The High Court has reaffirmed that bail pending appeal is not automatic and must meet a higher threshold than bail pending trial

Waboga David
Jul 15
5 min read

Introduction

Bail pending appeal is a discretionary remedy that remains a subject of legal debate in Uganda’s criminal justice system. While the Constitution of Uganda under Article 23(6)(a) guarantees the right to apply for bail, this right applies primarily to persons awaiting trial.

For convicted persons, bail pending appeal is not a constitutional entitlement but a judicial discretion exercisable under specific statutory provisions, including Section 40(2) of the Criminal Procedure Code Act, Section 205 of the Magistrates Courts Act, and Section 132(4) of the Trial on Indictments Act.

These provisions empower appellate courts—including the High Court, Court of Appeal, and Supreme Court—to admit appellants to bail in appropriate circumstances, subject to legal thresholds.

In the landmark case of Arvind Patel v Uganda, the Supreme Court set out guiding considerations for granting post-conviction bail, including the nature of the offence, likelihood of appeal success, and compliance with previous bail terms. However, the constitutional legitimacy of bail pending appeal was later questioned by Justice Dr. Esther Kisaakye in Magombe Joseph Joshua v Uganda, who argued that the 1995 Constitution does not recognize the right to bail post-conviction.

That view was firmly rejected by a panel of the Supreme Court in Magombe (Criminal Reference No. 13 of 2020) and Nakiwuge Racheal Muleke v Uganda, which held that while the presumption of innocence is extinguished upon conviction, courts retain statutory discretion to grant bail pending appeal in exceptional and unusual circumstances.

This background is critical in understanding the High Court’s recent ruling in Nuwagaba Tarasisio v Uganda (HCT MA No. 30 of 2025). In this case, the Court was called upon to decide whether a convict serving a 20-month sentence for assault occasioning actual bodily harm had presented adequate justification—both under Arvind Patel and the law—to warrant release pending determination of his appeal.

📝 Background

Nuwagaba Tarasisio was convicted on 11 February 2025 by His Worship Buhungiro Benjamin for assault occasioning actual bodily harm under section 219 of the Penal Code Act. He was sentenced to 20 months' imprisonment and ordered to pay compensation of UGX 250,000/=.

Dissatisfied, the applicant appealed the conviction and sentence and simultaneously applied for bail pending appeal under Article 23(6)(a) of the Constitution and section 40(2) of the Criminal Procedure Code Act.

⚖️ Key Legal Issues

Whether the applicant fulfilled the conditions for bail pending appeal as set out in Arvind Patel v Uganda, Supreme Court Criminal Application No. 1 of 2003.
Whether the applicant demonstrated any exceptional or unusual circumstances to warrant release during appeal.

📚 Court’s Reasoning

The court reaffirmed the principles laid down in Arvind Patel v Uganda, including the applicant’s character, whether the offence involved personal violence, the prospects of success of the appeal, and potential delay in determination.

The applicant was convicted of a violent offence—beating a suspected thief resulting in harm—falling short of the Arvind Patel criteria.

The applicant failed to provide evidence of any “exceptional circumstances” as defined under section 16(3) of the Trial on Indictments Act, such as grave illness, infancy, advanced age, or a certificate of no objection from the DPP.

The court observed that the applicant’s submissions were tailored as though it was a bail pending trial application, not bail pending appeal, thus failing to meet the stricter evidentiary threshold post-conviction.

Finding

The Court extensively examined whether the applicant satisfied the criteria laid down in Arvind Patel, which include:

Character of the applicant
Whether the applicant is a first offender
Whether the offence involved personal violence
Likelihood of success of the appeal
Possibility of delay in determining the appeal
Compliance with previous bail conditions, if any

In applying these factors, the Court made the following observations:

✅The applicant was a first-time offender and had a fixed place of abode, which were favourable considerations.

❌ However, the offence involved personal violence, as the applicant was convicted of beating a suspected thief and causing actual bodily harm, supported by medical evidence (Police Form 3). This weighed heavily against the applicant.

❌ There was no clear indication that the appeal had a strong likelihood of success. Though the judgment and memorandum of appeal were attached, the Court did not find persuasive grounds to support a conclusion of potential success.

✅ The Court acknowledged that short custodial sentences (two years or less) pose a risk that convicts may serve their entire term before an appeal is determined, which could favourably influence a bail decision.

❌ Nevertheless, the totality of circumstances did not satisfy the Arvind Patel threshold. The violent nature of the offence and absence of persuasive merit in the appeal diminished the applicant’s prospects.

The applicant partially satisfied some conditions (first offender, short sentence) but ultimately failed to meet the holistic test under Arvind Patel, particularly due to the violent nature of the offence and weak prospects of appeal success.

2️⃣ Whether the applicant demonstrated any exceptional or unusual circumstances to warrant release during appeal

The Court noted that once a person is convicted, the presumption of innocence is extinguished, making the threshold for bail pending appeal higher than bail pending trial. The applicant must prove exceptional or unusual circumstances as clarified in:

Magombe Joseph Joshua v Uganda, Supreme Court Criminal Reference No. 13 of 2020, where it was held that post-conviction bail depends on "exceptional and unusual circumstances" due to the loss of the presumption of innocence.

Section 16(3) of the Trial on Indictments Act, which provides examples of exceptional circumstances:

(a) Grave illness incapable of being treated in custody

(b) Certificate of no objection from the DPP

Upon review, the Court found:

❌ No medical certificate indicating grave illness;

❌ No certificate of no objection from the Director of Public Prosecutions;

❌ The applicant was not of advanced age or an infant;

❌ The application and submissions focused on generic bail rights and did not distinguish the stricter requirements for post-conviction bail.

Furthermore, the Court agreed with the DPP's submission that the applicant had failed to comply with Guideline 19 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022, which outlines considerations specific to bail pending appeal.

The applicant did not prove any exceptional or unusual circumstances required under Ugandan law and precedent to justify bail pending appeal.

🧑🏽‍⚖️ Ruling

“In conclusion, I find that the applicant has not put forward, by way of affidavit evidence, conditions to justify this court to exercise its discretion to grant bail pending appeal. I dismiss the application for bail pending appeal.”