[2025] UGHC 504

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA **HOLDEN AT JINJA** CRIMINAL MISCELLANEOUS APPLICATION NO. 049 OF 2025 (ARISING FROM CRIMINAL COURT CASE NO. AA-95-2024)

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## IVAN WAVAMUNO aka ISAAC ::::::::::::::::::::::::::::::::::: **VERSUS UGANDA :::::::::::::::::::::::::::::::::::**

# **BEFORE: HON. LADY JUSTICE JOANITA BUSHARA**

## **RULING**

## **INTRODUCTION**

This application seeks the grant of bail to the Applicant pending the hearing and determination of his criminal case. The application is 20 brought under the provisions of **Articles 23(6)(a) and 28(3)(a) of the** Constitution of the Republic of Uganda, 1995 (as amended), Sections 15 and 16 of the Trial on Indictments Act, Cap. 23 as Revised Laws of Uganda, Rules 2 and 4 of the Judicature (Criminal Procedure) (Applications) Rules, S. I. No. 13-8, and Paragraph 6 of $\overline{25}$ the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022.


The Applicant, Ivan Wavamuno aka Isaac, is facing charges of 30 Aggravated Robbery Contrary to Sections 266 and 267(2) of the Revised Penal Code Act Cap 120. He is currently held on remand at Kirinya Remand Prison.

#### GROUNDS FOR THE APPLICATION 35

The Applicant lays down the following grounds in/support of his bail application:

1) That he is presumed innocent under Article 28(3)(a) of the

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**Constitution** and has no intention to plead guilty to the offence for which he is charged. He possesses a constitutional right to apply for bail, subject to the discretion of this Court, pending the hearing and determination of the charge against him.

- 2) That he has a fixed place of abode at Mutai Central Village, Kagoma Parish, Buwenge Sub-county, Jinja District, which falls within the jurisdiction of this Honourable Court. - 3) That he has presented substantial sureties within the jurisdiction of this Court who will ensure his compliance with any bail conditions, especially his attendance at trial, and he himself pledges to honour all bail terms set by this Honourable Court. - 4) That he is not facing any other pending criminal charges and there is no likelihood of him interfering with investigations or prosecution witnesses. - 5) That he has consistently been a law-abiding citizen and has never been charged with or convicted of any criminal offence. - 6) That he has no past criminal record, has never jumped bail, and is ready to strictly comply with any bail terms that this Honourable Court may impose. - 7) That the offence with which he is charged is bailable by this Honourable Court under Section 15 of the Trial on **Indictments Act**, and he is not required to prove exceptional circumstances to be granted bail. - 8) That in such applications, it is generally not necessary to delve into the merits of the case due to the presumption of innocence; however, the fact that the Applicant is listed as Accused Number 3 on the indictment and summary of the case warrants consideration. - 9) That the granting of this Application is in the interest of justice, equity, and fairness. - In support of his application, the Applicant provided the following 70 details regarding his substantial sureties: The/father, Bazaale

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**50**

**Simon,** is a businessman. One of the Applicant's brothers, **Monday Edison,** is an engineer by profession. The other brother, **Wavamuno** Saidi Stiphula, is also an engineer. The mother, Mirembe Aisha, is a businesswoman.

### **OPPOSITION TO THE APPLICATION**

This Application was opposed by the affidavit of **Mukiibi Lawrence**, State Attorney attached to the Office of the Director of Public Prosecutions, which this Court has considered in the determination of this Application.


## **REPRESENTATION**

The Applicant was represented by **Counsel Isabirye Gaster**, while the Respondent was represented by State Attorney Sseguya Ismail **Nsamba** from the Office of the Director of Public Prosecutions, Jinja.

### DECISION OF THE COURT

The right to apply for bail is a fundamental safeguard for individual liberty, explicitly protected by **Article 23(6)** and **28(3)** of the Constitution of the Republic of Uganda, 1995 (as amended), and further elaborated upon in Sections 15 and 16 of the Trial on Indictments Act, Cap. 25.

# Article 23 (6) of the Constitution of the Republic of Uganda, 1995 provides that:

"Where a person is arrested in respect of a criminal offence- (a) The person is entitled to apply to 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 an offence triable only/by the High Court, the person shall be released on bail on such conditions as the court considers reasonable, if the person has been remanded in custody for one hundred and eighty days before the case is committed to the High Court."


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#### Article 28 (3) of the Constitution (supra) provides: $\overline{5}$

"Every person who is charged with a criminal offence shall be presumed to be innocent until proven guilty or until that person has *pleaded guilty.*"

In Aganyira Albert v. Uganda Criminal Misc. Application No. 0071 $110$ of 2013, bail is defined as an agreement or recognizance between the accused, his sureties, if any, and the court, whereby the accused undertakes to pay a certain sum of money fixed by the court should he fail to appear and attend his trial.

The main purpose of bail is to protect one's right to personal liberty, which is premised on the presumption of innocence as provided in the Article above cited. (See: Col. (Rtd) Dr. Kizza Besigye v. Uganda, Criminal Application No. 83 of 2016).

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It is a well-established principle that applicants for bail should not be denied their liberty without just cause, nor should they be subjected to punishment through detention before their guilt has been proven by a competent court of law. While the Constitution guarantees the right to apply for bail, the ultimate decision to grant or deny it rests with the discretion of the Court. This discretion, however, must be exercised judiciously and is guided by Article $23(6)(a)$ of the Constitution, Section 15(1) of the Trial on Indictments Act, and the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022.

In assessing the likelihood of the applicant absconding, Section 16(4) of the Trial on Indictments Act provides relevant considerations. The primary concern for the Court is whether the applicant will return to answer the charges if released. This is assessed by examining two key aspects:

1. Whether the applicant has sound sureties within the Court's th/e applicant's jurisdiction, who undertake to ensure

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compliance with bail conditions; and

2. Whether the applicant has a fixed place of abode within the jurisdiction of the Court, which facilitates tracing the applicant in the event of abscondment.

Paragraph 15 of the Constitution (Bail Guidelines) provides further details on the factors to be considered when evaluating the 145 suitability of sureties. These factors include the surety's age, occupation, residence, character, past conduct, relationship with the accused, and any other pertinent information. Crucially, sureties are required to provide valid National Identity Cards and introductory letters from their respective LC I Chairpersons confirming their 60 ordinary residence. These documents are essential for verifying the sureties' identities and ensuring their traceability, thereby enabling them to effectively fulfill their commitment to the Court.

- In the case of Ojera Tom v Uganda Criminal Misc. Application 155 No. 0059 Of 2024, the Court stated that in considering a bail application, the court is required to assess whether the applicant is likely to abscond. In doing so, the court examines several key factors: whether the accused has a fixed place of abode within the court's jurisdiction or is ordinarily resident outside Uganda; whether the 160 accused has sound sureties within the jurisdiction who can undertake that the accused shall comply with the conditions of bail; whether the accused has, on a previous occasion, failed to comply with the conditions of bail when previously released; and whether there are other charges pending against the accused. Once the court 165 determines to grant bail, it must impose such terms as it considers reasonable. The test of reasonableness entails weighing all relevant factors before reaching a decision to grant or deny bail. - It is not disputed that the offence of Aggravated Robbery is a capital offence however the gravity of the offence with which the Applicant is 170 charged is not by itself a bar to the release of the Applicant on bail if he satisfies all the conditions required by court.

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## Whether the Applicant has a fixed place of abode.

In Monje Stephen Vs Uganda Criminal Miscellaneous Application 175 No.62 of 2023, a fixed place of abode connotes a place where a person resides with some degree of permanency e.g., a certificate of titles, land purchase agreements, utility bills, a letter from the clan head in case of customary ownership or communal land.

Paragraph 12 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions provides for contents of a bail application thus;

An application for bail shall contain the particulars of the applicant, *accompanied by-*

- (a) a copy of the applicant's national identity card, or passport or aliens identification card, or employment card, or *student identity card;* - (b) an introduction letter from the Local Council 1 chairperson *of the area where the applicant resides;* - (c) where applicable, asylum seeker or refugee registration documents issued by the Office of the Prime Minister; and - (*d*) *expounded grounds for the application.*

In this case, the Applicant has clearly stated in the affidavit in 195 support that his **fixed place of abode** is in Mutai Central Village, Kagoma Parish, Buwenge Sub-county, Jinja District, which is within the jurisdiction of this Court. Importantly, the Applicant attached a copy of an introductory letter from the local council one. The Applicant also attached a copy of a land sale agreement in support of 200 his father's residency at the stated address. The Court accepts this documentation as sufficient to establish a fixed place of abode.

## Whether the Applicant's sureties are substantial

The Applicant has presented four sureties, all of whom are close 205 relatives: his father, mother, and two brothers. They include;

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- 1) **Bazaale Simon:** Father of the Applicant, aged 52 years, permanent resident of the same address, a Driver and businessman. He provided his National Identification Number CM7300810IN9JG and telephone numbers +256752597856 and 210 +256782597856. Attached to the application are copies of his national identification card, an introduction letter, and importantly, a land sale agreement indicating his ownership of property within the jurisdiction. - 2) Mirembe Aisha: Mother of the Applicant, aged 47 years, $\sqrt{5}$ permanent resident of the same address, a businesswoman. She provided her National Identification Number CF78008104EUND and telephone number +256 700740450. Attached are copies of her national identification card and an introduction letter. - 3) Monday Edison: Biological brother of the Applicant, aged 38 220 years, permanent resident of the same address, an Engineer by profession. He provided his National Identification Number CM870151069AVD and telephone number +256 700263239. Attached are copies of his national identification card and an introduction letter. 225 - 4) **Wavamuno Saidi Stiphula:** Biological brother of the Applicant, aged 25 years, permanent resident of the same address, an Engineer. He provided his National Identification Number his national Attached copies $\overline{of}$ CM000120D8VCK. are identification card and an introduction letter.

All sureties have provided copies of their National Identity Cards and introduction letters from the LC1, as required by **Paragraph 15 of** the Constitution (Bail Guidelines).

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Paragraph 15 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions provides for determinants on the suitability of a surety thus;

(1) When considering the suitability of a surety, the court shall take into account the following factors-

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(a)the age of the surety;

(b)work and residence address o/ the surety;

(c) character and antecedents of the suretg;

(d)relationship to the accttsed person; and

(e) ang other factor as the court maA deem fit.

(2) Subject to sub-paragraph (1) the proposed suretg shall prouide do atment ary pro of including -

- (a)a copA of his or her national identitg card, passport or aliens identification card; - (b)an introduction letter from the Local Council 1 Chairperson of the area where the suretg is ordinarily resident; or - (c) asylum seeker or refugee registration docttments issu ed by the Office of the Prime Minister.

The requirement for a surety to be "substantial" as held in Odongo Bendict Isiah v. Uganda, High Court of Uganda Criminal Miscellaneous Application No. 78 of 2023, citing Halsbury's Laws of England, includes the capacity to influence, supen/ise, and control the applicant's behavior and ensure their appearance in court. 255

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In this case, I find the sureties presented sufficient because they are closely related with the Applicant in close proximity and are older than him, which convinces me that they can easily monitor and supervise him while on bail so that he complies with the bail terms which may be set by this Court.

The Applicant avers that he is facing no other pending criminal charges and has no past criminal record. He has also undertaken to abide by all bail terms that this Court may impose, a factor the Court

270 has noted.

While the offence charged is of a serious natute , as is the ase in all applications for bail in the High Court for offences only by it, s that such Section 15 of the Trial on Indictments Act clearly

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#### offences are bailable.

As noted in Ojera Tom v Uganda Criminal Misc. Application No. 0059 Of 2024, the Court must assess the likelihood of the applicant absconding by examining several factors, including a fixed place of abode and sound sureties within jurisdiction. The Applicant, in this case, has provided satisfactory information on both these fronts.

Having carefully considered the application, this Court is satisfied that the Applicant has met the conditions for the grant of bail.

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In the premises, bail will be granted upon the Applicant fulfilling the following conditions before they are released;

(a) The Applicant shall pay a cash bond of UGX 2,000,000/- (Two million shillings)

- (b) Each of the sureties shall sign a non-cash bond of UGX $5,000,000/$ = (Five million shillings) - (c) The Applicant shall register their full contact details and those of their sureties and LC Chairpersons with the office of the Regional Officer ODPP - (d) The Applicant is to report to the Deputy Registrar of this Cout on the last Thursday of every month starting July 2025 until further orders of this Court.

Dated at Jinja this .................................... $\ldots \ldots 2025.$ 300

**JOANITA BUSHARA JUDGE**

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