[2024] UGHC 565

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

## **CRIMINAL MISC. APPLICATION No. 079/2023**

# **CRIMINAL SESSION CASE No. AA - 030/2023.**

## 5 **(ARISING FROM CRIMINAL CASE – CRB No. 376/2023: PADER).**

| | 1.<br>ODOKONYERO MWAKA CHRISTOPHER | (A1) | |----|------------------------------------|------| | | 2.<br>OKENY FRANCIS | (A2) | | | 3.<br>LAM MARINO | (A3) | | | 4.<br>OCAYA FRANCIS | (A4) | | 10 | 5.<br>KITARA LAPALABEK | (A5) |

## **APPLICANTS/ACCUSED**

#### **Versus**

## **UGANDA RESPONDENT/PROSECUTOR**

## **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

#### 15 **RULING.**

#### **Background.**

[1]. The Applicants (Accused): - **Odokonyero Mwaka Christopher (A1), Okeny Francis (A2), Lam Marino (A3), Ocaya Francis (A4) and Kitara Lapalabek (A5)** were each charged with **Murder** Contrary to **Sections 188 and 189 of the**

# 20 **Penal Code Act, Cap. 120**.

[2]. The Applicants are accused of unlawfully killing with malice aforethought **Akongo Betty** on the 20th September, 2023 at Acamuling village in Pader District.

- [3]. This is an Application for release on Bail at the discretion of the Court instituted by Motion with supporting Affidavits of each Applicant and Annextures thereto filed under the following stipulated provisions - **Article 23(6)(a) of the 1995 Constitution, as Amended; Section 14(1) of the Trial on Indictments Act,** 5 **Cap. 23;** and, **Rules 2 and 5 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022**. - [4]. The Court observes that the offence is Capital in nature and subject to the Jurisdiction of the High Court for Trial much as the Accused A1, A2, A3, A4 and A5 have neither been committed to the High Court for Trial nor Indicted 10 todate.

#### **The Applicants' Case – Grounds of the Application and Submissions.**

- [5]. The Applicants each contend that they are on remand at Kineni Government Prison in Pader District since October, 2023 and have not been committed to 15 the High Court for Trial or Indicted. - [6]. Each of the Five (5) Applicants aver in their respective Affidavits that they have fixed places of abode in Pader District within the Jurisdiction of the Court. They each claim to present substantial sureties to the Court and undertake to report to the Court whenever required and are willing to abide by any bail conditions 20 which may be set for them by the Court. - [7]. The Applicants assert their Constitutional rights including the presumption of innocence until proved guilty and submit that they have the right to bail at the discretion of the Court in the interests of Justice. - [8]. In as far as previous criminal records, the Applicants submit that they have not 25 previously been charged in Court and do not have any other charges pending against them. - [9]. In regards to the period they have spent on remand as stated in their respective Affidavits, as at the date of the delivery of this decision today 21st March, 2024 –

the Accused all having been charged on the same day have each been on remand since the 6th October, 2023 being a period of Five (5) months Fourteen (14) days.

- [10]. Concerning their respective residences, the Applicants contend that they have permanent and fixed places of abode in Paibwor Parish, Ajan Sub County in 5 Pader District which is within the Jurisdiction of the Court as follows – A1 resides in Lobut village, Paibwor Parish, Ajan Sub County in Pader District; A2 and A3 reside in Larwodo village, Paibwor Parish, Ajan Sub County in Pader District; A4 resides in Acamoling village, Paibwor Parish, Ajan Sub County in Pader District; and, A5 resides in Ojuta village, Paibwor Parish, Ajan Sub County 10 in Pader District. - [11]. In respect of their identification credentials, the Applicants A1, A2, A3, A4 and A5 - each presented to the Court Introduction Letters from their respective LC 1 Chairpersons dated in October, 2023 while A2 also presented a **"To Whom It May Concern Letter"** from the Police also dated in October, 2023. A2, A3 and 15 A4 did not present National Identity Cards. A2 presented a Voter Location Slip indicating his date of birth as the 1st May, 1977; A3 presented a Voter Location Slip indicating his date of birth as the 1st January, 1945; and, A4 presented a COVID vaccination card. A1 presented a National Identity Card indicating his date of birth as the 25th December, 1967 and expiring on the 19th December, 20 2024 and A5 presented a National Identity Card indicating his date of birth as the 1st September, 1971 and expiring on the 28th February, 2025. - [12]. Counsel for the Applicants cited the following Authorities, including; - - i. **Criminal Misc. Application No. 19/2022 (Mukono): Serukwaya Stephen & Others Vs. Uganda** for the proposition that the discretion 25 to grant bail lies with the Court taking into account the interests of all of the parties and the interests of the society as a whole (See: Page 10);

- ii. **Criminal Misc. Application No. 71/2022 (Mukono): Uwacu Busheshi Jeanne De Chantal & Anor Vs. Uganda** for the proposition that the Applicants being charged with Murder which carries the maximum sentence of death was not by itself a bar to their release on bail 5 if they satisfy all the requirements (See: Page 10); - iii. **Misc. Criminal Application No. 021/2016 (Arua): Kermundu Pastore Vs. Uganda** for the propositions that proof of exceptional circumstances (including advanced age and grave illness) is not mandatory since the Court has the discretion to grant bail even where none is proved, 10 the lack of an averment or basis for likelihood of abscondment in the Prosecution's Affidavit in Reply and the Accused's attendance of their Trial may be guaranteed by the imposition of rigorous terms for release on bail. Reference is made therein to advanced age being Fifty (50) years (See: Page 2 and 3). - 15 iv. **Criminal Misc. Application No. 83/2021 (Kampala): Col. (Rtd) Dr. Kizza Besigye Vs. Uganda** for the proposition that the Prosecution should substantiate in its Affidavit in Reply in regards to likelihood of abscondment and interference with witnesses and investigations by the Accused and the Court should not simply act on allegations, fears and 20 suspicions otherwise bail would never be granted given the limitlessness of such concerns (See: Page 10 and 11). - [13]. In summation on the Application for release of the Accused on discretionary bail, Counsel for the Applicants submitted that they had met the requirements for release of the Accused on bail at the discretion of the Court and prayed that 25 the Court be pleased to accept the sureties provided and grant the Application on such terms as may be determined as appropriate.

#### **The Prosecution's Case - Response to the Application and Submissions.**

- [14]. The Respondent (Prosecution) filed on the 14th February, 2024 a responsive Affidavit in Reply in opposition to the Bail Application deponed by No. 56168 D/C Mawadri Simon. The Prosecution averred that enquiries were complete and 5 there was sufficient evidence for committal of each of the Accused. The delay in committing the Accused was according to their explanation occasioned by the sequential movement and transfer of the Police File from Central Police Station, Pader to the Office of the Aswa Regional Police to the Office of the Resident State Attorney, Pader and the Office of the Assistant Director of Public 10 Prosecution, Gulu. The Prosecution informed Court that it had failed to contact the Complainants since their known contacts were not available. - [15]. The Prosecution contended that there was a high likelihood of abscondment by the respective Accused as well as interference with witnesses, given the gravity of the offence. It was strongly submitted that the Accused had not provided and 15 proved exceptional circumstances including advanced age and grave illness. - [16]. The Prosecution submitted that grant of bail was not absolute and the Court was required to exercise its discretion judiciously in providing reasonable terms of bail to ensure that the Accused attend their Trials. - [17]. In summation on the release of the Accused on discretionary bail, the 20 Prosecution prayed that the Court be pleased to dismiss the Application.

#### **Applicants' Submissions in Rejoinder.**

- [18]. In rejoinder, it was re-iterated that the offence of Murder does not bar an Application for bail. A1, A3 and A5 were said to be of advanced age being above 25 Fifty (50) years old and the allegations of abscondment were unsubstantiated. - [19]. In conclusion, the Applicant prayed that the Court be pleased to grant the Accused bail upon terms to be set by the Court.

#### **Representation.**

- [20]. Counsel Abore Patrick, represented the Applicants (Accused). - [21]. Counsel, Mr. Muzige Hamza, Resident Senior State Attorney, represented the Prosecution. - [22]. The entire proceedings which were conducted on the 15th 5 February, 2024 were interpreted in the Acholi language for the benefit of the Applicants (Accused) who were present throughout.

#### **Considerations and Determination of the Court.**

- [23]. The Court has had occasion to duly consider the Motion and grounds contained 10 therein with its supporting Affidavits of each of the respective Applicants (Accused) and Annextures thereto, the Affidavit in Reply in opposition to the Application; the Main Submissions, Reply and Rejoinder; and, the Proceedings. - [24]. The Court finds that the Applicants have each been on remand since the 6th October, 2023 – a period of Five (5) months Fourteen (14) days. This falls short 15 of qualifying for mandatory bail under the Constitutional and Statutory period of One Hundred Eighty (180) days prior to committal and therefore grant of bail is left to the judicious discretion of the Court with exceptional circumstances including grave illness, advanced age, youthfulness remaining fundamental in enabling the Court to reach its determination on grant of bail, or not. **See –** - 20 **Mutatis Mutandis: Sections 13, 14 and 15 of the Trial on Indictments Act, Cap. 23; Rule 14(2) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022; and, Misc. Criminal Application No. 021/2016 (Arua): Kermundu PastoreVs. Uganda.** - [25]. It is the finding of the Court that the Applicants herein are charged with Murder 25 which is Capital in nature and is only triable by the High Court. The cited provisions in respect of discretionary bail therefore apply in respect of the Applicants.

- [26]. In view of the foregoing, it is the duty of the Court to judiciously consider the merits of the Application and reasonable terms and conditions upon which the Applicants may be released on bail so as to ensure their attendance of Court upon commencement of the Trial. Moreso, in view of the representations of the 5 Prosecution that they have obtained sufficient evidence to commit and indict the Applicants. - [27]. The Court having already duly considered their residences being their fixed places of abode in Paragraph 10 herein-above which are within its Jurisdiction as well as their respective varied identification credentials submitted in Paragraph 10 11 herein-above therefore now proceeds to consider the sureties submitted by each of the respective Applicants. **See: Rule 15 Constitution (Bail Guidelines for Court of Judicature) (Practice) Directions, 2022.** - [28]. The first Applicant, Odokonyero Mwaka Christopher, provided to Court a National Identity Card and telephone contact and presented Three (3) sureties. 15 The first surety, Lawino Doreen, introduced as the wife of the Accused is Fifty-Two (52) years old a Farmer submitted a National Identity Card and a telephone contact as well as an Introduction Letter from her Chairperson LC 1. The second surety, Adong Rosemary, introduced as the sister of the Accused is Fifty-Two (52) years old a Farmer submitted a National Identity Card and a telephone 20 contact as well as an Introduction Letter from her Chairperson LC 1. The third surety, Rubangakene Cosmas, introduced as the son of the Accused is Thirty-Two (32) years old a Farmer submitted a National Identity Card and a telephone contact as well as an Introduction Letter from his LC 1 Chairperson. The Court considered the 1st and 2nd sureties sufficient with the former sharing a place of 25 abode with the Accused and the latter's stature and maturity able to compel A1's attendance of Court. The third surety was considered insufficient in as far as he may be unable to compel his Father's Court attendance and his relative youth. - [29]. The second Applicant, Okeny Francis, who did not provide to the Court a National Identity Card but instead submitted a Voter Location Slip much as he provided a telephone contact and presented Three (3) sureties. The first surety, Ayenyo Christine, introduced as the wife of the Accused is Forty-Two (42) years 5 old and a Farmer submitted a National Identity Card and a telephone contact as well as an Introduction Letter from her Chairperson LC 1. The second surety, Abala Matthew Lamoyo, introduced as the brother of the Accused is Thirty-Nine (39) years old and a Farmer submitted a National Identity Card and a telephone contact as well as an Introduction Letter from his Chairperson LC 1. The third 10 surety, Ochan Boniface, introduced as the younger brother of the Accused is Thirty-Six (36) years old and a Farmer submitted a National Identity Card and a telephone contact as well as an Introduction Letter from his Chairperson LC 1. The Court considered the 1st and 2nd sureties sufficient with the former sharing a place of abode with the Accused and the latter's stature and maturity able to 15 compel A2's Court attendance. The third surety was considered insufficient in as far as his stature may be unable to compel the Accused's Court attendance. - [30]. The third Applicant, Lam Marino, did not provide to the Court a National Identity Card or telephone contact and instead submitted a Voter Location Slip and presented Three (3) sureties. - 20 [31]. The Court noted early on the distinguishing features in respect of the profile of the third Applicant – especially in as far as his stated age being Seventy-Eight (78) years of age indicated as having been born in the year 1945. This immediately drew the attention of the Court. Accordingly, in considering the sufficiency of the sureties presented by the respective Applicants, while the Court was generally 25 not inclined to accept as sufficient sureties the children of the Applicants (Accused) in the present instance exception was made.

Page | 8

- [32]. The first surety, Adiyo Christine, introduced as the daughter of the Accused is Forty-Six (46) years old and a Farmer submitted a National Identity Card and a telephone contact. The second surety, Ocitti George, introduced as the son of the Accused is Forty-One (41) years old and a Farmer submitted a National 5 Identity Card and a telephone contact. The third surety, Wokorach Simon, introduced as the son of the Accused is Twenty-Six (26) years old and a Farmer submitted a National Identity Card and a telephone contact. They all submitted Introduction Letters from their LC 1 Chairperson(s). The Court considered the 1 st and 2nd sureties sufficient owing to their maturity much as they are the children 10 of the Accused and therefore able to compel A3's attendance of Court. The third surety was considered unlikely to compel his Father's Court attendance owing to his relative youthfulness. - [33]. The 4 th Applicant, Ocaya Francis, neither provided to the Court a National Identity Card nor a telephone contact and presented Three (3) sureties. The first 15 surety, Arach Lillian, introduced as the wife of the Accused is Forty-Six (46) years old and a Farmer submitted a National Identity Card though she did not provide a telephone contact and presented an Introduction Letter from her Chairperson LC 1. The second surety, Wokorach Nyeko Lenox, introduced as the uncle of the Accused is Sixty-One (61) years old and a Farmer submitted a National 20 Identity Card and a telephone contact as well as an Introduction Letter from his Chairperson LC 1. The third surety, Lakot Jackline, introduced as the sister in law of the Accused is Thirty-Nine (39) years old and a Farmer submitted a National Identity Card and a telephone contact as well as an Introduction Letter from his LC 1 Chairperson. The Court considered the 1st and 2nd sureties 25 sufficient with the former sharing a place of abode with the Accused and the latter's maturity and stature able to compel A4's Court attendance. The third surety was considered unlikely to compel her brother in law's Court attendance.

- [34]. The 5 th Accused, Kitara Lapalabek, provided to the Court a National Identity Card and a telephone contact and presented Three (3) sureties. The first surety, Amal Jennifer, introduced as the wife of the Accused is Forty-One (41) years old and a Farmer submitted a National Identity Card though she did not provide 5 telephone contact but submitted an Introduction Letter from her Chairperson LC 1. The second surety, Ocira Simon Peter, introduced as the brother of the Accused is Forty-Five (45) years old and a Farmer submitted a National Identity Card and a telephone contact as well as an Introduction Letter from his Chairperson LC 1. The third surety, Bongomin Alfred, introduced as the uncle 10 of the Accused is Sixty-Three (63) years old and a Farmer submitted a National Identity Card and a telephone contact as well as an Introduction Letter from his LC 1 Chairperson. The Court considered the 1st and 3rd sureties sufficient with the former sharing a place of abode with the Accused and the latter's stature and maturity able to compel A5's Court attendance. The 2nd surety was considered 15 unlikely to compel his elder brother's Court attendance. - [35]. The Court has reviewed the entirety of the Application and observes that the Applicants generally relied on the discretion of the Court to grant them bail and therein indicated their residences as being their fixed places of abode with varied identification documents tendered and diverse sureties presented duly 20 considered and outlined herein-above *In extenso*. For the avoidance of doubt, here the Court considers the sureties' **"stature"** relative to the Applicant (Accused). - [36]. Besides the 3rd Applicant at Seventy-Eight (78) years of age, the 1st and 5th Applicants purport to be of Advanced age being in their Fifties. This was a stretch. The Court is guided by **Rule 14(1) and (2)** in regard to exceptional 25 circumstances for grant of bail and the definition of **"Advanced Age"** being Sixty (60) years of age and above under **Rule 4 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022.**

- [37]. In the circumstances, at Seventy-Eight (78) indicated in his Affidavit as well as the Voter Location Slip issued by the Electoral Commission and provided to the Court indicating date of birth as the 1st January, 1945 - only the 3 rd Applicant qualifies for consideration under exceptional circumstances. In view of the other 5 required considerations for grant of bail outlined herein-above – though noting his lack of a National Identity Card - and the Courts acceptance of the Two (2) sureties provided, the 3rd Applicant here is hereby granted bail. - [38]. In respect of the 1st, 2nd, 4th and 5th Applicants who do not qualify under exceptional circumstances and fall short of mandatory bail, much as the Court 10 considered the sufficiency of the sureties provided and other requisite factors for grant of bail outlined, it is conscious of and is persuaded by the representations of the Prosecution that enquiries are complete and their committal is imminent. This would expedite and therefore eliminate the possibility of substantial delay of their Trial. The Court therefore declines to exercise its discretion to release 15 them on bail. **See: Rule 13(d) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022.** - [39]. In the final event, only the 3rd Applicant is hereby granted bail in view of the exceptional circumstances accepted by the Court and shall only be released upon executing a cash bond of Uganda Shillings Three Million (Ushs. 3,000,000/-) and 20 simultaneously his Two (2) sureties accepted by the Court - **Adiyo Christine** and **Ocitti George** - each executing a non-cash bond of Uganda Shillings Five Million (Ushs. 5,000,000/-). The 3rd Applicant (Accused) shall report to the Chief Magistrate's Court, Pader every first (1st) Monday of the month beginning in April, 2024 – or the next working day should the first Monday of the Month 25 transpire to be a weekend, or a public holiday. - [40]. In respect of the 1st, 2nd, 4th and 5th Applicants the Application is dismissed. It is so ordered.

## **Orders of the Court.**

- [41]. Accordingly, the Court makes the following Orders: - - 1. The 3rd Applicant (Accused) **Lam Marino** is granted bail in view of exceptional circumstances proved being his Advanced Age of Seventy-5 Eight (78) years. - 2. The 3rd Applicant shall only be released upon executing a cash bond of Uganda Shillings Three Million (Ushs. 3,000,000/-) and his sureties – **Adiyo Christine** and **Ocitti George** – shall each execute a non-cash bond of Uganda Shillings Five Million (Ushs. 5,000,000/-). - 3. The 3 10 rd Applicant shall report to the Chief Magistrate's Court, Pader every first (1st) Monday of the month beginning in April, 2024 – or the next working day should the first Monday of the Month transpire to be a weekend, or a public holiday. - 4. The Application is dismissed in respect of the 1st, 2nd, 4th and 5th Applicants 15 (Accused) in view of the representations of the Prosecution that enquiries are completed and their committal is imminent thereby in the consideration of the Court eliminating the possibility of substantial delay of their Trial. - 20 It is so Ordered.

**Signed and Dated on the 21st day of March, 2024 at the High Court, Kitgum Circuit.**

**Philip W. Mwaka**

25 **Acting Judge of the High Court.**

## **Delivery and Attendance.**

This signed and dated Ruling, has been delivered in open Court at the High Court, Kitgum Circuit on **Thursday, the 21ST day of March, 2024 at 09:00am** and the parties present are recorded hereunder.

- 5 1. Counsel for the Applicant Mr. Abore Patrick. - 2. Respondent Counsel - 3. 1 - 4. 2 - 5. 3 10 rd Applicant Lam Marino. - 6. 4 - 7. 5 - 8. Court Clerk/Interpreter Mr. Atube Michael.


15 **Philip W. Mwaka**

**Acting Judge of the High Court.**

**21st day of March, 2024.**

- (Prosecution/State) Mr. Muzige Hamza, RSSA. - st Applicant Odokonyero Mwaka Christopher. - nd Applicant Okeny Francis. - th Applicant Ocaya Francis. - th Applicant Kitara Lapalabek.