[2023] UGHCCRD 77

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CRIMINAL MISC. APPL. No. 68 of 2022

(Arising from Makindye Court Criminal Case No 101 of 2022)

**ONEBE FRANCIS**

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**APPLICANT**

Versus

**UGANDA**

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**RESPONDENT**

# **BEFORE: HON. MR. JUSTICE MICHAEL ELUBU RULING**

This application is commenced under Article 23 $(6)$ $(a)$ , and 28 $(1)$ and $(3)$ of the **Constitution of the Republic of Uganda**; and Section 14 $(1)$ and 15 of the **Trial on** Indictments Act, and Rule 2 of the Judicature (Criminal Procedure) (Applications) Rules S. I. 13-8.

The applicant, **Onebe Francis**, seeks orders that this Honourable Court be pleased to release him on bail. And secondly that it is in the interest of justice that this application be granted.

This application is premised on grounds set out in the Notice of Motion and particularised in an attached affidavit in support deposed by the applicant.

It is stated that Onebe Francis was arrested on the 7^th of September 2021 on suspicion of murdering his wife. Then on the 21^st of September 2021, together with his security guard, the applicant was charged with Murder c/ss 188 and 189 of the Penal Code Act and remanded in Luzira prison. On the 22^nd of September 2021 he was committed to the High court for trial. He avers that he has a right to apply for bail and to prepare for his defence. That he will not interfere with the prosecution or its witnesses. In any event the investigations are over. Besides he cooperated with the police in the conduct of inquiries. It is his evidence that he is 64 years old –an advanced age. Additionally, that he is now presenting with an enlarged prostate which requires treatment. The applicant states that he is also hypertensive. That these medical conditions cannot be properly managed by the medical treatment and care provided by the Prisons Medical Service. That he has a fixed place of abode in Bukasa Kijjwa village in found in Muyenga Kyadondo. That he also has substantial sureties who will ensure that he appears in court whenever he is required. That he will abide by any conditions of bail that this court may set. That he is also of good character. He adds that his previous denial of bail was unjustified because he was wrongfully accused of planning to abscond to the United Kingdom, which was a long planned trip. That the prosecution did not adduce evidence to back up this allegation that he would abscond. That there was an unfounded fear that he may interfere with investigations yet he extensively cooperated with the police during the inquiries and efforts made to trace for his wife. That the delay to prosecute his matter may result in concoction of evidence against him. Lastly that there is a suspect who was arrested and confessed to the commission of the murder.

The State opposes this application. In an affidavit deposed by Detective ASP Ochom Nobert it is stated that, due to the severity of sentence the applicant who is charged with murder faces, he may abscond if released on bail. That there is a high likelihood of the applicant interfering with inquiries since most of the witnesses in this case are his close relatives over whom he has great influence and can intimidate. That it was not true the applicant had cooperated with the police in search of his

wife as in the course of investigations the body of the deceased was recovered in his matrimonial home which led the police to believe that his claim that his wife had disappeared was a diversion. That the applicant is able to access his lawyers while he remains in prison. That it is not true that there is another suspect who has been arrested and confessed committing of the offence. That he has been able to file this application even when he is in detention. That the applicant has not provided cogent evidence that he will not abscond if released on bail. And if he did indeed abscond, it would be impossible to trace him. That it was in the interest of justice that the application be denied.

In rejoinder, the applicant avers that the affidavit in reply is malicious and laden with falsehoods. Additionally, that in the Daily Monitor Newspaper of the 13^th of July 2022, it was reported that a person was arrested and confessed to committing the crime.

The parties filed written submissions which are on record and will not be reproduced here. Nevertheless, I have studied them and will refer to them in determination of this application.

## Determination

Bail is a recognisance between the accused and the Court that the accused person will be in Court whenever required. It allows an accused person to avoid pre-trial detention and attend court from home. The court therefore remains seized of jurisdiction over the accused throughout and for that reason can alter the conditions, or even cancel the bail where reason for such action arises.

It is now settled that the court is clothed with the discretion whether or not to grant bail. It was held in Constitutional Ref No. 20 of 2005, Uganda vs Col (Rtd) Dr Kiiza Besigye that under Article 23 (6) (a) of the Constitution, the accused is entitled to apply for bail. It is also true that the right to apply for bail stems from the constitutional prerogative of the presumption of innocence.

When a court has judicial discretion, it is exercised by Court when it considers all that is before it and reaches a decision without taking into account any reason that is not a legal one. The Court acts within the rules of reason, justice and law, within the limits and the objects intended by a particular legislation. (See: **R** vs Board of **Education** [1990] 2 KB 165).

The relevant provisions of the legislation governing a release on bail by the High Court, within which court exercises its discretion, are Sections 14 and 15 of the Trial on Indictments Act (TIA). These are the sections that regulate release on bail for offences only triable by the High Court including Murder, the offence the applicant is charged with.

Section 15 $(1)$ of **TIA** stipulates,

Notwithstanding section 14, the court may refuse to grant bail to a person accused of an offence specified in subsection (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.

S.15 $(3)$ (c) of the **TIA** states,

(3) In this section, "exceptional circumstances" means any of the following—

(a) grave 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;

(b) a certificate of no objection signed by the Director of Public Prosecutions; $or$

(c) the infancy or advanced age of the accused.

Turning now to the unique circumstances of this case, the applicant relies on proof of exceptional circumstances. I will deal first with advanced age. The applicant stated that he is 64 years of age. It has long been held by this court that 50 years of age is advanced age for purposes of bail applications. The Constitution (Bail Guidelines For Courts Of Judicature) (Practice) Directions, 2022 place advanced age at 60. He has attached a national identity card stating he was born in 1958. Besides, the charge sheet, a prosecution document, puts his age at 63 years old in September 2021. In that regard therefore I find that his advanced age is proved.

He also relies on the ground of grave illness. I have studied the medical evidence attached in this case. I have also read the ruling of my brother Justice Gadenya made following a previous application for bail by the applicant here. He made a finding that the applicant had indeed proved grave illness. I find no cogent reason to depart from that holding.

In determining these applications seeking a release on bail, the other primary consideration is whether the applicant will be available to attend his trial whenever he is required in Court. For that reason, Section 15 (4) of the TIA specifies that the applicant must prove that he will not abscond.

$\mathsf{S}$

(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 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) 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.

The applicant here states that he has a fixed place of abode in Bukasa Kijjwa village and also produced four sureties.

I have considered this against the allegations made in the affidavit in reply. The applicant states the affidavit is false and laced with malice. The primary reason for this allegation is that there is a reference to Katwe CRB 1031/2021 in his affidavit. And yet this case stems from Kabalagala CRB 23/2021.

In my view an affidavit, just like other evidence, should always be examined as a whole, one isolated aspect will not vitiate the entire document. The detail of the affidavit does not strike me as alien to this case. I will not therefore on the basis of the CRB disregard the affidavit in reply. There is also no evidence to show that Katwe 1031/2021 is not in any way connected to this matter. For that reason I will not disregard the affidavit in reply.

Therefore, my evaluation of the application will consider all sides. It has been stated by this court before, and I agree, that in exercising the discretion to grant or not to

grant bail, all interests of the applicant, the respondent, and society as a whole ought to be given adequate and appropriate consideration (see Moaza Kromar vs Uganda HCMA 25 of 2017). I have therefore also taken into consideration the concerns of the respondent.

As stated, the decision whether or not to release an applicant on bail is discretionary. Having considered all the circumstances of this case and in view of all the foregoing, it is my considered view, that bail shall not be granted at this stage. The ends of justice would instead best be served by bringing this matter to trial expeditiously. The state has committed the accused for trial which is an indication that inquiries are complete. The applicant has also stated that he is concerned about the delay by the prosecution to prosecute his case.

Therefore, in spite of the circumstances here, this application is not granted. Instead, I direct that the applicant shall be placed on trial in the session of this Court starting in April 2023.

**Michael Elubu**

Judge

27.2.2023