[2023] UGHCCRD 37

The Republic of Uganda

In The High Court of Uganda in Soroti

Miscellaneous Application No. 0031 of 2022

(Arising out from Criminal Case No. Bukedea-00-CR-AA 001/2022, *Case Police CRB/MCB/TOR NO. 676 of 2021)*


Versus

**Respondent** Uganda :::::::::::::::::::::::::::::

## Before: Hon. Justice Dr Henry Peter Adonyo

## **Ruling**

1. Background:

This is an application brought under Article 23 (6) (a) and Article 28 (3) of the Constitution of the Republic of Uganda and section 14 (1) of the Trial on Indictment Act for orders that the applicants/accused persons herein be released pending hearing and final determination of their case.

The grounds of this application as set out in the application and in the supporting affidavits and are briefly that the accused persons are

presumed innocent until proven guilty, that the applicants were remanded by the Chief Magistrate Court of Bukedea on the 6^th day of January 2022 and have been committed to the High Court for trial.

That the applicants have a permanent place of abode at Bukedea District within the jurisdiction of this court and will not abscond if released on bail and further undertake to avail themselves to court whenever summoned to trial.

That the offence for which the applicants are jointly charged is bailable by this court, that the applicants have no past criminal record or any other charge pending against them. That the applicants each have two substantial sureties who understand their obligations towards this Honourable court and lastly that one Olemukan Moses, the applicants coaccused was released on bail on the 4^th day of March 2022.

The applicants through their counsel effected service on the respondent on the 3^rd day of November 2022 and an affidavit of service is on court record. The respondent did not make any reply to this application. The application thus proceeded $ex$ parte.

2. Submissions:

Counsel for the applicants, Mr. Amodoi Samuel of M/s Amodoi Associated Advocates submitted that in the first place, this application is not opposed by the respondent as it did not file an affidavit in reply despite being served with the application.

Counsel for the applicants further submitted that it is trite law that parties proceed on the basis of their pleadings and are to that extent bound to their pleadings as was held in *Interfreight Forwarders versus East* African Development Bank [1990-1994] EA 117.

Counsel continued further that the effect of not filing an affidavit where the law requires was held to be a fatal omission in *Agro Supplier Ltd* Vs Uganda Development Bank HCCS No. 379/2005.

Accordingly, Counsel contended that in the absence of an affidavit in reply by the respondent, then the implication was that there is no rebuttal to this bail application and the facts and averments in the application and supporting affidavits are not denied. He therefore prayed that this Honourable court should proceed and consider the merit or not of this application *ex parte*. I agree.

Counsel further submitted that the applicants are presumed innocent until proved guilty or otherwise as provided under Article 28(3) of the Constitution and section 14 of the Trial on Indictment Act empowers the High Court at any stage of proceedings to release the accused on bail. Counsel additionally stated that the right to apply for bail and the powers of the High Court to grant bail have overtime been interpreted and reemphasized by courts of judicature with The Supreme Court decision of DPP vs Col (Rtd) Dr. Kizza Besigye Constitutional Reference No. 20 of 2005 toping all that wherein it was held that an accused had the right to apply for bail with the court having the discretion to grant or refuse to grant bail.

Counsel additionally submitted that section 15 of the Trial on Indictment Act provides that notwithstanding the provisions of section 14 the court may refuse to grant bail if an applicant does not prove exceptional circumstances and confirm that he/she will not abscond when released on bail.

However, counsel went on to point that proof of exceptional circumstances is no longer mandatory as was held in *Foundation for*

## Human Rights Initiative V. A. G constitutional petition No. 20 of 2006.

In relation to abscondment, counsel submitted that the applicants will not abscond their trial for they have fixed places of abode within the jurisdiction of this honourable court and that the respondent, by not making a reply to this application, by that act, has not objected to the same.

Furthermore, counsel for the applicants submitted that each of the applicants had two sureties to whom he has explained their role which they appear to have understood in addition to their having letters of introduction from the L. C.1 of their places of abode and that they had also put on record and photocopies of their National IDs.

Individually according to counsel each of the applicants had provided sureties as follows;

The 1^st applicant presented Amuron Sarah Margaret and Kulume Jesca, his sisters, both resident of Akanyuko Village, Kapaang Parish, Kachumbala Sub-county in Bukedea District.

The 2^nd applicant presented Icumar Charles, his son and Aanyu Jenifer Loy his sister, both resident of Akanyuko Village, Kapaang Parish, Kachumbala Sub-county in Bukedea District.

The 3^rd applicant presented Omongot Bendicto his son and Ijera Stella his wife, both resident of Akanyuko Village, Kapaang Parish, Kachumbala Sub-county in Bukedea District.

The 4^th applicant presented Among Caroline and Apio Hellen, his sister, both resident of Akanyuko Village, Kapaang Parish, Kachumbala Subcounty in Bukedea District.

The 5^th applicant presented Anyait Beatrice and Ingerep Grace, both residents of Akanyuko Village, Kapaang Parish, Kachumbala Sub-county in Bukedea District.

That all the sureties had introductory letters from the LC1 Chairperson and copies of their National IDs were attached to the application and such this court finds them substantial.

Counsel additionally submitted that the applicants co-accused Olemukan Moses was released on the 4^th day of March 2022 and the court ruling was attached to the application.

He added that in bail applications like the current one courts should lean in favour of and not against the liberty of an accused as long as the interest of justice will not be prejudiced as was held in **Kemigisa Adrine** v Uganda Crim. Application No. 97 of 2019.

That the applicants herein do not know the witnesses that the respondent intends to rely on and that the respondent has not adduced evidence by way of affidavit to prove that the applicants will interfere with the witnesses or investigations and further that the mere fact that the applicants have been committed to the High Court presupposes that investigations have been concluded with the applicant awaiting trial whose date is uncertain.

Counsel finally submitted that the applicants were praying for a non-cash bail and invited court to follow the decision in *Hon. Godi Akbar vs* Uganda Crim. Application No. 20 of 2009 and Col (Rtd) Dr. Kizza Besigye vs Uganda Criminal Application No. 83 of 2016 wherein court granted the applicants a non-cash bail despite being indicted for murder and treason charges, respectively and that all and each surety be bonded on non-cash terms.

## 3. Decision of Court:

The law on bail pending trial is that an accused person is entitled to apply for bail regardless of the offence with the right to apply for bail provided for under Article 23(6)(a) of the Constitution which was well elucidated in Uganda Vs Kiiza Besigye; Const. Ref No. 20 of 2005 but the grant or not of bail by court is discretional.

For avoidance of doubt, I do reproduce the relevant legal regimes in relations to bail as hereunder;

a. Article $23(6)(a)$ of the Constitution provides:

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. Section 14(1) of the Trial on Indictment Act provides that;

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 recognisance 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 and at such a time as is named in the bond.

c. Article $28(3)(a)$ of the Constitution provides that;

Every person who is charged with a criminal offence shall— (a) be presumed to be innocent until proved guilty or until that person has pleaded guilty.

The law further gives parameters under which bail may be granted;

d. Specifically, section 15(1) of the Trial on Indictment Act provides that;

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 on bail; and

(b) that he or she will not abscond when released on bail.

e. <u>Section 15(3)</u> of the <u>Trial on Indictment Act</u> provides;

"In this section, "exceptional circumstances" means any of the following-

(a) 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;

(b)a certificate of no objection signed by the Director of Public **Prosecutions; or**

(c) the infancy or advanced age of the accused."

f. Section $15(4)$ of the Trial on Indictment Act provides

In considering whether or not the accused is likely to abscond, the court may take into account the following factors—

(a) whether the accused has a fixed abode within the jurisdiction of the court or is ordinarily resident outside **Uganda;**

(b) whether the accused has sound sureties within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail;

(c) whether the accused has on a previous occasion when released on bail failed to comply with the conditions of his or her bail; and

(d) whether there are other charges pending against the accused.

With the above legal regime in mind, I will now turn to this application.

I have duly considered this application, the affidavits and all the attachments thereto.

I note that the applicants in the instant application are not relying on any exceptional circumstances but rather are relying on having fixed place of abode and having substantial sureties.

They are further rely on the fact that their co-accused was released on bail on the $4$ ^th day of March 2022.

In the determination of whether or not the applicants satisfy the requirements to be granted or not bail, I would first consider whether any or each of them are likely to abscond and not turn up for trial.

Section 15(4) of the Trial on Indictment Act requires court to consider whether an applicant for consideration for bail has a fixed place of abode within the jurisdiction of the court and has sound sureties also within the jurisdiction of the court.

From the introductory letters made by one Okudotum Robert an LC1 Chairperson of Akanyuko Village for each of the applicants, I am satisfied that each of the applicants have permanent residences in Akanyuko

Village, Kapaang Parish, Kachumbala Sub-county in Bukedea District, given the fact that the LC1 Chairperson is the first level of governmental authority to know as a fact the residency of each of the applicant.

Furthermore, the sureties presented by each of the applicant are each considered substantial given the fact that they are all residents of the same village of Akanyuko Village where each of the applicants come from and are indeed close to the applicants as blood relatives, which fact imply that each of them have a measure of authority over each of the applicants and thus should able supervise each of them to ensure that each of them does not abscond from their trial.

Besides, I have taken note of the fact that the respondent, which is the prosecutor in the case for which each of the applicant is charged with has elected not to make a reply to this application, leaving this court to not be bestowed with any evidence on record to the contrary to the averments made by the applicants.

This application is thus considered on its own merit and on the basis of the law relating to bail, the facts as pleaded and the evidence attached only.

While this court is alive to the fact that the offence of murder is a very serious one that carries the maximum sentence of death, it still remains the anchor of the Uganda criminal justice law that an accused person is presumed innocent until proven guilty. That presumption overrides all other considerations and must be judicially carried out in a free and democratic society like Uganda.

Accordingly, on the basis of the evidence put forward before this court, I am satisfied that this is a case where the court should exercise its

discretion and grant bail to each the applicants. Bail is thus granted on the basis of the conditions set hereunder.

- 4. Orders: - 1) Bail is granted. - 2) Each of the applicant to deposit Cash of Shs. 1,000,000/- - 3) Each of the two sureties is bound in the sum of Shs. 5,000,000/- not cash. - 4) Each of the Applicant and each of their sureties to provide to the registrar of this court certified copies of their national identity cards and one (1) of recently taken black and white passport photo. - 5) Each of the Applicant to report to the Registrar of this Court once a month on the first Thursday of each month with effect from $10/03/2023$ until otherwise directed by this court.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

10^th February 2023