[2024] UGHC 629

The Republic of Uganda

In the High Court of Uganda at Soroti

Criminal Miscellaneous Application No. 0006 of 2024

(Arising from Criminal Case No. AA 598 OF 2022, Soroti CRB No. 243 of 2022)

A6. Oriokot Tom Alias Epunu 10 ...................................... A7. Ebiru Patrick

Versus

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Uganda ::::::::::::::::::::::::::::::::::: ::::::::::::::::::::::::::::::::::::::

Before: <u>Hon. Justice Dr Henry Peter Adonyo</u>

**Ruling on Bail**

1. Introduction.

This is an application brought A6. Oriokot Tom Alias Epunu and A7. Ebiru Patrick It is by notice of motion under Articles 20(2), 23(6)(a) & 28 (1) & (3)(a) of the 20 Constitution of the Republic of Uganda 1995, Section 17(2) of the Judicature Act and Section 14 of the Trial on Indictment Act Cap. 23 for orders that;

a) The applicants now on remand at Soroti Government Prison be released on bail pending the hearing of their case upon such conditions as this Honourable court shall deem fit.

## 2. Grounds. 5

The grounds of this application as set out in the application and supporting affidavits sworn by the applicants are that;

- a) The applicants have a fundamental constitutional right to apply for bail and this Honourable Court has the discretion to consider the grant of bail. - b) That the applicants were arrested sometime in October 2022 and charged 10 with the offences of Aggravated Robbery C/s 285 & 286 of the Penal Code Act and Attempted Murder C/s 204 of the Penal Code Act and were committed for trial to the High Court on the 16^th of March 2023 and have since been remanded in Soroti Government Prison. - c) The applicants are presumed innocent till proven guilty or until they plead 15 guilty to the charge. - d) That the applicants have been on remand in Soroti Government Prison for over Nine (9) months and they have clocked the mandatory remand period of 180 days and are therefore entitled to apply and be released on bail. - e) The applicants have permanent and fixed places of abode at Ogorai village, 20 Odudui Parish, Arapai Sub-county, Soroti District within the jurisdiction of this Honourable Court.

f) The applicants have each presented three (3) sureties who understand their obligations towards this Honourable Court and are ready to be presented before this Honourable Court for examination and approval.

g) The applicants will not interfere with any of the witnesses of the prosecution or any evidence to be tendered in support of the charge.

- The respondent in an affidavit in reply sworn by State Attorney Okello Paul $\mathsf{S}$ objected the application on the following grounds; - a) That the applicants are charged with the offences of aggravated robbery c/s 285 & 286 and attempted murder c/s 204 of the Penal Code Act, which offences attract a maximum penalty of death and life imprisonment respectively upon conviction thus the applicant is most likely to abscond bail in fear of the severe sentences upon conviction. - b) That the prosecution is ready with its witnesses since the accused have been committed for trial before this honourable court hence this application is intended to delay the hearing of the case. - c) That although the applicants have a constitutional right to apply for bail, the right to grant bail remains a preserve of this Honourable Court to which he prays that bail be denied. - d) That the applicants are likely to interfere with key prosecution witnesses considering the fact that the offences were committed with a lot of violence and attract maximum penalties of death and life imprisonment. - e) That the respondent has noted that all the recommendation letters which purport that the sureties and the applicants are residents of those given areas, however, no documentary proof such as land title, rent payments have been availed to support the claim and thus the applicant and his sureties have failed to prove that they have permanent and fixed places of abode within the jurisdiction of this Honourable Court. - f) The respondent verily believes that this Honourable Court is taking considerable measures to ensure that the applicants are cause listed for

trial as soon as possible and there is no need for the applicant to dwell on uncertainties if when trial will be commenced in the High Court.

3. Representation.

The applicant was represented by M/s Menya & Co. Advocates while the respondent was represented by the ODPP, Soroti Office.

## 4. Determination. 10

The position of the law is that when an application for bail is presented, the court takes into account the presumption of innocence as the primary principle for which a court, may in the exercise of its discretion, consider the releasing of an accused person on bail pending trial as is provided for under Article 28(3)(a) of

the Constitution of the Republic of Uganda, 1995 which states; 15

Every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty.

Additionally, Article 23(6)(a) of the Constitution of the Republic of Uganda provides that:

Where a person is arrested in respect of a criminal offence, he is entitled to apply 20 to the Court to be released on bail, and the Court may grant that person bail on such conditions as the Court considers reasonable.

The applicants herein have made this application in cognisance to the above provisions of the Constitution.

In their individual affidavits in support of this application, the applicants, while 25 exercising their rights to apply for bail, do concede to this Honourable Court's discretion to release them on bail pending the hearing of their case.

$\mathsf{S}$

The applicants are charged with the offences of aggravated robbery and $5$ attempted murder which are capital offences. These offences are bailable. however, whether the court is inclined to exercise the discretion to grant or not bail is a matter depending on the circumstances of each case.

Section 14(1) of the Trial on Indictments Act, Cap 23 explains further the standpoint outlined in Article 23(6)(a) of the Constitution as it underpins a court's 10 discretion to release an accused person on bail, at any stage of the proceedings, on taking from him or her a recognisance consisting of a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the case, to appear before the court on such a date and at such a time as is named in the 15 bond

The Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 under paragraph 5 provide for the general principles applicable in the consideration of a bail application thus;

The court shall, in considering a bail application, be guided by the following principles as enshrined in the Constitution— 20

(a) the right of an applicant to be presumed innocent as provided for in article 28(3)(a) of the Constitution;

- (b) the applicant's right to liberty as provided for in article 23 of the Constitution; - (c) the applicant's obligation to attend trial; - (d) the discretion of court to grant bail on such terms and conditions as the court 25 considers reasonable; and - (e) the need to balance the rights of the applicant and the interests of justice.

Paragraph 12 of the Constitution (Bail Guidelines for Courts of Judicature) $\mathsf{S}$ (Practice) Directions provides for contents of a bail application hence;

An application for bail shall contain the particulars of the applicant, accompanied $by-$

(a) a copy of the applicant's national identity card, or passport or aliens identification card, or employment card, or student identity card; 10

(b) an introduction letter from the Local Council 1 chairperson of the area where the applicant resides:

(c) where applicable, asylum seeker or refugee registration documents issued by the Office of the Prime Minister; and

(d) expounded grounds for the application. 15

Section 15(1) of the Trial on Indictment Act provides thus:

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 20

(b) that he or she will not abscond when released on bail.

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;

- 25 - (b) a certificate of no objection signed by the Director of Public Prosecutions; or - (c) the infancy or advanced age of the accused.

However, these special circumstances have been found by the Constitutional $5$ Court of Uganda to be non-mandatory.

On the other hand, Section 15(4) of the Trial on Indictment Act provides that; 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 10 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;

(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 15

(d)whether there are other charges pending against the accused.

Consequently, in deciding whether to grant or not to grant bail to the applicant, the court is commanded to consider an accused's demonstration that he/she will not abscond trial by considering the above factors, which must be examined one

by one and a decision made thereto. 20

In respect of this application, the said factors are considered hence.

a. Fixed place of abode.

The essence of a fixed place of abode is traceability of an accused in the event of abscondment or whenever necessary. Section 15(4) (a) of the Trial on Indictment

Act provides that in considering whether an accused is likely to abscond court 25 may take into consideration whether the applicant has a fixed place of abode within the jurisdiction of the court. This provision is amplified by paragraph 13(k) of the Constitution (Bail Guidelines $\mathsf{S}$ for Courts of Judicature) (Practice) Directions. While the law does not define the phrase 'fixed place of abode' what is important is that the fixed place of abode must be within the jurisdiction of the court considering the bail application. Where the applicant fails to prove this under section 15(1) of the TIA the court may deny him bail. 10

A6 Oriokot Tom alias Epunu under paragraph 9 of his affidavit in support stated that he is a true resident of Ogorai Village, Odudui Parish, Arapai Sub-county Soroti District within the jurisdiction of this Honourable Court and he has been introduced by the LC1 of his area.

Annexure 'A' to his affidavit is a copy of a letter dated 10^th of December 2023 15 authored by the LC1 Ogorai village in reference to Tom Epunu. Herein he states that the Tom Epunu is a true permanent resident of his area.

A7 Ebiru Patrick under paragraph 10 of his affidavit stated that he is a true resident of Ogorai Village, Odudui Parish, Arapai Sub-county Soroti District within

the jurisdiction of this Honourable Court and he has been introduced by the LC1 20 of his area.

Annexure 'C' to his affidavit is a copy of a letter dated $10^{th}$ of December 2023 authored by the LC1 Ogorai village in reference to Ebiru Patrick. Herein he states that the Ebiru is a true permanent resident of his area.

I have considered that the applicants have presented introductory letters from 25 the LC1 chairperson of Ogorai village in which is indicated that they are true permanent residents of his area. That being so, I find that they have proved fixed place of abode.

## b. Sureties.

$\mathsf{S}$

A Surety is defined under Paragraph 4 of the Constitution (Bail Guidelines for Courts of Judicature) Practice Directions to mean;

A person who undertakes to ensure that the applicant will appear in court and abide by the bail conditions and who furnishes security which may be forfeited to

State if the applicant fails to appear in court. 10

> Furthermore, Section 15 (4)(b) of the Trial on Indictment Act and paragraph $13(1)$ (I) of the Constitution (Bail Guidelines for Courts of Judicature) Practice Directions provides that in considering whether an accused is likely to abscond the court shall consider whether the accused has sound sureties within the jurisdiction to

undertake that the accused shall comply with the conditions of his or her bail. 15

Paragraph 15 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions provides for determinants on the suitability of a surety thus;

(1) When considering the suitability of a surety, the court shall take into account the following factors—

- (a) the age of the surety; 20 - (b) work and residence address of the surety; - (c) character and antecedents of the surety; - (d) relationship to the accused person; and - (e) any other factor as the court may deem fit. - (2) Subject to sub-paragraph (1) the proposed surety shall provide documentary 25 proof including— - (a) a copy of his or her national identity card, passport or aliens identification card;

(b) an introduction letter from the Local Council 1 Chairperson of the area where $\mathsf{S}$ the surety is ordinarily resident; or

(c) asylum seeker or refugee registration documents issued by the Office of the Prime Minister.

In this application, A6 Oriokot Tom alias Epunu presented three sureties for examination by this court and these are; 10

Omagor Aloysias his father, Anango Regina his maternal aunt and Esou Vincent the vice chairperson of Ibasere clan. All the proposed sureties are permanent residents of Ogorai Village, Odudui Parish, Arapai Sub-county Soroti District.

The sureties were introduced to this court by the LC1 chairperson of Ogorai village vide annexures 'B1', 'B2' and 'B3', which are letters of introduction dated 15 10^th of December 2023.

These letters all indicate that the proposed sureties are true permanent residents of Ogorai village with Omagor being the father to the 1^st applicant and Anango his aunt. Further in the said introductory letter, the proposed sureties are stated

to be peasants in the area who are humble and law abiding citizens. 20

I note that the document 'B3' is not authored by the LC1 Ogorai village rather it is Esou Vincent who introduces himself as vice chairperson of Ibasere clan to which the applicants belong and that he has a permanent home in the Ogorai village.

Copies of the proposed sureties' National IDs are attached. The documents for 25 Omagor Aloysias has NIN number of CM760381013X3C and this document indicates him as a resident of Olocho village, Odudui parish, Arapai sub county in Soroti aged 48 years.

For Anango Regina document has the NIN number of CF64038102M8ZK and it $\mathsf{S}$ indicates her as a resident of Olocho village, Odudui parish, Arapai sub county in Soroti aged 60 years. Esou Vincent is indicated as a resident of Katabi-Busambagala village, Katabi parish, Division A in Entebbe Wakiso aged 58 years.

A7 Ebiru Patrick presented three sureties for examination by this court and these are; Anyong Suzan his wife, Angida Hellen his mother-in-law and Esou Vincent his 10 clan vice chairperson all resident of Ogorai Village, Odudui Parish, Arapai Subcounty Soroti District.

Copies of their introduction letters dated 10^th of December 2023 and national IDs were attached as 'D1', 'D2' and 'D3'. Anyong and Angida are introduced by the

LC1 of Ogorai village as true permanent residents of his area, in their individual 15 letters he introduces them as the wife and in-law to the applicant both being peasants in his area who are humble and law abiding citizens.

As in the case of A6 Oriokot, Esou Vincent letter of introduction was not authored by the LC1 Ogoria rather it is a self-introduction.

- Copies of the proposed sureties' national IDs indicate Anyong Suzan's document 20 has NIN Number of CF950381029TDH and is a resident of Olocho village, Odudui parish, Arapai sub county in Soroti aged 29 years, while that of Angida Hellen has NIN Number of CF690381029NOF and that she is a resident of Olocho village, Odudui parish, Arapai sub county in Soroti aged 55 years. - As for Esou Vincent it is indicated as a resident of Katabi-Busambagala village, 25 Katabi parish, Division A in Entebbe Wakiso aged 58 years.

I find that for A6 Oriokot Tom alias Epunu, his father Omagor Aloysias and maternal aunt Anango Regina are substantial sureties while Esou Vincent is not for the reason of self-introduction and not by LC1 chairperson of the area.

A7 Ebiru Patrick, presented his wife and mother-in-law, Anyong Suzan and Angida $\mathsf{S}$ Hellen. These are found to be substantial sureties while Esou Vincent is not for the reason of self-introduction and not by LC1 chairperson of the area.

Esou Vincent who was a proposed surety for both applicants having authored his own introduction letter failed to prove fixed place of abode, as is provided for by

Paragraph 15 of the Constitution (Bail Guidelines for Courts of Judicature) 10 (Practice) Directions which requires an introduction letter to come from the Local Council 1 Chairperson of the area where the surety is ordinarily resident not a self-introduction as was done by Esou. He is thus not found substantial.

The applicants in their individual affidavits in support under paragraph 12 and 13 respectively stated that the sureties are persons of good social standing and 15 respect who have been duly briefed on their duties as sureties which they confirmed to have understood. Counsel for the applicants in his submissions stated that the sureties will ensure that the applicants attend court whenever called upon.

The sureties herein are to ensure the attendance of the accused person before 20 court whenever required, have a duty to sign the bail bond form. They are also duty bound to inform court where an accused person is not able to attend and are liable to pay the bail bond sum should they fail to ensure the attendance of the accused person before court.

## 5. <u>Conclusion</u>.

On the basis of the and taking into account the severity of the offences for which the applicants are charged with, I am satisfied that this is a case where I should

- exercise my discretion and grant bail to the two (2) applicants pending their trial. $\mathsf{S}$ Bail is accordingly granted on the following conditions; - 1) Cash bond of Shs. 2,000,000/- for each applicant. - 2) Each of the Sureties is bound in the sum of Shs. 10,000,000/- not cash. - 3) The applicants and each of their sureties are to provide a recent photograph, telephone numbers and copies national IDs to the Registrar of this court and to the Chief Resident Soroti for filing and record purposes. - 4) The Applicants are to report to the Registrar of the Court once a month on the first Monday of each month with effect from 05/08/2024 until otherwise directed by court. - I so order. 15

Hon. Justice Dr Henry Peter Adonyo

Judge

2^nd July 2024

$20$