[2023] UGHCCRD 31

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL CRIMINAL MISC APPLICATION NO. 011 OF 2023 (ARISNG FROM FPT-00-CR-AA-121-OF 2022, CRB-276-2022) ALINDA RAYMOND :::::::::::::::::::::::::::::::::::::::APPLICANT/ACCUSED VERSUS UGANDA::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT/PROSECUTOR BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

### **RULING**

#### **Introduction**

This is an application for bail by Notice of Motion under Article 23(6), 28(3) (a) and 139(1)) of the constitution of the Republic of Uganda, Section 14(1) and 15 (4) of the Trial on Indictments Act and Rules 2 & 3 of the Criminal Procedure (Application) Rules. The applicant is charged with Aggravated defilement c/s 129 of the Penal Code Act Cap 120 as amended.

The grounds of the application are set out in the affidavit of the applicant, the substance of which is that;

- a. The offence of Aggravated defilement that the applicant is charged with is bailable by this court - b. The applicant is 18 years and a Senior Four student at Kyarusozi Secondary School and was arrested and remanded in December 2022. - c. The applicant has substantial sureties within the jurisdiction of the court to guarantee his availability for trial - d. The applicant has a permanent place of abode at Mwokya Village, Kiburara Parish, Hakibaale Sub County in Kabarole district

- e. The applicant suffers from serious cough, chest pains, abdominal pains and difficulty in breathing which are associated with Asthma which is difficult to manage while he is in prison. - f. That the applicant will not interfere with investigations or evidence since the same are complete and the applicant is committed for trial.

## **Representation and hearing.**

The applicant is represented by Mr. Rwabwogo Richard of Rwabwogo & Co. Advocates while the state is unrepresented. The state has not filed a reply to this application. There is an affidavit of service to indicate that the application was duly served on the Office of the DPP. Counsel for the applicant has filed written submissions that have been useful in preparing this ruling.

#### **The Law**

Persons accused of criminal offences have a right to apply for bail by virtue of **Article 23(6) (a) and 28(3) of the Constitution** of the Republic of Uganda.

## **Article 23(6) (1) of the Constitution** provides

"*No person shall be deprived of personal liberty except in any of the following cases".*

*1. Where a person is arrested in respect of a criminal offence-.*

*a) the person is entitled to apply to the court to be released on bail and the court may grant that person bail on such conditions as the court considers reasonable;*

*b) ………*

*c) In the case of 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 – see also* - *Tumushabe vs Attorney General constitutional petition No. 6 of 2004.*

**S.14 (1) Trial on indictment Act** provides;

*"(1) The High Court may at any stage in the proceedings release the accused person on bail, that is to say, on taking from him or her a regnisance consisting of a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the case, to appear before the court on such a date at such a time as is named in the bond"*

## **S. 15 (1) TIA is on refusal to grant bail**.

*"(1) Notwithstanding section 14, the court may refuse to grant bail to a person accused of an offence specified in subsection (2) if he or she does not prove to the satisfaction of the court*

*a) That exceptional circumstances exist justifying his or her release of bail; and*

*b) That he or she will not abscond when released on bail"*

(3) reads as follows:-

"in this section, "exceptional circumstances" means any of the following; *(k) 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;*

*(1) A certificate of no objection signed by the Director of Public Prosecutions; or The infancy or advanced age of the accused"*

However, the grant of bail is discretionary to the court. See *Uganda Vs Kiiza Besigye; Constitutional Refrence No. 20 of 2005***,** by virtue of section 14 and 15 of the TIA, a person indicted may only be released on bail if he or she proves to the satisfaction of the court that exceptional circumstances do exist to warrant his being released on bail. The circumstances which are regarded as exceptional include grave sickness, infancy or old age.

## **Consideration of Court**

Counsel for the applicant submitted on each ground of the application. He submitted among others that the applicant has a fixed place of residence and has substantial sureties within the court's jurisdiction.

The sureties presented by the applicant are;

- a) Birungi Zuura, mother of the accused, 0772960601, a resident of Mwokya Village, Kiburara Parish, Hakibaale Sub County in Kabarole district. Introduction letter and National ID seen and copies on record. - b) Asaba William, Maternal Uncle to the applicant, 0781818912, a resident of Kisenyi Cell, Nyakitojo Ward, Kyarusozi Town Council, Kyenjojo district. Introduction letter and National ID seen and copies on record - c) Kabasinguzi Elizabeth, Maternal Aunt to the accused, 0774264281, a resident of Mugoma A Cell, Butebe Ward, Fort Portal North division, Fort Portal City. Introduction letter and National ID seen and copies on record

What would amount to a substantial or sufficient surety is quite relative, and would of necessity depend on the circumstances of each case. Nonetheless, in **Odoki, B. J,** *'A guide to Criminal Procedure in Uganda'***, LDC Publishers, 2006 (3rd Edition) at p.91** it was opined:

*"The court should inquire into the worth and social position of sureties. The sureties must have the means to answer for the sum involved (recognizance) and should be persons of some social standing in the community."*

I do take the foregoing parameters into account as I evaluate the substantiality of the sureties provided. Further, in my view, the over-riding consideration in an application such as the present one is that the terms of bail granted should be such as would ensure the grantee's compliance with the bond reporting terms as is implicit in section 14(1) of the TIA, as well as his/ her appearance for the substantive trial.

This court is satisfied that the applicant has a permanent residence within the jurisdiction of the court, there are substantial sureties to guarantee that the accused will attend his trial when called upon. There is no evidence that once released on bail, he will interfere with the investigations of the case. There are also no other criminal charges pending against the applicant.

The court is required by the **Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2021 Paragraph 12** to consider among others the following before granting bail; the gravity of the offence; the nature of the offence; the antecedents of the applicant so far as they are known; the possibility of a substantial delay of the trial; the applicant's age, physical and mental condition.

The applicant is charged with Aggravated defilement, an offence which is by all standards grave. The law stipulates that in order to be released on bail, the applicant must prove to the satisfaction of court an exceptional circumstance (see **section 15(3) of the Trial on Indictments Act**,

*Florence Byabazaire vs Uganda HCMA No. 284 of 2006***.** No exceptional circumstances have been pleaded by the applicant.

This court, of course, has in the exercise of its overall jurisdiction, powers to grant bail, even in absence of an exceptional circumstance being proved. Court does so through the judicial exercise of its discretion. The test this court has set is that: *"The burden is upon the applicant to satisfy court by putting forth before court a set of facts, beyond the ordinary considerations for bail, upon which the court can act, in the exercise of its discretion, to admit the applicant to bail" (See:* High Court of Uganda at Gulu Miscellaneous Application Number 0037 of 2008*: Bongomin Richard Akal Vs Uganda, unreported)*.

It is trite that bail is an important judicial instrument to ensure individual liberty and the main reason for granting bail is to ensure that the applicant appears to stand trial without the necessity of being detained in custody in the meantime. The effect is to release him from physical custody while he remains under the jurisdiction of the law and is bound to appear at the appointed place and time to answer the charge against him.

I am satisfied with the sureties that he presented in court as persons capable of guaranteeing his attendance of the trial, when the case is eventually fixed for trial. In the circumstances, I do find merit in the application and hereby order the Applicant to be released on bail on the following terms;-

- i. The applicant is to execute a cash bond of UGX 4,000,000/= - ii. Each of the sureties is to execute a non-cash bond of UGX 10,000,000/-

iii. The applicant is to report to the Assistant Registrar of this court on the first Tuesday of every month until the commencement of his trial or further orders of the court and to the officer in charge of criminal investigations Fort Portal police station on the last Friday of every month until the commencement of his trial or further orders of the court.

This cash will be refunded in accordance with **Paragraph 30 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2021.**

In the circumstances, this application is allowed. I order the release of the applicant on bail subject to satisfaction of the conditions set out above.

I so order.

Dated at Fort Portal this 28th day of April 2023. .

**Vincent Emmy Mugabo Judge**

The Assistant Registrar will deliver the ruling to the parties

**Vincent Emmy Mugabo Judge** 28th April 2023.