[2024] UGHCCRD 65

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(CRIMINAL DIVISION)**

**HCT-00-CR-CM-0273-2024**

**(Arising from Makindye Court Criminal Case No. 89 of 2024)**

**CANODIA JOSEPH::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

**VERSUS**

**UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

**RULING**

**BEFORE JUSTICE GADENYA PAUL WOLIMBWA**

Canodia Joseph, hereinafter called the Applicant, has applied to be released on bail. The Applicant is charged with Aggravated Robbery c/s 285 & 286 92) of the Penal Code Act, which is a bailable offence. It is alleged that Canodia Joseph and others still at large during the night of 28th May 2024 at Kirinda Zone, Busabala Ward, Makindye Ssabagabo Municipality in Wakiso District, robbed SP Baguma Fredrick of a Hisense flat screen TV valued at 1,200,000/- and a handbag containing cash 670,000/- all totaling to 1,870,000/- the property of Walugembe Rogers, and at immediately before or immediately after the time of the said robbery, threatened to use a deadly weapon to wit a panga on the aid SP Baguma Fredrick.

The Applicant’s bail application is premised on the following grounds:

1. He is charged with the offence of Aggravated Robbery c/s 285 and 286 of the Penal Code Act, which is bailable; 2. He has a constitutional right to apply for bail; 3. He has a fixed place of abode and is a resident of Busabala Ward, Masajja Division, Makindye Ssabagabo Municipality, Wakiso district within the jurisdiction of this Honourable Court, and he is willing to abide by any bail conditions that may be imposed upon him by this Court, and he shall not abscond; 4. He has no other pending charges against him in any other court; 5. He has substantial sureties, all residents within the jurisdiction of this Honorable court who are ready and willing to stand for him and who shall be produced during the hearing of this Application and 6. It would be in the interest of substantive justice if the Applicant is granted bail.

The grounds of the Application are supported by the Applicant's Affidavit. The Applicant has deponed, saying before his arrest, he was a security guard at a construction site in Kirinda Cell. He was arrested and arraigned in the Chief Magistrates Court, Makindye, and thereafter remanded in custody. He has able and substantial sureties to wit Otikwende Aaron, Okumu Quirine and Apio Josephine Otikwende, who are ready and willing to guarantee his continued court attendance. He has also deponed that he is the family's sole breadwinner and will not abscond if released on bail.

In an affidavit sworn by Kansiime Drear, the Respondent opposed the bail application. The Respondent contends that the Applicant’s sureties are insufficient to underwrite his bail application. The Respondent argued that the Applicant will likely abscond since he is charged with a capital offence.

M/s Cr. Amanya Advocates & Solicitors represented the Applicant. Ms Apolot Joy Christine, a Senior State Attorney, represented the Respondent.

The law on grant of bail is well known. Article 23 (6) of the Constitution grants every accused person the right to apply for bail. The court is given discretion whether to grant or deny bail. However, the court must exercise its discretion judiciously. The law requires the judicial officer to act fairly and equitably in exercising their judicial discretion.

In exercising the discretion whether to grant bail, the court is guided by the following factors, namely;

1. Whether the accused person will abscond or not. 2. Whether there are sufficient guarantees to underwrite the accused’s bail application. 3. Whether the greater interests of justice favour or disfavour the release of the accused persons on bail. 4. The court must balance the accused’s right to be presumed innocent until proven guilty and his right to personal liberty vis avis the right of the public to live in a secure and peaceful environment. The latter right encompasses the state's obligation to prosecute those who violate the law.

Section 16(4) of the Trial on Indictment Act provides that in determining whether the accused person is likely to abscond, the court shall take into account the following factors-

1. Whether the accused has affixed place of abode; 2. Whether the accused has sound sureties to undertake that the accused shall comply with the conditions of his bail; 3. Whether the accused has on previous occasions, when released on bail, failed to comply with the conditions of his bail and 4. Whether other charges are pending against the accused.

Guideline 13 of the Bail Guidelines, which is a codification of the Constitutional, Statutory and case law on bail, is equally instructive in guiding courts in determining whether to grant bail.

The Applicant contended that he has exceptional circumstances under section 16(3) of the Trial and Indictment Act to be released on bail. He submitted that he is the sole breadwinner of his nucleus and extended family and that, on this account, he should be released on bail under exceptional circumstances. The accused cited the case of Foundation for Human Rights Initiatives Vs AG Constitutional Appeal No. 3/2009, where the court held that the Courts should not restrict themselves to only considering exceptional circumstances under S 16 (3) of the Trial on Indictment Act or succinctly put that exceptional circumstances are more than what is listed in the Trial on Indictment Act.

S 16 (3) of the Trial on Indictment Act provides that exceptional circumstances in section 16(1)(a) means:

1. Grave illness certified by a medical officer of the Prison or any other place where the accused person is detained. 2. A Certificate of no Objection signed by the Director of Public Prosecutions. 3. Infancy or advanced age of the accused person.

The definition of exceptional circumstances in Subsection 3 above is presented in mandatory language and does not permit the court to consider additional circumstances. Therefore, since being the sole breadwinner is not included under Subsection 3, the applicant cannot be granted bail based on exceptional circumstances. However, the failure to demonstrate an exceptional circumstance does not prevent the applicant from being granted bail, as established by the court in the Foundation for Human Rights Initiative case and by the promulgation of the Constitution, which made bail discretionary. Under the new constitutional framework, the applicant must convince the court that they will not abscond and that granting bail is in the interests of justice.

The accused must prove that they will not flee if granted bail. To meet this requirement, the accused needs to demonstrate that they have a fixed place of residence and reliable sureties. A fixed place of residence is defined as a home where the accused lives and can be located. This is a place where the accused has established roots and connections. Evidence of a fixed place of residence can include a land title, a license, a tenancy agreement, or any other documentation proving the accused's ownership of the property.

The accused submitted a letter from the LCI Chairperson of Kirinda Cell, stating that the accused is a resident of the area. The Chairperson indicated that the accused is an Askari at a construction site for Engineer John Owere and has been employed there for two years. While the LCI Chairperson claimed that the accused has a fixed place of abode in the area, this assertion only pertains to the accused's employment. However, the LCI Chairperson did not tell the court about the accused’s place of abode. Even if I were to consider the construction site as the accused’s place of abode, sites are inherently fluid, with workers often coming and going and can hardly meet the test of a fixed place of abode.

Additionally, construction sites are temporary. Moreover, in this case, Engineer Owere, the site owner, did not provide a letter guaranteeing the accused's continued employment and stay at the site indefinitely. Given that the accused is employed at Engineer Owere's pleasure, it would be risky to conclude that the accused has a fixed place of residence.

The accused person is required to present sureties before they can be granted bail. Guideline 15(1) of the Bail Guidelines provides that before the court approves a surety, it shall, among other factors, consider the age of the surety, the work and residence address of the surety, the character and antecedents of the surety, the relationship to the accused person and any other factors the court may deem fit.

The accused presented Otikwende Aaron, Okumu Quirine, and Apio Josephine Otikwende as sureties.

Mr. Otikwende Aaron resides in Ochieng II Zone, Nansana Municipality. The area LCI Chairperson described him as a longstanding, law-abiding resident. However, the Chairperson did not provide the court with information about Otikwende’s landlord or occupation.

Mr. Okumu Quirine is a resident of Kisasizi Urban Village, Kabalagala. The Chairperson of his area LCI described him as a "hotellian" working in Nakasero. However, the Chairperson’s letter did not specify whether the surety has a fixed place of residence in the village, and the details regarding what he does for a living are insufficient.

The Area LCI Chairperson of Kisasizi Urban Village Council I, Kabalagala, introduced Ms. Apio Josephine Otikwende. Although she was described as a law-abiding resident, no information was provided about her place of residence or occupation. Without these details, I cannot ascertain whether this surety is substantial.

In conclusion, the applicant's sureties were rejected because they did not meet the standards established in the Bail Guidelines.

Is it in the interests of justice to release the accused on bail? The accused person submitted that he is charged with a bailable offence and, therefore, qualifies to be released on bail. The Respondent submitted that the accused is a flight risk. He is charged with a capital offence, so the temptation to escape justice is great. The Respondent advised the court not to release the accused on bail.

Bail is based on a *tripartite* trust system between the accused, the prosecution and the court. At the core of this trust is the obligation by the accused to provide additional guarantees, apart from their word, that they will not abscond. The guarantees include substantial sureties capable of underwriting the accused’s bail. The sureties must be capable of supervising and compelling the accused to attend court. But most importantly, substantial sureties provide additional guarantees that fortify the accused’s word that he will not abscond. In this case, the accused does not have substantial sureties, and it is not in the interest of justice to release him on bail.

**Decision.**

The Bail Application is dismissed because of the following reasons:

1. The accused does not have substantial sureties; 2. The accused does not have a fixed place of abode, and 3. The accused does not have sufficient guarantees that he will not abscond if granted bail.

It is so ordered.

Gadenya Paul Wolimbwa

**JUDGE**

6th November 2024

The ruling was delivered in open court in the presence of the parties and Najjib Kagwa, Court Clerk.

Gadenya Paul Wolimbwa

**JUDGE**

6th November 2024