THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT THE ANTI CORRUPTION COURT

CRIMINAL APPLICATION NO……..OF 2024
(Arising from Chief Magistrate’s Court of Buganda Road attached to the Anti- Corruption
Division HCT-00-AC-SC-0022-2023)
ONANA MARK::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS
UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

APPLICANT’S SUBMISSIONS
INTRODUCTION:

My lord, the Applicant filed this Application pursuant to Section 28 (1) and Section 40 (2) of
the Criminal Procedure Code Act Cap 116, Rule 2 the Judicature (Criminal Procedure)
(Application) Rules S.I 13-8, Section 204(1) (a) and Section 205 of the Magistrates Courts
Act Cap16 as Amended)
The Applicant seeks;

a) Bail pending the hearing of his Appeal filed in the High Court vide Criminal Appeal
No. 001 of 2024.
BACKGROUND OF THE APPLICATION

The Applicant in this Application is the Appellant in Criminal Appeal No.001 of 2024 before
this Honorable Court.

The Applicant who was employed as Manager Finance and Acting Head Finance to Posta
Uganda was on the 9th day of May, 2024 charged and convicted for the offences of
Embezzlement of UGX 40,000,000 contrary to Section 19(b) (iii) and Causing Financial Loss
contrary to Section 20 (1) of the Anti-Corruption Act 2009 by Her Worship Mary Kwasa Kwasa
(Chief Magistrate- Buganda Road Attached to Anti-Corruption Court at Kololo) who sentenced
the Applicant to an imprisonment of 8years for embezzlement and 3 years for causing financial
loss and both imprisonment terms are to run concurrently.

The Applicant appealed to this Honorable court on both conviction and sentence and
subsequently filed this Application for grant of Bail pending Appeal in this Honorable court.
ISSUE FOR DETERMINATION.

We propose the following issue for determination;

1) Whether there are sufficient grounds to justify Onana Mark’s application for bail pending
appeal?

LAW APPLICABLE.

 The Constitution of the Republic of Uganda1995 as amended

 The Criminal Procedure Code Act Cap 116
 The Judicature (Criminal Procedure) (Application) Rules S.I 13-8
 The Magistrates Courts Act Cap 16 as amended
 The Evidence Act Cap 6
 Trial on Indictment Act Cap 23
 The Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022
 Case law

RESOLUTION OF ISSUES

1) Whether there are sufficient grounds to justify Mark Onana’s application for bail pending
appeal?

My lord, according to Section 205 of the Magistrates Courts Act Cap 16 as amended an
appellant may at any time before determination of his or her appeal apply for bail to the appellate
court and the appellate court may grant bail.

My lord Section 40(2) of the Criminal Procedure Code Act is to the effect that 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.

My lord the grounds for granting bail pending appeal were laid down in Guideline 19 of the
Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 as well as in
the Supreme Court case of Arvind Patel Vs. Uganda Supreme Court Criminal Appeal
Number 001 of 2003 by Justice Oder as (he then was) and they are as follows;
 a) The character of the applicant.
b) Whether he or she is a first offender.
c) Whether the offence of which the applicant was convicted involved personal violence.
d) The appeal is not frivolous and has reasonable possibility of success.
e) The possibility of substantial delay in the determination of the appeal.
f) Whether the applicant has complied with bail conditions granted before the applicant’s
conviction and during the pendency of the appeal if any.

My lord, the grounds upon which this application is premised are contained in the affidavit
of the applicant on court record which are resolved as follows;

1. My lord, before an application for bail pending appeal is granted, the applicant
must prove that he or she is of good character, paragraph 5 of the applicant’s affidavit
in support of the application shows that the applicant is of good character. In the case of
Igamu Joanita V Uganda Criminal Application No.0107 of 2013, the Justice of
Appeal, Hon. Kakuru Kenneth stated that a letter from the applicant’s church would help
court determine the good character of the applicant. My lord, annexure D to the affidavit
of the applicant is a letter from the priest at St. Luke Nabweru Church of Uganda
confirming the good character of the applicant. We therefore pray that this Honorable
court finds the applicant as a person of good character.

2. My lord in resolution of the ground of the applicant being a first time offender, I
would like to refer you to paragraph 6 of the applicant’s affidavit in support of the
application, the applicant was and has only been convicted of the offences of
embezzlement and causing financial loss from which he appealed on. My lord, Hon.
Kakuru Kenneth, the Justice of Appeal in the case of Igamu Joanita V Uganda
Criminal Application No.0107 of 2013 stated that to prove that the applicant is a first
time offender, the applicant ought to produce a certificate of criminal record from the
police and this certificate is on court record marked Annexure E. My Lord, during the
trial before the Chief Magistrates court, in alloctus, the respondent conceded to the fact
that the applicant is a first time offender, it is my prayer that this honorable court be
pleased to find him so and grant him the bail pending appeal.
3. My lord, the appeal is not frivolous and has reasonable possibility of success. This
was raised in the applicant’s affidavit in support of the application in paragraph 4. My
lord, the case of Mugisha v Uganda (criminal appeal No.176 of 2015) court stated that
an appeal is not frivolous if it raises genuine and arguable points of law or fact even if the
appeal ultimately fails. My lord the Notice and Memorandum of appeal on court record
as Annexure B and C respectively raise serious points of law and fact from the
judgment of the Chief Magistrate marked Annexure A which include that the learned
trial Chief Magistrate erred in law and fact when she convicted the appellant of causing
financial loss in the absence of the evidence of the handwriting expert hence arriving at a
wrong verdict. My lord, this warrants a full hearing hence making the appeal not
frivolous and vexatious.

4. My lord, there is also a possibility of substantial delay in determining the appeal.

My lord I would like to refer you to paragraph 7 of the affidavit in support of this
application. My lord, Hon. Kakuru Kenneth, the Justice of Appeal in the case of Igamu
Joanita V Uganda Criminal Application No.0107 of 2013, stated that the delays in
handling the appeals including criminal appeals in the honorable appellate courts is a
notorious fact that this court takes Judicial notice thereof and it is on this ground that we
pray that this Honorable Court takes judicial notice and finds this ground available for the
applicant.

5. My lord the offences of embezzlement and causing financial loss for which the
accused was convicted did not involve any personal violence. My lord paragraph 9 of
the affidavit of the applicant states that the offence of which he was convicted didn’t
involve personal violence. My lord In the case of Igamu Joanita V Uganda Criminal
Application No.0107 of 2013 the learned Justice of Appeal, Kakuru Kenneth stated that
the court takes judicial notice of its own records. My lord, it’s upon this decision that we
pray that this Honorable court finds this condition satisfied and grants the applicant bail
pending appeal.
 6. My lord the other ground is whether the applicant has complied with bail conditions
granted before. The Applicant deponed in paragraph 8 of his affidavit in support of the
application that he was granted bail by the Chief Magistrate where he duly abided by its
conditions. My lord, this is confirmed by the record of proceedings annexed to the
affidavit as F. My lord, in the record of proceedings, the applicant was granted bail by
the Chief Magistrate on the 22 nd day of March, 2024 and the applicant complied with the
bail conditions when he showed up for the hearing of the case that was fixed for the 9 th
day of April, 2024 and even when the hearing was adjourned on several occasions. We
therefore pray that this Honorable Court grants the applicant bail pending appeal basing
on the fact that the applicant will comply with the bail conditions as he did when he was
granted bail by the Chief Magistrate.

My lord, Hon. Kakuru Kenneth, the Justice of Appeal in the case of Igamu Joanita V Uganda
Criminal Application No.0107 of 2013, noted that the conditions set out in the case of Arvind
Patel Vs. Uganda Supreme Court Criminal Appeal Number 001 of 2003 are not exhaustive
and that each case must be determined on its own merits. In addition to the conditions set out in
this case, in order for court to grant bail pending appeal, court ought to also take into account
exceptional circumstances that must exist at this stage when the applicant is already a convict.

7. My lord, one of these conditions is whether the applicant has a fixed place of aboard
with the jurisdiction of this honorable court. My lord, the applicant states in paragraph
11 of his affidavit in support of the application that he is a resident of Nabweru, Wakiso
District where he lives with his wife and two children aged 1 and 3years which is in the
jurisdiction of this honorable court. My lord, Section 15 of the Trial Indictments Act
states that court may take into consideration whether the applicant has a fixed place of
abode within the jurisdiction of the court in an application for bail. My lord, on court
record is an introductory letter from the LC1 Chairperson of Nabweru, Wakiso District
annexed “I” who in this letter states that the applicant is a kibanja holder in this area on
which he lives with his wife and two children aged 1 and 3years. My lord, we therefore
pray that you find this ground fulfilled for the grant of the application.
8. My lord, the other condition is whether the applicant has sound sureties to undertake
that the accused shall comply with the conditions of his bail pending appeal. My
lord, according to paragraph 13 of the affidavit in support of this application the
applicant has sureties who are present in court and willing to undertake that the applicant
attends court whenever required. In the case of Albert Aganyira v Uganda Criminal
Miscellaneous Application No. 71/2013, court observed that proving that an applicant’s
sureties are substantial calls for documentary evidence of facts to prove the capacity of
the sureties to meet monetary obligations in case ordered to forfeit the bond and proof of
surety particulars that can be easily verified to the satisfaction of court. My lord, on court
record we have the National Identity Cards of the sureties and the introduction letters
from the L.C.1 Chairperson marked J and K respectively. My lord, the 1st surety is
Abigaba Seezi aged 42, a Ugandan, a brother to the applicant, a business man in Kikuubo
and a resident of Nabweru, Wakiso District. My lord, the 2 nd surety is Naiwumbwe
Sumayah aged 24, a Ugandan, a sister to the applicant, an advocate working with Lumu
& Co. Advocates, Kampala road and a resident of Nabweru, Wakiso District. My lord,
basing on the fact that both sureties are in active employment, they have the ability to
forfeit the bond in the event the applicant absconds. We therefore pray that this
Honorable court finds both sureties credible and substantial and grants the applicant
release on bail pending the hearing of his appeal.

9. My lord the applicant is suffering from type 2 Diabetes Mellitus, currently at severe level
(third level) and requires regular medical attention of insulin therapy which cannot be
adequately administered while in prison. My lord this is confirmed by paragraph 14 of
the applicant’s affidavit in support of this application. My lord under Section 15 of the
Trial on Indictments Act, grave illness is 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. My lord, annexure “L” of the affidavit
in support of the application provides for two medical reports, one from Mulago Referral
Hospital and another from the assistant commissioner prisons health services showing
that the applicant requires follow-up with a specialist ENT surgeon and monitoring which
services are absent in the Prison’s Medical Facility. Therefore we pray that this honorable
 court grants the applicant bail pending appeal considering the medical condition of the
applicant.

Your Lordship, we pray that this honorable court finds the above grounds sufficient to warrant
the grant of Bail pending appeal by this honorable court.

We so pray.

Dated at Kampala this________ day of_________________2024

________________________________
COUNSEL FOR THE APPLICANT

Drawn and Filed By;

M/S Green Advocates
Kampala Road