person, who has lodged a criminal appeal to court before the appeal is
determined. This, however, is a discretionary jurisdiction, which should be exercised judiciously. This
implies that bail pending appeal exists.

It was held in the case of Chemiswa v Uganda15 that the appellate court has discretion to grant bail
pending appeal and each case is tried on its merits as seen in the case of and just like in High court
and The Magistrates’ court, also the concept under bail pending appeal here, the applicant must prove
exceptional circumstances as to why they should be released on bail pending appeal.

Some of the conditions for bail pending appeal where highlighted in Arvind Patel v Uganda16 wherein
court stated that considerations for grant of bail should generally apply to an application for bail
pending Appeal and hence reproduced them as follows, “The character of the applicant, Whether
he/she is a first offender or not?, Whether the offence of which the applicant was convicted involved
personal violence?, The Appeal is not frivolous and has a reasonable possibility of success, The case
of a substantial delay in the determination of the Appeal, and Whether the applicant has complied
with bail conditions granted after the applicant’s conviction and during the pendency of the Appeal (if
any)”.

In the case of Bamutura Henry V Uganda17 court raised other conditions as follows;
i. there must exist some unusual and exceptional circumstance.

13
Section 205 MCA
14
Miscellaneous criminal application No.37 of 2009
15
1973 HCB 193
16
Criminal Application No. 1 of 2003
17
(Miscellaneous Application No.19 of 2019)[2020] UGSC 2
ii. substantial delay in disposing the Appeal
iii. Appeal having a reasonable possibility of success

Despite the above decisions, Esther Kisaakye JSC in the case of Magombe v Uganda18while relying
on Art. 23(6) and Art.28(3)(a) of the Constitution was able to hold that bail pending appeal is not
expressly provided in the constitution and besides the presumption of innocence no longer exists
when a person has been convicted hence concluded that there is no right to apply for bail pending
appeal and that Rule 6(2)(a) of the Supreme Court Rules is null and void.

Nonetheless, this decision was over ruled by the same court in the Nakiwuge Racheal Muleke v
Uganda19 wherein court held that although the right bail pending is not expressly provided for in the
constitution, the supreme Court Rules do provide for it and should therefore be relied on whenever
applications for bail pending appeal are made.
The court’s reasoning was that the constitution grants permission to Parliament to enact other laws
providing for then structures, procedures and functions of the judiciary.

Additionally, S.132(4) TIA applies to the supreme court by virtue of S.5(11) of the Judicature Act
provides that section 132(4)&(5) TIA shall with necessary modifications apply to to the supreme
court. S.132(4) TIA provides that, “except in a case where the appellant has been sentenced to death,
a judge of the High Court or the Court of Appeal may, I his or her discretion, in any case in which an
appeal to the Court of Appeal is lodged under this section, grant bail, pending the hearing and
determination of the appeal”

Therefore it s now a settled position that the Supreme Court has power to grant bail pending appeal by
virtue of Rule 6(2)(a) of the Supreme Court Rules and this power is discretionary.
Accordingly that Court of Appeal, High Court and Chief Magistrate Court have jurisdiction to
entertain and grant applications for bail pending the determination of an appeal against the decision of
a lower/trial court by virtue of S.40(2) CPCA.

Court further held in Nakiwuge case [supra] that its is important to note that the applicant in bail
pending appeal is longer shielded by Art. 28(3)(a) which provides for presumption of innocence and
hence and hence consideration to release him/her hinges on whether there are exceptional and unusual
circumstances; as I have already pointed out above in the Bamutura Henry Case [supra].
Court in the Nakiwuge case, while citing the case of David Chandi Jamwa v Uganda20 held that the
main criteria for granting bail pending appeal is that court must be satisfied that the Applicant will not
abscond but will only comply with the bail conditions and will be available to attend the hearing of
the appeal.

Basing on the above discussion,the differences between bail pending trial and bail pending
appeal include the following.
Bail pending trial is premised on the presumption of innocence under Article 28(3)(a) which is to
effect that the accused has not yet been proven or has not pleaded guilty; whereas bail pending appeal
though available it premised on exceptional and unusual circumstances and without debate the convict

18
(Miscellaneous Criminal Application No. 11 of 2019) [2020] UGSC 39
19
(Criminal Reference No. 12 of 2020
20
(SCMA No. 09 of 2018
is in no way protected by the presumption of innocence by the mere fact that he/she has already been
convicted.

Bail pending trial is is a right available to the accused when he/she has not yet been tried or is
awaiting being tried whereas bail pending appeal is a right available to the convict that has even been
sentenced but has ever since appeal against the decision of the court that sentenced him/her.

The right to apply for bail pending trail is expressly provided for in the the constitution under Article
23(6)(a), to the extent that even there is mandatory bail under paragraphs (b)&(c), but Constitution
has no express provision on bail pending appeal whether in recognition or in prohibition

The power to grant bail pending trial is vested in the trial courts as courts of first instance that is either
a Magistrate court under S. 75(1) MCA or the High court under S. 14(1) TIA whereas power to grant
bail pending appeal is vested in the Appellate court in which the appeal has been lodged as seen under
S.40 CPCA & S.205 MCA and similarly the Supreme Court has jurisdiction as seen under Rule 6(2)
(a) of its Rules.

While considering applications for bail pending trial the court considers things like place of abode of
the accused, nature of the offence, exceptional circumstances, possibility to interfere with the
witnesses, first time commission of the offence and of course if the offence bailable only. But in bail
pending appeal as seen in Bamutura Henry V Uganda [supra], courts considers the possibility of
success of the appeal, substantial delay in disposing of the appeal and then unusual and exceptional
circumstances and also mainly court has to be satisfied that applicant shall not abscond.

Bail pending trial if in a Magistrate Court may be applied for orally or by Notice of Motion thus
setting two forms in which it can be done under Rule 3 of the Judicature (Crimina Procedure)
(Applications) Rules whereas bail pending appeal strictly must be applied for in a written form
(notice of motion) under Rule 2 [supra].

In Conclusion,
Bail pending trial is a constitutional right available to the accused person hinged on the presumption
of innocence and is discretionary but also as stipulated in Art. 23(6)(b&c) it becomes mandatory if the
accused spends the prescribed period in custody without being tried.
Bail pending appeal is human right not recognized in our constitution but also not prohibited therefore
the Supreme Court has recognised it through other enactments of Parliament which include S.40(2)
CPCA, S. 132(4) TIA, S.5(11) Judicature Act, Rule 6(2)(a) Supreme Court Rules, which I believe
should have been backed up by Article 45 of the Constitution which provides for other rights not
expressly provide for therein. It is nonetheless now settled that Appellate courts have jurisdiction and
discretion to grant bail pending appeal.
REFERENCES
STATUTES.
1. The 1995 Constitution of the Republic of Uganda as Amended
2. The Trial on Indictment Act, Cap 23
3. The Magistrates’ Courts Act, Cap 16
4. The Criminal Procedure Code Act 116
5. The Supreme Court Rules
6. Judicature(Criminal Procedure)(Application) Rules SI 13-8

CASE LAW.
1. Aliphusadi Matovu v Uganda (Criminal Miscellaneous Application No 15 of 2005)
2. Nyago Lazio v Uganda (Criminal Application No. 16 of 2022)
3. Sher Singh Shekhawat v Uganda (Criminal Misc. Application No. 11 of 2023)
4. Kananura & 3 Ors v Uganda (Misc. Applications No. 01, 02&03 Of 2013)
5. DPP vs. Col Rtd Dr. Kizza Besigye (Constitutional Court Const. Ref. No. 20 of 2005)
6. Uganda v Mugerwa & Anor [1975] HCB 218
7. Sudhir Ruparelia v Uganda [1992-1993] HCB 52
8. Uganda v. William Nadiope and five others, H.C. Misc. Criminal Applications No’s.51-56 of
1969
9. Hon. Godi Akbar v Uganda (H.C. Misc. Application no. 20 of 2009)
10. Capt. Wilberforce Serunkuma v Uganda [1995] 1 KALR 32
11. Chemiswa v Uganda 1973 HCB 193
12. Arvind Patel (Applicant) v Uganda (Respondent) Criminal Application No. 1 of 2003
13. Bamutura Henry V Uganda (Miscellaneous Application No.19 of 2019)[2020] UGSC 2
14. Magombe v Uganda (Miscellaneous Criminal Application No. 11 of 2019) [2020] UGSC 39
15. Nakiwuge Racheal Muleke v Uganda (Criminal Reference No. 12 of 2020
16. David Chandi Jamwa v Uganda (SCMA No. 09 of 2018

TEXT BOOKS,
1. BRYAN A Garner , “Black;s Law Dictionary”, 8th ed., 2004
2. Francis J. Ayume, Criminal Procedure and Law in Uganda (Longman Publishers 1986)