[2023] UGHCCRD 117

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

### CRIMINAL MISCELLANEOUS APPLICATION NO. 04 OF 2023

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$\mathsf{S}$

(ARISING FROM CRIMINAL CASE NO. AA-211/2021, NWOYA CRB NO.498/2021, DPP CASE NO. GUL-CO- 0445-2021)

- 1. OJOK CEASAR - 15 2. OJOK INNOCENT alias VINCENT - 3. OJOK PATRICK - 4. OKELLO GODFREY HENRY - 5. OPIRO MICHAEL - 6. OKOT STEPHEN BOB - 20 7. OCIRA EMMANUEL **8. OPIYO JUSTINE** 9. OPIYO STEPHEN:::::::::::::::::::::::::::::::::::

### **VERSUS**

UGANDA:::::::::::::::::::::::::::::::::::

### 30

# BEFORE: HON. MR. JUSTICE GEORGE OKELLO

### **RULING**

#### 35 **Introduction**

In an omnibus application for bail, the Applicants jointly and severally seek to be released on bail pending their trial. They have been indicted for aggravated robbery, contrary to section 285 and 286 of the Penal Code Act Cap. 120. They have since been committed to the High Court but are yet to be tried. The Applicants who are all residents of Bidati Cell, Anaka Town Council, Nwoya District, have been on pretrial remand for slightly over two years and two months. They were apparently committed to this Court on

Hutoch

$\mathsf{S}$ 9^th February, 2022, although the Indictment and the Summary of the case show that their committal happened on 9^th February, 2021 which court finds implausible given the offence is alleged to have been committed on 12^th July, 2021. The Applicants could not have been committed to this court before the offences were allegedly committed. Be that as it may, it is alleged in the particulars of the offence that, the applicants (accused 10 persons) and others still at large, on 12^th July, 2021, at Ladyama/Lidyama Village, Pajere Parish, Nwoya District, robbed a one Kizza Emmanuel of one Itel mobile phone, one tool valued at Ugx 2,440,000, and at or immediately before or immediately after the time of the robbery, used deadly weapons to wit, spears, pangas, axes, bow and arrows, hammers 15 and sticks on Kizza Emmanuel. It is thus alleged in the summary of the case that, on the material day, the victim was hired by a one Oringa Mark to go and plough his gardens with a tractor registration number UBG 3415. While ploughing, the accused persons (applicants) emerged from a 20 nearby bush with spears, and axes and attacked the victim (Kiiza Emmanuel). At the time, the victim's principal (Oringa Mark) and his family members were bush-clearing the piece of land being ploughed by the victim. The Accused persons came while making alarms in the local language (Acholi) shouting, 'kill him', and immediately the victim was hit with a big stone and he fell out of the tractor. The victim identified the 25 Applicants as being his assailants. The Applicants were all armed with spears, pangas, arrows and long sticks. As the victim was lying down

Hutodi

$\mathbf{2}$

$\mathsf{S}$ having fallen off the tractor, the accused person (sic) cut him on the left hand, and they beat him with axes, and sticks. They then robbed the victim of his Itel phone with a memory card two lines (sic). The accused persons also robbed tractor tools inside the tool box, plus a pulling rope. The accused persons also robbed the tractor keys. They continued assaulting the victim with sticks and pangas until a one Akongo Lucy came 10 and rescued him by telling the accused persons not to kill the victim. The victim was unconscious when the Good Samaritan intervened. When the accused persons realized they had been identified by the Good Samaritan, they left the victim and went and attacked Oringa Mark and his family 15 members who were in the garden. Oringa and his family were seriously beaten by the accused persons. Later, Oringa and his family were all taken to Anaka Hospital where they were admitted for four days. The accused persons were arrested from Nwoya and charged immediately at Anaka Police (sic). The victim (sic) was examined on Police Form 3 from Anaka 20 General Hospital on 12^th July, 2021 and found to be having cut wounds on the dorsal palm, having been caused by a blunt and sharp objects. The accused persons were examined on Police Form 24 and found to be of normal mental status. The Prosecution concluded by stating in the summary that, it would tender and rely on PF 24, PF3, the broken arrow, bows, claw hammer, cloths stained with blood owned by the victim, and a 25 picture of the tractor with keys which were robbed.

HutoQ.

#### $\mathsf{S}$ **Grounds of the Application**

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In their motion anchored on articles 2, 20, 23 (6) and 28 (3) of the Constitution of the Republic of Uganda, 1995, and sections 14 and 15 of the Trial on Indictments Act Cap. 23, and Guidelines 2, 4, 5, 6, 7, and 8 of the Constitution (Bail Guidelines for the Courts of Judicature) Practice Directions, 2022, the Applicants premise their case on the following summarized grounds; they have a fixed place of abode; the fact of long detention without trial and the likelihood of further delay in their trial; existence of substantial sureties; exceptional circumstances of ill-health in case of the 5^th Applicant (Opiro Michael); exceptional circumstances of infancy in case of the 7^th and 8^th Applicants (Ocira Emmanuel and Opiyo Stephen) who are said to be 17 years old; the applicants will honour any bail terms; presumption of innocence; absence of any other criminal charges against the applicants; the applicants undertake not to interfere with investigations; and the need to have adequate time and facilities outside the Prison custody to prepare their Defences. All the Applicants swore separate affidavits. They reiterate the grounds of the application but go further to depose to matters peculiar to individual circumstances.

### **State opposition**

By the affidavit of D/AIP Okello Geoffrey, deposed on 08^th September, 25 2023, the Respondent opposed the application. The grounds advanced, in brief, are; the high likelihood of the applicants absconding and thereby

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Hurol.

frustrating the prosecution case, given the gravity of the accusation; The $\mathsf{S}$ applicants have since been committed for trial and know the evidence to be adduced and will interfere with witnesses if released, since they know the witnesses; the 1^st Applicant (Ojok Ceasar) was the ring leader who commanded the criminal operation, and his sureties being a wife and a daughter will not compel him to honour any bail terms; the offences were $10$ committed with a lot of violence and injuries were sustained by the victims (sic) who now live in fear of the Applicants thus the Applicants will interfere with the prosecution case; all the proposed sureties are not substantial; the 5^th Applicant (Opiro Michael) has furnished no proof of ill-health which cannot be treated at the Prison Medical facility; the 6^th Applicant (Okot 15 Stephen Bob) does not have a National ID and there is no proof of its loss; there is still tension in the community as both clans tend to incite violence against each other and Police is investigating two files vide Nwoya- CRB-498-21, for aggravated robbery lodged by the complainant (unnamed) against individuals (un named) from the other clan, Prosecution, therefore, 20 believes that granting the applicants bail could sow seeds of violence in the community as both sides are still bitter and have not completely reconciled from the incidents that occurred; there are still suspects at large and efforts to apprehend them have thus far been futile; and, given the gravity of the offence, the Applicants are likely to abscond and frustrate 25 the prosecution case.

Hugodu

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## Rejoinder affidavits

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The 1^st Applicant (Ojok Ceasar) denied being a ring leader. He denies that the alleged criminal events took place. He stated that his sureties are substantial and further proposes his first wife, Ayaa Mary to be an additional surety. The 6^th Applicant (Okot Stephen Bob) stated that he lost his National Identity Card, but his relatives have since obtained NIRA (National Identification Registration Authority) confirmation to that effect, a copy of which he attaches. The 7^th Applicant (Ocira Emmanuel) maintained he is 17 years old and went ahead to propose second surety, a one Oola Sunday, a brother. The 9^th Applicant presented additional surety, a one Acaye Samuel, an uncle.

### **Representation**

Mr. Watmon Ronald Brian appeared for the Applicants while Ms. Sarah Amony, Chief State Attorney, represented the Respondent. The Applicants 20 were before court. Learned Counsel for the Applicants introduced sureties and relevant documentations. Both officers of court submitted orally. Court has considered the arguments and will not reproduce them for brevity, unless necessary, and court remains grateful to both Counsel.

Huroli

#### $\mathsf{S}$ Determination.

I have noted that the Application is omnibus in nature. The law is that omnibus applications have no place under our laws and practice. Each Applicant for bail must file separate application, stating reasons peculiar to him/her. See: Katebarirwe Alfred & Komunda Ephraim Vs. Uganda, Criminal Application No. 165 of 2019 (Court of Appeal), Kakuru, JA

# This court made a similar observation in the case of **Opiyo Charles alias** Small Vs. Uganda, Criminal Misc. Application No. 26 of 2022. Court still stands by this legal position. In the foregoing case, this court, however, 15 excused the omnibus application, relying on article 126 (2) (e) of the Constitution of Uganda, 1995, which enjoins courts to do substantive justice and avoid technicalities, but of course, subject to law, and depending on the circumstances of each case. Article 126 (2) (e) of the Constitution, 1995, is thus no license for breaking the rules of procedure 20 of court. It, however, appears some practitioners before this court are yet to appreciate the position of the law on bail, and comply.

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$(RIP)$ .

Having perused the Motion, I note that the grounds are substantially common to all the Applicants. However, the Applicants' affidavits are not 25 necessarily common as each deposes to matters peculiar to his circumstances. Be that as it may, I will excuse the procedural flaw, and

Hursdin

$\mathsf{S}$ consider the application on merit. It also seems to me learned counsel wanted to kill many birds with one stone hence his choice of a flawed procedure. This practice ought to be discouraged by members of the Bar. Therefore, finding comfort in the case of **Utex Industries Ltd Vs. AG, SCCA No. 52/1995** I have disregarded the procedural flaw by treating it as a technicality so as to seem to do substantive justice in the matter. $10$

Turning to the merits, bail has been explained to mean: an agreement or recognizance between the accused (and his/her sureties, if any), and the court, that the accused will pay a certain sum of money fixed by court should he/she fail to appear to attend his/her trial on a certain date.

See: B. J Odoki: A guide to criminal procedure in Uganda (2^nd Ed.) 1990., 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 (Lady Justice Alividza, J.)

Bail serves the purpose of ensuring that an accused person appears to answer the charge against him/her without being detained in prison on remand pending trial. The effect of bail is to temporarily release an accused person from Prison custody.

Hudodin

- The law on bail is now fairly well settled. Several principles governing $5$ pretrial bail have been laid down by courts. This court, in the case of **Opiyo** Charles alias Small Vs. Uganda, Criminal Misc. Application No. 26 of **2022** attempted to summarize the principles that govern bail. This court noted that, the principles are general in nature and some may or may not apply to bail Application before the Magistrates Courts. The general $10$ principles which ought to guide court, depending on the facts and circumstances of each case, therefore, are; - a) An accused person has a right to apply for bail, and section 15 of the Trial on Indictments Act does not take away an accused person's right to apply for bail. See: Article 23 (6) (a) of the Constitution,1995; Foundation for Human Rights Initiative (hereafter, FHRI) Vs. Attorney General, Constitutional Appeal No. 03 of 2009 (SCU) - 20 b) Bail is meant to protect and guarantee 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, 1995 and FHRI VS. AG (SCU) Katureebe, CJ. - 25

c) Court is supposed to balance between the competing rights and interests of an accused with the needs and interests of society at large, to prevent and punish crimes committed within its midst. This

Hurson.

is 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 with the values, norms and aspirations of the people. See Article 126 (1) of the Constitution, 1995. So people are important and are major beneficiaries of the criminal (and civil) justice system.

- d) The most important consideration for grant of bail is whether the accused will turn up for his/her trial and will not interfere in any way with evidence. - 15

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- e) Court may, in an appropriate case, consider the immediate interests of the accused even particularly with regard to his/her personal security, particularly in grave offences like rape, murder, child kidnap, aggravated robbery, aggravated defilement, etc. where there may be a real danger to the accused person from members of the public where the offence is committed. See: **FHRI Vs. AG; Abindi** Ronald & another Vs. Uganda, Misc. Criminal Application No. 020 of 2016 (Mubiru, J.). - 25

f) Court exercises discretion whether to grant or not to grant bail, and the discretion has to be exercised judiciously. See Article 23 (6) (a) of the Constitution; Uganda Vs. Col. (RTD) Dr. Kiiza Besigye, Constitutional Reference No. 20 of 2005. (Constitutional Court)

Harodin g) When a person has been on remand for the periods stipulated in Articles 23 (6) (b) and (c) of the Constitution (providing for remand of 60 days without trial in a matter triable both by the Magistrates Court and the High Court, and 180 days without committal in a matter triable only by the High Court), the court has no discretion whether or not to grant bail. Court must grant bail but still exercises discretion in setting the bail terms and conditions. See: FHRI Vs. AG (SCU).

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- h) There is a need to prove exceptional circumstances to the 15 satisfaction of court, that, they exist, justifying release on bail, and that the accused will not abscond. Court can then consider whether or not to consider these exceptional circumstances, given the circumstances of each case. The exceptional circumstances are; - $i)$ Grave medical illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody. - ii) A certificate of no objection by the Director of Public Prosecutions. - iii) The infancy or advanced age of the accused.

Hurson

See: Section 15 $(1)$ (a) and (b), and section 15 $(3)$ of the Trial on Indictments Act, Cap 23.

- i) Court may not restrict itself to only the three exceptional circumstances listed in section 15 (3) of the TIA but may consider other 'exceptional circumstances' which might exist, in the given circumstances. See FHRI Vs. AG (SCU). - j) The requirement to prove exceptional circumstances listed in section 15 (3) of the TIA are, therefore, merely directory. The provision merely offers guidance to court and not direction to court. The High Court still retains discretion to either grant or not to grant bail, even where the exceptional circumstances are not proved in respect of the offences listed in section 15 $(2)$ of the TIA. - k) Court may take into account the following factors, in considering 20 whether or not the accused is likely to abscond; - a) Whether the accused has a fixed place of abode within the court's jurisdiction or is ordinarily resident outside Uganda; - b) Whether the accused has sound sureties within the jurisdiction, to undertake that the accused shall comply with the conditions of his or her bail;

Heraden.

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- c) Whether the accused has on a previous occasion, when released on bail, failed to comply with the conditions of his or her bail; and - d) Whether there are other charges pending against the accused.

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l) Whereas the above factors regarding whether or not an accused could abscond, are permissive, in court's view, they all appear relevant, when court is determining whether or not an accused person is likely to abscond.

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- m) The requirement to prove exceptional circumstances and that the accused will not abscond are therefore not mandatory, though justified. This is because courts have a duty to protect society from lawlessness and must, therefore, guard against absconding and the danger of interfering with the witnesses or evidence. - n) Requiring an accused person charged with serious offences to prove exceptional circumstances before court can exercise its discretion as to whether to grant or not to grant bail, is not unconstitutional and does not contravene either Article 23 (6) or article 28 of the Constitution, 1995. Court retains discretion whether or not to

HuroQu.

- overlook the exceptional circumstances, but the discretion must be exercised judiciously. - o) Once the court decides to grant bail, it should be on such terms as the court considers reasonable. Reasonableness requires that the court weighs all relevant factors before granting bail to an accused person.

## Consideration of the grounds for and against bail

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I have considered all the material placed before court and arguments $15$ advanced for and against bail in this matter. In my view, in bail matters, court is not enjoined to accord decisive weight to the one or the other or all the factors mentioned. Court at all times retain the discretion to decide whether and to what extent any one or more such pros and cons are found to exist and what weight each should be accorded. The factors listed are 20 thus only a guide.

Submitting on the nature of the accusation, Mr. Watmon Brian argued that, although the offence indicted is aggravated robbery, the allegations emanated from a land dispute that existed between the accused persons and the complainant. To this, Ms. Amony disagreed, contending, no such evidence is apparent before court.

Hursdan

$\mathsf{S}$ Considering the varying contentions, what court can say about these arguments, is that, whereas there could be a dispute respecting to land between the complainant and the accused persons, once there is an allegation of a crime, the crime and the civil dispute have to be divorced from each other and the allegations of a criminal nature looked at on merit. 10 Land disputes that degenerate into acts of criminality cannot be treated as civil matters per se but a crime. Option for civil redress could of course still be available to a complainant who has been criminally wronged. However, criminal wrongs are committed against the State and that is why, under our Constitution, every prosecution is brought in the name of the 15 State and in the public interest. As I understand learned counsel for the Applicants, I think he pressed the argument for the view that, since the alleged crimes are shrouded in land dispute, then the Applicants should automatically be considered for grant of bail. With respect, that cannot be the yard stick in bail matters.

I have, however, considered the indictment and note that, the Applicants are alleged to have also assaulted the principal of the victim and the principal's family members. This allegedly happened on the principal's garden which the victim was ploughing using a tractor. It is interesting that there is no separate count(s) respecting those allegations touching the other victims. If they do exist, then such evidence was not placed before this court. I also note that, the allegations bring to mind, other possible

HUAND ...

$\mathsf{S}$ offences against the Applicants, which are equally serious in nature, but have not been preferred. Court is of course aware that the State best understands the case and court may not question the DPP's choice on what offences to charge and those not to charge in the particular circumstances. Be that as it may, it is apparent from both the Applicants' case and the Respondent's that, there seems to be a land dispute between $10$ the Applicants and the family of Oringa Mark (the principal of the victim). The circumstances of the commission of the alleged offence, from the Indictment and the Summary of the case although not evidence, seems to me, to confirm this. The Respondent's single witness allude to this fact. He in fact discloses much more when he deposes that, there is tension 15 between the clan of the complainant (I think he meant the clan of Oringa Mark) and the Applicants' clan. The good D/AIP even speaks of fresh matters which Police is investigating connected to other allegations of aggravated robbery said to have been lodged by an unnamed complainant 20 against unnamed individuals. To court, this shows there is more than that meets the eye. The State witness also deposes that, there is fear of sowing seeds of violence in the 'community' should the applicants be released on bail. In my view, the nature of the instant accusation albeit being serious, is still bailable, just like all offences in our statute books. I, therefore, find 25 the offence with which the Applicants are indicted, bailable.

Heaven.

$\mathsf{S}$ The other argument canvassed relates to exceptional circumstances. The 7^th and 8^th Applicants (Ocira and Opiyo) were presented as persons of 17 years of age at the time they allegedly committed the offences. Their counsel argued that, this factor should weigh in their favour. This line of argument was vehemently resisted by the State. The State Counsel 10 submitted that, whereas these applicants presented birth certificates issued by Anaka Town Council, indicating that A7 was born on 20^th December, 2005, and A8 was born on 13^th October, 2006, meaning when they allegedly committed the offence on 12^th July, 2021, they were minors, the State Counsel contended, the birth certificates are suspect. She insisted, since A7 and A8 are alleged to have been students in Anaka 15 Integrated SS in senior one, and all progressed to senior two, in 2019 and 2020, respectively, their Primary Leaving Examination (PLE) Result Slips should have been adduced in evidence, as these documents indicate accurate age of students whoever sat PLE. It was argued, the parents/ 20 relatives of the two applicants were not helpful either, as they could not produce other credible documents such as immunization cards of the Applicants when young, or baptism cards, to confirm their true ages. The Birth Certificates having been issued when the two applicants were already on remand, it was submitted, are questionable in the absence of other 25 supportive documents. The State counsel reasoned that, the verbal statements that the two applicants were born in the years stated, remains inconclusive.

Hardin

In my considered view, given that the age of the 7^th and 8^th Applicants have $\mathsf{S}$ become contentious, and are likely to be at issue at their trial, court will not resolve it and thereby declines to say more on it. It suffices that, the State will bear the burden of proving that these two accused persons were adults at the time they are alleged to have committed the offence.

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I next consider the sureties presented for each of the applicants. Whereas the State conceded that there were no objections with regard to some sureties, the learned Chief State Attorney had reservations on others. I will, therefore, consider all sureties, in respect of each applicant.

The first Applicant (Ojok Ceasar) who said he is 58 years old, presented three sureties, namely Ayaa Mary, a spouse, aged 61 years, a peasant farmer, and a resident at the 1^st Applicant's home. This surety has a National ID and LC1 letter. The State argued, this surety was presented at the last minute. The State Counsel contended, there was no time to verify the details of the surety. I think this argument although valid, does not take away the fact that Ayaa Mary is a substantial surety. The State still had time to verify and file any adverse report to court in respect of this proposed surety, as permitted during the hearing. At the time of delivering this Ruling, no adverse report had been presented about Ms. Ayaa Mary. 25 Court finds Ayaa Mary substantial. The second surety is also a spouse of the 1^st Applicant. She was introduced as Auma Betty, aged 47 years, a

Hupodu.

$\mathsf{S}$ peasant farmer. Her national ID and LC 1 letter were presented. No objection was taken regarding her. Court finds her substantial. The Daughter of the 1^st Applicant, Lawino was also presented as the third surety. Although she was not objected to, I find her not substantial. She is relatively very young and appears incapable of acting as such, to compel $10$ her father to attend his trial, if granted bail.

The second Applicant (Ojok Innocent alis Vincent) who said he is 30 years old, presented two sureties, his mother Aciro Cecelia, 53 year old. She resides in Bidati Cell, just like the sureties of the 1^st Applicant. The second $15$ surety is Uma Charles, a brother. Their documents were submitted. The State objected to the 2^nd Surety, arguing, he lied that he is a brother of the 2^nd Applicant yet his parents differ. This surety told court they have different mothers. I think he loosely calls the 2^nd Applicant a brother, as per the Acholi custom, which court takes judicial notice of. Court did not further probe this fact as it is not relevant. The important fact is, the surety 20 and the 2^nd Applicant are from the same Bidati Cell, Anaka Town Council, Nwoya District, and are related. Court finds both sureties substantial.

The 3rd Applicant (Ojok Patrick) who is 32 years old, presented two sureties. The first is Auma Karoline, a sister of the Applicant, claimed to be 32 years old, a peasant farmer and resident of Bidati Cell. The second is Ocaya Isaac, aged 26 years, peasant farmer, and a younger brother of

Heaven

$\mathsf{S}$ the Applicant. They presented their relevant documentations. The State objected, submitting, the 3^rd Applicant lied about his relationship with the sureties. It was urged, their letters of introduction refer to Auma as a nice while Ocaya is an uncle of the Applicant. Court finds the discrepancies minor. It does not necessarily mean this Applicant lied on oath. It seems due to their close age bracket, the 3^rd Applicant conveniently calls these $10$ sureties sister and brother, respectively, instead of strictly speaking 'niece' and 'uncle', respectively. Again, this is a common practice among the Luo people, a fact Court takes judicial notice of. I find nothing dishonest about what the two sureties presented. I find the sureties presented by the third 15 Applicant substantial.

The 4^th Applicant (Okello Godfrey Henry) who is 30 years old, presented Lacaa Janeth, a 37 year old, peasant farmer, an auntie to the Applicant and resident of the same area (Bidati Cell). The other surety was Ocira 20 Charles, aged 38, an uncle to the Applicant. The sureties presented their documentations. The State did not object. The only objection was with respect to the 4^th Applicant's own documentations. It was submitted, his national ID shows that the 4^th Applicant comes from Gulu, yet the LC 1 Letter was obtained from Bidati Cell in Nwoya. It was submitted, the applicant has two different addresses. With respect, the objection is not 25 sustainable because, a place named on the National ID, as far as this court understands, is the voting Centre, and may not necessarily show that at

Hutsem $\mathsf{S}$ the time a person applies for bail, or standing as surety, the person necessarily resides where the National ID indicates. I thus find no problem with the 4^th Applicant's current address being the place he describes, just as his sureties. The objection fails. In any case, the objection does not affect the proposed sureties. I find the sureties substantial.

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$15$

The 5th Applicant (Opiro Micheal) who is 47 years old, presented Alanyo Grace a 44 year old, lady and a spouse and resident of Bidati Cell. He also presented Okello Ivan, his son aged 25 years. These sureties had their documentations. They were not objected to. The State argued, this applicant claimed to suffer from Hepatitis B, but presented no proof. Court agrees. However, as noted, exceptional circumstances is not a mandatory requirement for bail. Court still exercises judicial discretion whether or not to insist on exceptional circumstances, depending on the facts and circumstances of each case. All in all, court finds the sureties presented by the 5^th Applicant, substantial.

The 6^th Applicant (Okot Stephen Bob) who is 28 years, presented Akello Margaret aged 57, a biological mother. He also presented Okello Charles, aged 37 years, an elder brother. These had the requisite documentations. The sureties were not strongly challenged, save that Okello Charles happens to be the Chairman LC 1 of Bidati Cell who introduced all the sureties in this application. The State only submitted that, the Applicant

Husson.

- $\mathsf{S}$ had no National ID but then he presented NIRA confirmation that he lost the ID. The State was unhappy that this Applicant only reacted when the State had put the matter in issue (*vide* an opposing affidavit.) With respect, there was nothing wrong with the Applicant satisfying the legal requirement for bail in his rejoinder affidavit. The State should be pleased $10$ that the 6th Applicant indeed has ever been issued with National ID. He was at least honest to court and the State. The NIRA Letter confirms this fact, and details the Applicant's NIN. I find the objection not necessary. I also find the sureties presented by the 6^th Applicant substantial. - The 7^th Applicant (Ocira Emmanuel) whose age is contentious, presented $15$ Oryem Samuel Opuk, aged 50 years, his biological father, and a resident of Bidati Cell. He also presented Oola Sunday, aged 26, a brother. These two presented their requisite documentations. Since the sureties were not objected to, I find them substantial.

$25$

The 8^th Applicant (Opiyo Justine) whose age is also controversial, presented Oloya Patrick, aged 43, a father, and resident of Bidati Cell. Akwero Nancy, aged 40, the biological mother of the Applicant, was also presented. Both sureties had all the documentations required by law. They were not challenged, and court finds them substantial.

Hlatokum.

$\mathsf{S}$ The 9^th Applicant (Opiyo Stephen), aged 31 years, too, presented sureties. They are; Acaye Samuel, an uncle aged 56, and resident of Bidati Cell. The second was Aber Milly, aged 28 years, spouse of the Applicant. Both Sureties had the requisite documentations. The State prayed for time to verify the details of Acaye Samuel (1^st surety), which court allowed. At the time of reading this Ruling, there was no adverse report about this surety. $10$ Court accordingly finds both sureties substantial.

Having considered the sureties, court is satisfied that they understand their duties of ensuring the Applicants attend court, and fulfills any bail conditions, should court grant bail to the Applicants.

$15$

The other objection pressed by the State, is that, the applicants have since been committed for trial, and *ipso facto*, they know the prosecution witnesses and will interfere with the witnesses. The State made an interesting argument while relying on the Applicants' claim of a pending 20 land dispute with witnesses of the complainant. She argued, the applicants risk interfering with the State witnesses. I find the fear of the State not made out. Rather, I am of the view that, the Applicants understand the consequences of obstructing witnesses, which is criminal. 25 The State also has all the machinery to ensure that any such attempts are decisively dealt with, in accordance with the law. If necessary, evidence can be placed before court, to consider cancelling bail of Applicants, if

Hurodin.

- $\mathsf{S}$ granted, only for them to interfere with the prosecution witnesses. I also think, since the Applicants are peasants and have not been shown to wield any influence in their community, the State fears are remote. I find the objection not strong. - $10$ The State also argued that, exceptional circumstances have not been proved. That is true, and as observed by court, they need not be proved, as it is no longer a mandatory requirement for bail.

The State also submitted that, the nature of the offence involved violence. $15$ That is true, however, the allegations against the Applicants remain to be proved. Reference was also made to the summary of the case. I have already summarized the gist of the accusations. The alleged theft of the property of the victim is said to have been accompanied with violence while in the field which the victim was ploughing, having been hired by Oringa 20 Mark, said to be the owner of the land. It is not shown that Kizza Emmanuel who is the victim is at the risk of being assaulted or robbed by the Applicants, if released on bail. The fears that violence could be meted on Oringa Mark and his family by the Applicants (Accused persons), in my view, is remote, because, at present, the violence alleged to have been meted on Oringa and his family members, is mysteriously not the subject 25 of any charge known to this court. Of course he may have not been robbed, but the allegations comprise offences at law and yet none is preferred in

Huasen.

respect of the alleged violence against the alleged land owner. In the $\mathsf{S}$ circumstances, the fear of violence between the clans alleged, is remote. The State has all the capabilities to foil any acts of lawlessness and bring all perpetrators to book. Should the Applicants feature as participants in acts of violence, once out on bail, their bail can be cancelled, if court is moved and the allegations proved. 10

The State Counsel argued that, generally, these sureties have nothing of value to forfeit to court, should the Applicants get bail, only to escape. The impecunious status of sureties is no ground for finding them not substantial. If that were the law, poor persons would never get bail. I am 15 convinced, these sureties, being close relatives of the Applicants, are in good standing to do all it takes, to ensure their court attendance. A surety is a pledge by another person, guaranteeing that, if the accused person does not appear before the court, at the specified time and date, he/she will pay a certain sum of money to the court. The amount of money which the accused or a person standing surety for him will be required to pay, should the accused person default, is called a security. A surety has a duty to court to ensure that the accused does not abscond. A surety must be at court, ready to explain, in the event of the accused's failure to attend court. A surety can even arrest the accused if he/she has reason to believe that the accused is about to abscond. If the accused person absconds, the

Husodu.

$\mathsf{S}$ surety will be called upon to show cause why his/her recognizance should not be forfeited to the State.

See: B. J Odoki: A guide to criminal procedure in Uganda (2^nd Ed.) 1990, Page 71; Francis J. Ayume, Criminal Procedure and Practice in Uganda, page 59.

$10$

In the case of **Uganda Vs. Hajji Abas Mugerwa & another (1975) HCB 216**, it was held that, it was the duty of each surety to make sure that the accused attended the court on the date mentioned in the bond and continued to attend until otherwise directed by court.

In her address, the learned Chief State Attorney further submitted that, the State is ready for trial and only requires a date from Court. This gesture is appreciated. However, criminal trials in this court are not conducted as court would wish to. Resources are inadequate and sometimes delay, yet they are a prerequisite for criminal trials, as assessors, lawyers on state brief, and witnesses have to be facilitated to attend court. I, therefore, see a real likelihood of the trial of the Applicants not happening in the next foreseeable session of court, as court awaits resources to cause list matters, on the basis of 'first in' 'first out'. This is obviously not a matter that could, on the face of it, benefit from plea bargaining arrangements

Hussen.

$\mathsf{S}$ which require less resources, given the Applicants have not expressed such interest, at least to court.

Having considered the case in totality, I wish to state that, the principal consideration of court in this matter, is whether the release of the accused persons will prejudice the pending trial. This was the view expressed in Attorney General Vs. Joseph Tumushabe, Constitutional Appeal No. **03 of 2005,** where Mulenga, JSC (RIP) stated:

$10$

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

In this case, I am of the view that, if released on bail, the Applicants will not prejudice the pending trial. Should they do so, the State still has 20 recourse to court to review bail. For now, the Applicants enjoy the presumption of innocence, and having already stayed on pretrial remand for two years and two months thus far, this court exercises its discretion to grant bail. They should enjoy their liberty as they await their trial. The Application succeeds and bail is granted to the Applicants on the following $25$ terms;

1. Each Applicant is granted non cash bail of Ugx 2, 000,000 each.

Nector.

- $\mathsf{S}$ - 2. Each surety of each applicant is bonded to court in the sum of Ugx 5,000,000 each, not cash. - 3. The Applicants shall report to the Chief Magistrate of Nwoya Chief Magistrates Court, which is proximate to their area of abode, once a month, on every first Monday of the Month, starting November, 2023 until further directed by this Court. Should such day for their reporting turn out to be a Public Holiday, the Applicants shall report on the next working day.

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4. Any acts of lawlessness by the Applicants, once brought to court's attention and proved in a judicial proceeding, shall result in the bail cancellation.

20 It is so ordered.

Delivered, dated and signed this 6^th October, 2023.

Hussam 06/10/2023 George Okello **JUDGE HIGH COURT**

Ruling read in Court. $\mathsf{S}$

## 12:05pm

6^th October, 2023

## $10$ **Attendance**

Ms. Sarah Amony, Chief State Attorney, for the Respondent. Mr. Brian Watmon, Counsel for the Applicants. Applicants in Court. Mr. Ochan Stephen Court Clerk.

Husselm. 06/10/2023.

George Okello JUDGE HIGH COURT