[2020] UGHC 21

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CR-CMA- 0110- 2019**

**NUWAMANYA JUSTUS--------------------------------------------------- APPLICANT Alias MUJASI**

## **VERSUS**

**UGANDA …………………………………….………….. RESPONDENT**

## **BEFORE HON. MR. JUSTICE SSEKAANA MUSA**

## **RULING**

This is an application for bail pending the trial of the applicant who is charged with the offence of murder. The application is brought under Section 14(1)(a) of the Trial on Indictment Act. Counsel for the applicant has applied for bail with an argument that the applicant is willing to abide by any bail conditions that may be imposed upon him.

That the applicant has been on remand since April 2019 and has satisfied Court that he will not abscond by presenting substantial sureties and stating his address of abode.

Counsel also argued that the applicant is presumed innocent and the constitutional presumption of innocence is available.

Counsel for the state opposed the application stating that the Applicant is charged with an offence of murder which is a grave offence. That surety no.2 is a resident of Kiruhura District who did not provide any documentation and prayed court finds him not substantial. She contended that if court finds him substantial, it should set stringent terms.

#### **DETERMINATION**

It has been set out in many cases that, the right to apply for bail is a constitutional right and is open to all categories accused person irrespective of the nature of the offence for which they are charged. And that the applicant under Article 23(6) (a) of the Constitution states that;

*(6) 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;…..*

The other applicable laws regarding grant of bail are sections 14(1) and 15(3) (a) of the Trial on Indictments Act. Section 14 provides as follows:-

### *(14) Release on bail.*

*(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 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 court on such a date and at such a time as is named in the bond.*

#### *(15) Refusal to grant bail.*

*(1) Notwithstanding section 14, the court may refuse to grant bail to a person accused of an offence specified in sub section (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.* - *(2) An offence referred to in subsection (1) is: –* - *(a) an offence triable only by the High Court;* - *(b) an offence under the Penal Code Act relating to acts of terrorism …*

*… … …*

- *(4) 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 place of abode within the jurisdiction of the court or is ordinarily resident outside Uganda;* - *(b) whether the accused has sound securities within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail;* - *(c) … … …* - *(d) whether there are other charges pending against the accused.*

Both Article 23 (6) (a), of the Constitution, and sections 14(1) and 15(3) (a) of the Trial on Indictments Act mandate Court to exercise discretion and grant bail; and to impose such terms and conditions as it considers reasonable for the grant of bail. The overriding principles for admitting a remand prisoner to bail are first, the presumption of innocence; which is that an accused person is presumed innocent, except where he or she has pleaded guilty to the charge, or the prosecution has established beyond reasonable doubt that such person perpetrated or participated in the offence charged. Second, there is need to afford an accused person adequate opportunity to prepare for his or her defence which obviously cannot be properly done when on remand. These principles are respectively enshrined in Article 28 (3) (a), and (c) of the Constitution.

In the converse, is the need for Court to determine whether in the circumstance of the case, the Applicant will turn up for trial or abscond when granted bail. There are well established guidelines Court should adhere to, in the exercise of its discretion, in considering the issue of bail. These include the nature or gravity of the offence the accused is charged with, the severity of the sentence that could result therefrom if conviction is secured, the antecedents of the Applicant in so far as they are known, whether or not the Applicant has a fixed place of abode

within the jurisdiction of the Court, the likelihood of the Applicant interfering with the prosecution witnesses, and whether the Applicant has presented substantial sureties. *See, Dr. Ismail Kalule & 3 Others V Uganda (Criminal Miscellaneous Applications 57, 58, 59, & 60 of 2010) [2011], His Majesty Omusinga Mumbere Wesley vs Uganda [Crim. Misc Application No. 75/2016]*

In my estimation, the applicant fulfills most of those conditions. What is important is this applicant has in his affidavit shown that he has a fixed place of abode which is Kigabagaba Kabugu Kabuyanda Isingiro District. He has also presented substantial sureties, Akampumuza Frank aged 39years a businessman and farmer of Telephone contact 0756 157325 and Mubangizi Wilbrod Gaddy a secondary school teacher at Kanyamwizi Secondary school of Telephone contact 0705 284461 all residents of Kigabagaba Kabugu Kabuyanda Isingiro District. Their relationship to him would convince court that they would be in a position to compel him to attend the trial.

Therefore, I am allowing this application. I am granting bail to the applicant on the following terms and conditions;

- 1. He will pay shs. 5,000,000/= in cash to Court. - 2. The sureties shall execute a non cash bail of shs. 15,000,000/= each. - 3. The applicant is to report to the Registrar of this Court every 15th day of the month for the entire duration of his trial with effect from 15/02/2020.

I so order

SSEKAANA MUSA JUDGE 24th January 2020