[2023] UGHCCRD 191

#### THE REPUBLIC OF UGANDA

## IN THE HIGHCOURT OF UGANDA AT KAMPALA CRIMINAL DIVISION

# MISC. APPLICATION NO.139 OF 2022

(Arising from makindye magistrates court No.331/2021)

- 1. SEGUYA RICHARD - 2. BUKENYA

.................... APPLICANTS/ACCUSED **UMAR................**

### **VERSUS**

**..................... RESPONDENT/PROSECUTION UGANDA...**

#### **RULING**

#### **BEFORE: HON. JUSTICE ALEX MACKAY AJIJI**

The applicant instituted these application by Notice of Motion seeking for orders that: -

- 1) The Applicant now on remand at Luzira upper prison be released on bail. - 2) That they pray for any other and further reliefs s this Honorable court may deem fit.

The application is brought under the provision of Article 23(6) (a), 28(1) (3)(a) &Section 44(c) of the constitution of the Republic of Uganda 1995, section $14(1)$ and 15 of the Trial on Indictment Act Cap. 23, Rules 2 of Judicature (Criminal Procedure)(Application)Rules S. I 141-1). The grounds for the application are that:

- a) The Applicants have a constitutional right to bail on such conditions that this honorable court deem reasonable or fit. - b) That it would be in the interest of justice if the courtwere to grant bail to the accused person pending their trial.

### **Representation**

Counsel Sarah Awelo represented the accused persons from Nansubuga, Awelo & Co. Advocates while Irene Nakibungwe (State Attorney) argued against the application.

Both counsel made written submissions.

Counsel for the Applicants stated that the 1^stApplicant (Seguya Richard) has sound sureties and substantial sureties and have fixed places of abode within court'sjurisdiction. Therefore the sureties are;

- a) Buslwa Julieta female adult aged 48. She is an auntie to the accused and owns a restaurant called Tripple M. However she is also a resident of Lusaka village, urban council, Makindye 1 ward, makindye urban. KampalaDistrict. A copy of an introduction letter from the LC1 and a national ID NIN No. CF74068100WLMA Marked Annexure E and F respectively. - b) Second, surety is Babirye Babra aged 35 and a maternal aunty to the accused. She is a hair dresser by profession and a resident of Lusaka village, urbancouncil, makindye 1 ward, makindye urban. Kampala District. A copy of an introduction letter from the LCJ and a national ID NIN No. CF8710010161KK. Marked Annexure G AND H respectively. - c) Third surety is Matovu Mohamood Sadala aged 44 years, a neighbor to the accused and a builder by profession. A resident of Lusaka village, urban council, makindye 1 ward, makindye urban. Kampala District. A copy of an introduction letter from the LC1 and a national ID NIN No. CM78045100YWRK. Marked Annexure I AND J respectively.

## $2^nd$ Applicant's (Bukenva Umar) sureties are:

- d) Kezala Hamidu aged 59 and a father to the accused. He is a builder by profession and a resident of Lusaka village, urban council, Makindye 1 Ward, Makindye urban. Kampala District. A copy of an introduction letter from the LC1 and a national ID NIN No. CM63045100P4ZE. Marked Annexure K and I respectively. - e) Ms. Namulindwa Josephine aged 22 years a fiancé to the accused . She is a hair dresser by profession and a resident of Lusaka village, urban council, Makindye 1 Ward, Makindye urban. Kampala District. A copy of an introduction letter from the LC1 and a national ID NIN No. CF00012107NVCA Marked Annexure M AND N respectively. - f) Kamoga Ismail aged 21 years a brother to the accused . Abusiness man dealing in Onions. A resident of Lusaka village, urban council, Makindye 1 ward, Makindye urban. Kampala District. A copy of an introduction letter from the LC1 and a national ID NIN No. CF8710010161KK. Marked Annexure P and O respectively.

However, state attorney replied that the Applicants had already been committed to the high court to stand trial and there is credibleevidence pinning the Applicants. Futher the Applicants are charged with aggravated robbery which carries a maximum penalty of death and due to the severity of the above sentence, the Applicants are likely to abscond once released on bail. Further there are non-exceptional circumstance's demonstrated by the Applicants to warrant their release.

Further that the Applicants did not attach tenancy agreements or documents proving ownership of the land where they stay. Also regarding the sureties, they have not attached social economic standing of the sureties.

# Court's analysis

A bail applicant must not be deprived of his/her freedom unnecessarily or as merely punishment where they have not been proved guilty by a competent court of law. This principle of protection of personal liberty was further cemented in the case of Col (Rtd) Dr. Kizza Besigye v Uganda Criminal Application No.83 of 2016 wherein Hon. Justice Masalu Musene was of the holding that "...court has to consider and balance the rights of the individual, particularly with regard personal liberty..." And further quoting the famous words of Hon. Justice Ogoola PJ (as he then was) in Criminal Misc. Application No. 228 of 2005 and Criminal Misc. Application No. 229 of **2005** wherein the learned Justice had this to say:

"Liberty is the very essence of freedom and democracy. In our constitutional matrix here in Uganda, liberty looms large. The liberty of one is the liberty of all. The liberty of one must never be curtailed lightly, wantonly or even worse arbitrarily. Article 23, clause 6 of the Constitution grants a person who is deprived of his or her liberty the right to apply to a competent court of law for grant of bail. The Court's from which such a person seeks refuge or solace should be extremely wary of sending such a person away empty handed- except of course for a good cause. Ours are courts of Justice. Ours is the duty and privilege to jealously and courageously guard and defend the rights of all in spite of all."

Under Article 28(3) of constitution, every person is presumed innocent until proved guilty or pleads guilty. Consequently, an accused person should not be kept on remand unnecessarily before trial. Therefore, the accused should be granted bail if they fulfilled the conditions for their release. An applicant should not be incarcerated if he has a fixed place of abode, has sound sureties capable of guaranteeing that he will comply with the conditions of his or her bail and is willing to abide by all other conditions set by the court.

$\overline{4}$

The Court's discretionary powers to grant bail are enshrined under Section 14 (1) of the Trial on Indictments Act and the conditions under which bail is to be granted under Section 15. These circumstances are broken down to proof of exceptional circumstances like grave illness, a Certificate of no objection from the Director of Public Prosecution, infancy or advanced age; and the fact that the accused will not abscond to be proved by the accused having a fixed place of aboard, sound sureties, among others.

In the instant Application, the Applicants presented three sureties each. However, I find the sureties not substantial enough to ensure that the Applicants do not abscond. Most of the sureties are very young toadequately play their role. Secondly looking at their occupations (hair dressers and builders), it proves that they are not standing social economically well incase ordered to forfeit bond they may fail to meet the monetary obligations.

Therefore, this court finds the sureties not substantial to ensure the applicants 'attendance of the trial.

This Application is therefore dismissed and the matter shall instead be fixed for hearing since the Applicant had already been committed.

I so order.

Dated and delivered at Kampala, this $31^{cr}$ day of An and $2023$

Jarosm

**ALEX MACKAY A. II. II**

**JUDGE**

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