[2025] UGHC 71

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU CRIMINAL MISC. APPLICATION NO. 0059 OF 2024 (ARISING FROM CRIMINAL CASE NO. AA 037 OF 2024, GULU EAST** 10 **CRB 208/2024) OJERA TOM ……………………………………………………………APPLICANT**

# **VERSUS**

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

## 15 **BEFORE: HON. MR. JUSTICE GEORGE OKELLO**

### **RULING**

- The applicant seeks to be released on bail pending trial for Aggravated 20 Defilement, contrary to section 116 (3) (4) (b) and (c) of the Penal Code Act Cap 128. He was arrested on 01 June, 2024, charged before the Chief Magistrates Court on a date not readily known to this court, and remanded to Prison. He was later committed by the Chief Magistrate to the High Court on 17 October, 2024 and presently awaits his trial. It is alleged that - 25 being HIV positive, and being a person in authority over the victim, the applicant performed sexual act on the victim aged 17 years during the month of March, 2024. At the time of lodging the application on 13 November, 2024, the statutory laws of Uganda had since been revised as

- 5 at 31 December, 2023, with the effective date being 01 July, 2024. I note, however, that, the applicant predicated the application on the old edition of the Trial on Indictments Act Cap 23. I shall, in this ruling, defer to the laws as revised. - 10 The application is founded on Articles 2, 20, 23 (6) and 28 (1) of the Constitution of the Republic of Uganda 1995, and sections 14 and 15 of the Trial on Indictments Act Cap 23 (now s .15 and s. 16 of the Cap 25).

The applicant' case is that he has a fixed place of abode at Plot 2, Agago 15 Close, Gulu Municipality, Gulu City, also known as Vanguard Cell, Laroo-Pece Division, Gulu City, within the jurisdiction of court, and that he lives on personal titled property and there is no chance of changing his fixed place of abode. That, he has four substantial sureties; he is aged 57, and is frail. He suffers from Hypertensive Heart Disease with severe 20 Hypertension complicated in Hypertensive stroke (left), Chronic Gastritis with suspicion index of Peptic Ulcers Disease, and HIV/ AIDs. He undertakes to honour any bail conditions. The applicant asserts that he will not interfere with any investigations as investigation is complete; he is interested in proving his innocence; and it is in the interest of Justice that 25 bail is granted on the basis of the presumption of innocence and yet the trial is likely to delay since court acts on the principle of first-in, first-out.

- 5 He also bases on family hardship which his children and other family members are alleged to be facing due to his incarceration. The applicant swore an affidavit and attached relevant documents. His sureties also swore affidavits and rely on documentations. - 10 The respondent opposes the application. D/CPL Okiria John William swore an affidavit to the effect that the offence with which the applicant is indicted is grave in nature, and attracts death penalty, and, therefore, there is a likelihood of the applicant absconding if released on bail. That, the applicant has since been committed to the High court, and awaits his 15 trial, and the prospects of being tried soon are high, and, therefore, no substantial delay shall be occasioned. The deponent contests the allegation of grave illness especially the claim that the applicant's medical conditions are not capable of being adequately managed whilst in Prison. The D/CPL asserts that the applicant is not of advanced age which the 20 Bail Guidelines set at 60. It is also contended that the alleged victim of aggravated defilement lived with the applicant, therefore, being a person in authority over the victim, the applicant will likely interfere with the victim as a state witness. It was further deposed that one of the sureties who is a spouse of the Applicant, is an aunt to the victim and, therefore, 25 risks interfering with state witnesses. It was asserted that the victim is

already being compromised and threatened by some agents and relatives

5 of the applicant. It was also claimed that the applicant is an influential businessman in the area with powers over the victim's family and is likely to compromise their appearance as state witnesses. It was also contended that hardships facing the applicant's family is not an exceptional consideration for bail. It was averred that the applicant was arrested three 10 months after the alleged commission of the offence and, therefore, had evaded arrest for sometime.

The applicant and his spouse swore affidavits in rejoinder, denying the respondent's contentions.

During the hearing, the applicant was represented by Mr. Watmon Ronald Brian of M/S Odongo & Co. Advocates while the respondent was represented by the learned State Attorney, Ms. Jean Nareeba, from the Office of the Director of Public Prosecutions.

Mr. Watmon proceeded to introduce four sureties and availed their original documentations to court, in confirmation of the photocopies attached to their affidavits.

5 Both learned counsel addressed court orally. I will not reproduce their detailed arguments for brevity but may refer to those parts that are absolutely necessary.

### **Determination**

Bail is an agreement or recognizance between the accused (and his sureties, if any), and the court, that the accused will pay a certain sum of money fixed by the court, if any, should he fail to appear to attend his trial. See: B. J Odoki: A guide to criminal procedure in Uganda (2nd Ed.) 1990.,

15 at P. 71; Francis J. Ayume, Criminal Procedure and Practice in Uganda, p. 54; Aganyira Albert Vs. Uganda, Criminal Misc. Application No 0071 of 2013 (Jane Alividza, J.); Uganda Versus Lawrence Luzinda (1986) HCB 33; and paragraph 4 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 (hereafter, Bail Guidelines).

The object of bail is to ensure that the accused person appears to answer the charge against him without being detained in prison on remand pending trial. The effect of bail, therefore, is to temporarily release the accused person from custody. The accused undertakes to attend court as 25 and whenever required. Bail allows an accused person to avoid pre-trial detention and attend his trial from outside prison custody but court at all

- 5 times retains jurisdiction over the accused when out on bail and may for that purpose alter bail conditions or even cancel bail when reason for alteration or cancellation arises. See: Onebe Francis Vs. Uganda, Criminal Misc. Application No. 68 of 2022 (Michael Elubu J). - 10 An accused person thus has a right under Article 23 (6) (a) of the Constitution, 1995, to apply for bail, and the provisions of the Trial on Indictments Act which provide for proof of exceptional circumstances does not take away an accused person's right to apply for bail. This was the view of the Supreme Court in Foundation for Human Rights Initiative 15 (FHRI) Vs. Attorney General, Constitutional Appeal No. 03 of 2009. Bail thus protects and guarantees the fundamental rights of the individual to liberty, the presumption of innocence, and the due process of the law on the one hand, and the societal interests on the other. See: Articles 23 (1) (c), 28 (3) (a), 126 (1) of the Constitution, and Katureebe CJ in FHRI VS.

20 AG.

In matters of bail, court is supposed to balance the competing rights and interests of an accused person with the needs and interests of society at large, to prevent and punish crimes committed within its midst. This is so 25 because judicial power is derived from the people and must be exercised by the courts in the name of the people and in conformity with the law and

- 5 with the values, norms and aspirations of the people. Therefore, people are important and are major beneficiaries of the criminal justice system. It has been stated that the most important consideration for grant of bail is whether the accused person will turn up for his trial and will not interfere in any way with evidence. In Attorney General Vs. Joseph Tumushabe, - 10 Constitutional Appeal No. 03 of 2005, Mulenga, JSC drove the point home when he said

*"In the case of a person accused of a criminal offence applying for release on bail pending trial, the court's principal consideration is whether such* 15 *release is likely to prejudice the pending hearing."*

In bail matters, therefore, court exercises discretion whether to grant or not to grant bail, but the discretion has to be exercised judiciously. This was the view of the Constitutional court in Uganda Vs. Col. (RTD) Dr. Kiiza 20 Besigye, Constitutional Reference No. 20 of 2005. Thus court considers all factors before it, and reaches a decision without taking into account any reason that is not a legal one. Court thus has to act within the rules of reason, justice, and law, within the limits and objects intended by a particular legislation. See: R Vs. Board of Education [1990] 2 K. B 165, 25 which was cited in Onebe Francis Vs. Uganda.

5 In capital offences, court may require an accused person to prove an exceptional circumstance though no longer mandatory as held in FHRI Vs. AG. The exceptional circumstances mentioned in the Trial on Indictments Act are; grave medical illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable 10 of adequate medical treatment while the accused is in custody; a certificate of no objection by the Director of Public Prosecutions; the infancy or advanced age of the accused. It should be recalled that, according to FHRI Vs. AG, the three conditions are not the only exceptional circumstances as a court may find others in a given factual situation before it.

In bail application, court has to also consider whether or not the accused is likely to abscond and in so doing court assesses whether the accused has a fixed place of abode within the court's jurisdiction or is ordinarily resident outside Uganda; whether the accused has sound sureties within 20 the jurisdiction to undertake that he shall comply with the conditions of bail; whether the accused has on a previous occasion when released on bail failed to comply with the conditions of his or her bail; and whether there are other charges pending against the accused. Thus once court decides to grant bail, it should be on such terms as the court considers 25 reasonable. Reasonableness requires that the court weighs all relevant factors before granting bail.

Turning to the matters canvassed, I shall consider them in the order in which they have been presented. The factors that guarantee the applicant's likelihood of attending his trial and that he will not abscond if released, is the fact of having sound sureties, and having a fixed place of 10 abode within the court's jurisdiction. Here, the applicant has presented four sureties, namely, Oloya Clara, a spouse who is gainfully employed at Bar-Dege Health Centre III as a Nursing Officer. Oloya Clara presented a National Identity Card (ID), Marriage Certificate, Local Council 1 letter (LC1), Work ID, confirmation into appointment, and salary pay slip. I find 15 her suretyship sound.

Presented before court was also Nyapolo Margaret, a relative of the applicant, employed as a teacher at Sacred Heart Secondary School Gulu. She presented all relevant documentations such as National ID, school ID, 20 appointment letter, confirmation letter, and LC1 letter. I find her substantial. The other surety is Kinyera George Candano, a business man within Gulu City and a close friend of the applicant. He presented operational permit for his business- Aeronyero Produce Processing Works, a National ID, and an LCI letter. I find him substantial. The last surety is 25 Odong Charles, a cousin brother of the applicant. He is a business man within Gulu City and a Director of Charlton Nursery and Primary School,

5 and doubles as a proprietor thereof. He presented a National ID, work ID, and LCI Letter. I find him substantial. All the sureties said they understood their duties to court, and court does not doubt them. I am thus satisfied that all the sureties are capable of guaranteeing and ensuring the applicant attends trial and honours any bail terms court may impose 10 should the application succeed. All the sureties have thus met the suitability criteria listed in paragraph 15 (1) of the Bail Guidelines.

Regarding the fixed place of abode, the applicant deposed that it is at plot 2, Agago close, Gulu Municipality and presently Vanguard Ward, 15 Vanguard Cell, Laroo-Pece Division, Gulu City following the attainment of City status by Gulu on 01 July, 2020. I find the statement of the fixed place of abode to be consistent with the Leasehold Certificate of Title adduced in evidence which is in the name of the applicant. It is LRV 3060, for 99 years, effective 01 March 2002. The LCI letter of the area further 20 confirms the applicant's fixed residence. I am thus satisfied that the applicant has a fixed place of abode within this court's jurisdiction. There is also no pending charges against the applicant, and there is no evidence that the applicant was previously granted bail but absconded. These factors favour the applicant's prayer for bail.

5 Regarding exceptional circumstances, although not mandatory, in serious offences such as the present, court may insist on proof of an exceptional circumstance and by so conditioning grant of bail, a court would not be acting unconstitutionally. See: FHRI Vs. AG. Here, advanced age has not been proved given the applicant's current age of 57 thus three years shy 10 of the threshold of 60 and above, as stipulated in paragraph 4 of the Bail Guidelines. I, therefore, find that the applicant has not satisfied this exceptional circumstance.

About his ill-health, the applicant relies on the report from Murchison Bay 15 Hospital, Kampala. The report which is dated 07 November, 2024 followed a request by the applicant's lawyers dated 18th October, 2024 to the Commissioner General of Prisons for medical examination of the applicant. The report is prepared by Medical Superintendent Dr. Kakoraki Alex. He noted that the applicant was as at the date of the report, admitted in sick 20 bay of the prison unit. The report states that clinical examination revealed an elderly male, sick-looking, a B/P of 180/105mmHg, a pulse rate of 103/min (tachycardia), left paraparesis and paraplegia, maximum tenderness in the epigastrium. The Medical Superintendent concluded that the applicant suffers from a hypertensive heart disease with severe 25 hypertension complicated in hypertensive stroke; chronic gastritis with a high suspicion index of peptic ulcer disease, ISS (HIV), and old age. He

5 noted that with a history of hypertensive crisis complicated in a left hypertensive stroke, the applicant's heath is risky in the prison setting.

The learned state counsel, Ms. Nareeba, argued that since the applicant has always been on remand at Gulu Main Prison, the report from 10 Murchison Bay Hospital, Kampala, is not that envisaged by the law. Citing the provision of the Trial on Indictments Act, she argues that the report should have been from Gulu Main prison medical facility where the applicant is in custody. She relies on several judicial decisions which have emphasized that, to qualify as grave, the illness must be certified by a 15 medical officer of the prison, institution or place where the accused person is in custody. See: Immaculate Lugolobi v Uganda, H. C. Misc. Application. No. 30 of 2003; Capt. Wilberforce Serunkuma v Uganda, H. C. Misc. Criminal. Application. No 129 of 1994; Molly Katanga v Uganda, Misc. Application No. 052 of 2024.

I agree with the above judicial interpretation of the relevant provision of the Trial on Indictments Act. However, I should state that the instant matter is quite different in that whereas the applicant was not examined by a medical officer from Gulu Main Prison medical facility where he is 25 remanded, from the medical report adduced from Murchison Bay Hospital, it is clear the applicant was taken there and momentarily admitted at the

5 facility from where he underwent specialized medical assessment. It is also common knowledge which court takes judicial notice of, that Murchison Bay Hospital is a Prison Facility with better services compared to other medical facilities in other Government Prisons throughout Uganda. I do not, therefore, agree that the report in the specific circumstances, run 10 afoul of the provision of the statutory enactment. This is because at the time the applicant was medically examined, he was a patient at the facility albeit temporarily. I, therefore, hold that the applicant has proved an exceptional circumstance being grave illness which cannot be treated while in prison pending trial. No contrary evidence was adduced by the 15 state. I do not also agree with the state insinuation that the medical report was engineered for the purpose of this bail application. The report was authored by a Medical Superintendent of Murchison Bay Hospital who says the applicant was examined at the facility. This is a state facility for crying out loud! It, therefore, and with respect, defeats common sense and 20 logic for the learned state counsel to deny the credibility of the medical report from one of the key state institutions in the land yet she offers no alternative better evidence. I note that the lawyer's request to the Commissioner General of Prisons to have the applicant medically examined was general and they in no way attempted to bias the medical 25 examiner or influence the outcome of the examination. These observations should suffice to settle the matter.

Another contentious matter was the allegation of interference with the state witnesses or evidence should the applicant gain temporary liberty pending trial. In this regard, the learned state counsel relied on a statement from a general enquiries file, and an additional police statement 10 of the victim, both dated 20 October, 2024. There, it is alleged that whilst at the victim's school (Gulu SS), a one Opira James who is a teacher at the school, introduced the victim to a one Atube who is alleged to have intimidated the victim not to testify against the applicant should the case come up for trial. In her statement, the victim alleges that the applicant's 15 relatives, led by his spouse, brothers, and sisters, have throughout the period when the applicant is on remand, continued to persuade the victim to drop the charges (a request the victim declined). The victim then gives a narrative of an alleged incident of 18 October, 2024 in which a stranger (Pastor Patrick) went to her school claiming blood relationship with the 20 victim's mother, and alleging that the relatives of the applicant were planning to kidnap the victim. The alleged Pastor requested the victim to go with him the following day (19/10/2024) to make an additional statement at Gulu Police Station in which she was to deny the allegations of aggravated defilement against the applicant. The victim concludes that 25 she did not accept the stranger's request, and decided to inform Police.

5 Court notes that, following her complaint, the Police opened a General Enquiries File, and recorded a statement from Opira James, the teacher. In his statement dated 07 November, 2024, Mr. Opira stated that he met the stranger (Pastor) in the company of another teacher – Mr. Akera. Mr. Opira, however, denies knowing the stranger although he admits that the 10 stranger indeed met the victim within the school campus, under a mango tree, given the stranger's (false) representation that he was an uncle to the victim.

In her arguments, the learned state counsel submitted that the above 15 episode evidences a likelihood of interference with the victim. The applicant, however, wholly denies any alleged interference. He also denies knowledge of the alleged Pastor and asserts that none of his agents or relatives attempted to interfere with the course of criminal justice.

20 What this court can say from the foregoing is that, it has not been proved that the person who is alleged to have met the victim at her school was an agent of the applicant and was acting with the applicant's express or implied knowledge, authority and approval. And given that the matter is still subject of Police Investigation, this court lacks sufficient material on 25 which to conclude that the applicant had a hand in the alleged maneuvers by the stranger. It is also very possible for persons who may have the

5 applicant's best interests at heart to posture as representing his wishes with a view to having the criminal case dropped even when the applicant may not at all know or approve of such maneuvers. Allegations such as this require credible proof. I have noted the applicant's deposition in his rejoinder affidavit as against the state objection, in which he expresses the 10 fervent wish to prove his innocence albeit not a legal requirement. He also states so in his affidavit in support which was drawn well before the filing

of the respondent's affidavit. The applicant in no way expresses a wish to

- have the criminal case arbitrarily discontinued before trial. - 15 I do not, therefore, with respect, take the isolated unproven incident by a stranger which is still under investigation, as an act of interference or proof of such a risk by the applicant, if granted bail. Moreover, the fact that the stranger has, on the evidence, not been arrested, complicates the matter, and leaves the allegation of interference unproven against the applicant. - 20 The allegation is at best a mere conjecture which has no place at law.

It is also abundantly clear that the victim is no longer a member of the applicant's household, contrary to the state representation. This fact is consistent with the victim's additional Police statement referred to, and 25 that of Oloya Clara. Moreover, the alleged relationship of niece- aunt between the victim and Oloya Clara, has been roundly rejected by Ms.

 5 Oloya in her rejoinder affidavit. She states that the victim was a friend to her daughter (Laker Edna). So Ms. Oloya decided to sponsor the victim at the school as a matter of grace, the victim having dropped out of school. According to Ms. Oloya, after the allegation of sexual assault against her husband, which she denies happened, she decided to hand the victim back 10 to her mother, and both now live in a place and location unknown to Ms Oloya. She also asserts that she has no means of or interest in interfering

I have given sufficient attention to the issues canvassed, and my 15 inescapable conclusion is that the allegation of interference with evidence or a likelihood thereof, has not been strongly made out by the respondent's witness.

with the victim or her mother.

I am thus satisfied that the applicant has met the requirements for the 20 exercise of court's discretion in his favour. His health condition is quite serious, worrying and perilous if left unattended outside the current prison setting, as reported by the medical expert. I also observed the applicant in open court hall. He looked sick and could barely stand. He was restless. I also noted from his medical records which he supplied court during the 25 hearing on court request, which show that he has been a known stroke patient even before the time of his arrest.

5 I do not think the applicant was acting before court to gain a favourable outcome as court is skilled enough to distinguish between stage acting and a sick person who is in need of urgent medical care. I do not, therefore, with respect, accept the contrary arguments. It would not serve the public interest and the interest of due administration of criminal justice if court 10 were to deny bail only for the applicant to succumb to his grave illness while in Prison confinement as he awaits trial. And yet here, the applicant's sureties are quite sound and he has a fixed place of abode on personal property within court's jurisdiction. Moreover, the state's apprehension of a likelihood of interference with evidence, has been discounted. I do not, 15 therefore, see the need to consider, in detail, other arguments, such as the applicant's family responsibility, which at any rate, do not qualify as exceptional circumstance in bail matters, a proposition articulated in Henry Bamutura v Uganda, Misc. Application No. 19 of 2019 (per Lady Justice Prof. Tibatemwa- Ekirikubinza, JSC) citing Dominia Karanja Vs. 20 Republic (1986) KLR 612, with approval.

Finally, the claim by the state witness that the applicant evaded arrest for three months after committing the alleged offence, was not proved. The D/CPL relies on a charge sheet which is of no evidential value in proving 25 that the applicant was a fugitive.

- 5 Having carefully considered all the circumstances of this application, the application succeeds. I exercise my discretion and grant bail on the following terms; - 1. The applicant is granted cash bail of shs. 5,000,000. - 10 2. The four sureties are each bonded to court in the sum of shs. 10,000,000, not cash. - 3. The applicant shall not travel outside the country without express permission of this court. - 15 - 4. The applicant shall report to the Deputy Registrar of Court once a month on a working day in the last week of each month, beginning March, 2025, for bail extension until the final conclusion of criminal case No. AA 037 of 2024, Gulu East CRB No. 208/2024 by this court.

- 5. The sureties shall ensure the applicant reports to court as ordered in 4 above lest bail is cancelled. - 6. Should the applicant or a surety or the applicant's relatives or his 25 agents interfere either directly or indirectly with the victim, the victim's mother, or any state witness in this matter, and should court be appraised and is satisfied on evidence about any interference, the applicant's bail shall be cancelled.

5 In closing, taking into account the public interest requiring expeditious dispensation of criminal justice by the courts, and taking into account the interests of the victim, the complainant, the state, and the applicant, and the court policy to give due attention to matters pending before it, I direct the Deputy Registrar of court to fix the main case together with other 10 urgent pending matters, for trial during the next in-house session of court in the month of April, 2025.

It is so ordered.

15 Dated and signed this 24th February, 2025.

**George Okello**

**JUDGE**

5 Given my current engagement in the criminal session outside the court circuit, this Ruling shall be read to the parties by the Deputy Registrar of court, His Worship George Obong, on a date His Worship shall communicate to the parties.

10 **George Okello**

**JUDGE**

## 5 **26th February, 2025**

Accused person present.

Anyuru Borris for the Applicant.

Jean Nareeba –State Attorney for the respondent.

Ochan – Clerk

**Mr. Anyuru:** The matter is for ruling. We are ready to receive.

**Ms. Nareeba:** We are also ready to receive the ruling.

15 **Court:** Ruling delivered in the presence of the above.

**…………………………………**

**George Obong** 20 **Deputy Registrar 26th February, 2025**