[2025] UGHC 468

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT LTIWERO

#### HCT- 1 7-CRCM-OOO8-2(}25

# lArising from Criminal Case no. BBO/O8489 OI. 20251

## (Arising out of LIIW-CO-AA-O56-2O241

SSEMPIJJA MUHAMMAD ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

vs

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::]::::::::::::::::::RESPONDENT

### BEFORE: HON. JUSTICE GODFREY HIMBAZA

#### RULING

# Introduction

- ^I. This application was brought by Notice of Motion filed on 8fr April 2025 by the accused/ applicant Ssempijja Muhamad, through his advocates M/S MAALC Advocates. The application was brought under Article 23(6), 23(2) (b) of the Constitution, Section 14 of the Trial on Indictments Act and Rule 3 of the Judicature (Criminal Procedure) (Applications) Rules SI 13-18. The application sought for an order releasing the applicant on bail pending the hearing of Criminal Case No. BBO /08489 12023. - 2. The grounds in support of this application are contained in the affidavit of Ssempilia Muhammad the applicant/ accused. - 3. The respondent objected to the application and filed an affidavit in reply deposed by Sandra Nakire, the Resident Senior State Attorney -ODPP Luwero. - 4. Both parties filed their respective written submissions but when the application came up for hearing on 19ft May 2025, the parties highlighted their submissions orally, which I have considered while determining this application.

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### l,e gal Representatlon

5. The applicant was represented by Joachim Elepu of M/S MAALC Advocates, while the respondent was represented by Kirabo Racheal, State Attorney, Office of the Director Public Prosecution, Luwero office.

# Background to the appllcatlon

- 6. The applicant/accused was arrested and charged with the offence of Murder cls 177 &, 172 of the Penal Code Act Cap 128. The applicant/ accused has since been committed for trial by this court and has been on remand for a period of 1 year. The applicant then filed this application seeking to be released on bail on the following grounds; - a) That the applicant is charged with murder contrary to section 171 and 172 ofPenal Code Act Cap 128. - b) That the applicant lost the responsibility to his family since his arrest. - c) That the Director of Public Prosecutions has failed to commence the prosecution of the applicant thereby violating his rights to a fair trial and speedy hearing as provided in the Constitution of Uganda. - d) The applicant is incurring a lot of legal expenses. - 7. The applicant at the hearing presented four sureties namely, Seruma Dirisa aged 50 years the biological father of the applicant mixed farmer and businessman from Nkokonjeru, Bombo Town Council. He presented his national ID NIN no: CM74O231O64JHE, and an LC Letter dated 7tt' April 2025. His 2nd surety was Namara Aminah, 23 years a biological sister to the applicant, business lady dealing in clothes and resident of Nkokonjeru LCI Bombo Town Council and National ID NIN: CP03O23IOEWXHD. She also presented her LC 1 introduction letter. The applicant further presented the 3'd surety Sseguya Hakim a resident of Kampala Road LCl Bombo Town Council, a businessman and uncle to the applicant. The last surety was Barunda Hussein, 19 years old , biological brother of the applicant resident of Nkokonjeru, Bombo Town Council, within Luwero District, Nyimbwa Sub county, with National ID No. CM050231OFRERA.

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- 8. The state on the other hand opposed the application on the grounds that; - a) Bail is discretionary and the court needs to balance the constitutional rights of the applicant and the needs of the society. - b) The sureties presented are not substantial and they are not capable of compelling attendance of the applicant whenever court needs him. - c) As much as the accused person alleges that they have a hxed place of abode, the offence with which the Applicant is charged is grave in nature and attracts a death sentence on conviction, therefore there is a high likelihood for the applicant to abscond so as to evade punishment. - d) The applicant has not shown any exceptional circumstances that would warrant this honourable court to exercise its discretion by granting him bail.

### Consideration of the Application

## Applicant's submissions

- 9. Counsel for the applicant cited the law governing the grant of bail as Article 23 (6) (a), 28(3) (a) of the Constitution, section 14 (1) and 15(1,2,3 and 4) of the Trial on Indictments Act, the Criminal Procedure Act, and the Constitution (Bail Guidelines for Courts of Judicature) Practice Directions 2022. Counsel submitted that the applicant has a right to apply for bail and the offence of murder which he is charged with, is bailable by this honourable court. Furthermore, it was counsel's submission that the applicant has ^a fixed place of abode being a resident of Nkonkonjeru LCl, Bombo Town council, Nyimbwa sub county, Luwero and that he also has substantial sureties being close relatives who reside within the same locality as the applicant. - 10. Counsel cited Article 26 (61 (a\ of the Constitution that guarantees the right to apply to court to be released on bail and court may grant that person bail on such conditions as it considers reasonable. Counsel submitted that bail is derived from the presumption of innocence enshrined under Article 28(3)(a) of the Constitution. That a bail applicant must not be deprived of his

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or her freedom unnecessarily or as a punishment where they have not been proven guilty by a competent court of Law. He relied on the case of Col.(Rtdl Dr. Kliza Besigye VB. Uganda Crim Application no. OO2O of 2o16(unreportedl. Counsel further relied on the case of Attorney General Ve. Tumushabe (2OO8f where Justice Mulenga held as follows;

" It is clear to me that clause 6 of Article 23 applies to every person awaiting trial for a criminal offence without exception under paragraph (a) of the clause, every such person at any time upon or after being charged may apply for release on bail and the court may at its discretion grant the applicant bail irrespective of the class of the criminal offence for which the person is charged".

#### Respondent's eubmissions.

- ll. The State Attorney relied on the case of Lawrence Luzinda Vs Uganda (19861 HCB 33, where Justice Okello defined bail as an agreement between the court, on one hand and the accused and sureties on the other hand that the accused will attend his trial when summoned to do so. - 12. She further cited the case of Foundation for Human Rights Inltlatlve Vs. Attorney General Conetitutional Appeal to.3l2009 which stated that the accused's right to bail is not absolute, it has to be enjoyed within the confines of the Law and that there has to be a Constitutional balance of everybody's rights. Further, that denial to grant bail does not contradict the accused's right of innocence and neither does it suggest that the accused is guilty of the offence he is being charged with. - 13. Furthermore, the State Attorney submitted that proof of exceptional circumstances is still mandatory. The State Attorney further submitted that Section 15 of the Trial on Indictment Act provides for the release of an accused person on bail but section 16 provides that court may refuse to grant bail to an accused person if he or she does not prove to the satisfaction of the court that; - a) Exceptional circumstances exist justifying his or her release on bail and; - b) That he or she will not abscond when released.

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- 14. She further relied on section 16(3) which provides that exceptional circumstances mean 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 from the DPP. - c) Infancy or advanced age ofthe accused. - 15. She also relied on section 16(4) which provides that in considering whether or not an accused person is likely to abscond, the court may take into account the following factors; - a) Whether the accused has a hxed place of abode within the jurisdiction of the court 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. - c) Whether the accused person has on 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. - 16. The State Attorney submitted that the accused person has satisfied some of the other grounds but failed to prove the following crucial grounds; - a) Whether the accused is not likely to abscond - b) Whether the accused has presented sound sureties - c) Whether the accused has proved exceptional circumstances. - 17. On whether the accused has a fixed place of abode, the State Attorney submitted that the accused person presented LCI introductory letter introducing the accused person as a resident of Nkokonjeru LCl, Bombo Town Council , but according to her it was lacking in the sense that it does not introduce him as a person of good character in the community. - 18. On the question whether the accused person shall not abscond, She cited the case of Obey Christopher & Ors Vs Uganda ACD Misc. Appllcatlon No. 045 of 2Ol5 and stated that the offence of Murder being a grave offence

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whose likely penalty upon conviction attracts a maximum punishment of death, there is a higher likelihood of the accused person to abscond in case he is released on bail, fearing the harsh punishment.

- 19. On whether the accused person has introduced sound sureties within the jurisdiction of court to undertake that the accused person shall comply with the conditions, she submitted that the sureties presented were not substantial because they did not adduce evidence of their financial capacity to forfeit their bonds in the event that the accused person absconds - 20. Lastly, she submitted that the accused have failed to prove exceptional circumstances and therefore should not be granted bail.

# Determination by court

# (i) Analysis ofthe Law and Evidence

²1 . The right to apply for bail is a Constitutional right premised under the presumption of innocence as enshrined in Articles 23(61 (al and 28(3) of the Constitution of Uganda. Section 23(61(al provides that;

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

However, the decision to release an accused person on bail solely rests in the discretion of court upon considering certain factors or circumstances on a case-by-case basis, as to whether the accused person should be granted bail or not. See: Uganda vs Kliza Besigye Constltutlonal Refereoce No. 20 of2OO5, aad Foundatlon for Human Rlghts laltiatlve Ve. Attoraey Geaeral. Coastltutlonal Petltloa No. O2O of 2006.

The primary principle for which a court may release a person on bail pending trial is the presumption of innocence as enshrined under Article 28(3) of the Constitution which provides tJ:at every person who is charged with a criminal offence shall be presumed to be innocent until proven guilty or until that person has pleaded guilty.

w\* Section 15(l) of the Trial on Indictments Act in addition to upholding the right of accused person to apply for bail, clothes court with the discretion to release an accused person on bail at any stage of the proceedings.

Guideline 5, of the Ball Guidelines provides the general principles i.e presumption of innocence, the right to personal liberty, applicant's obligations to attend the trial, discretion ofthe court to grant bail on such terms as the court considers reasonable and the need to ba-Iance the rights of the applicant and the interest of Justice. See Col. (Rtdl Klzza Bealgye & Abed Lutale Vs. Uganda.

22. Having carefully perused through the record and listened to the submissions of both counsel, as well as the aflidavits and written submissions, it is not in contention that the applicant has a fixed place of abode in Nkokonjeru LCl, Bombo Town Council which is within the jurisdiction of this honourable court. Paragraph 12(a) (bf of the Bail Guidelines provides that an application for bail shall contain the particulars of the applicant accompanied by a copy of the National Identity Card and an introduction letter endorsed by the LC1 Chairperson of the area where the applicant resides. Justice Remmy Kasule (retired) stated in the case of Mugyenyi

Steven Ve. Uganda Mlscellaneous Application no. OO65 of2OO4 that; "The onus is on the applicant to satisfy the court that he has a permanent place of abode in a particular village, sub-county and district. This is to enable the court exercise jurisdiction over the applicant while on bail being able to trace his whereabouts whenever it is necessaq/'.

- 23. Indeed, the applicant satisfied this requirement by furnishing an introductory letter for Nkokonjeru,LC 1 Bombo sub county, although he did not provide his National ID to court. as well as his National Identity Card. - 24. Whrat is in contention is whether the applicant has presented sureties who are substantial and who will be able to ensure his attendance to court as and when directed and if there exist exceptional circumstances for this court to grant bail to the applicant.

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25. With regard to the sureties, the term "Suret/ is defined by paragraph 4 of the Constitution (Bail Guideline for Courts of Judicature I Practice directions Legal Notice No.8 of 2o22 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 the state if the applicant fails to appear in Court". The main duty of a surety lies therein.

26. Sectlon 16(41 lb) of the Trial on Indictments Act and paragraph 13(1) of the bail guidelines provide that in considering whether an accused person 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.

Guideline 15 of the Bail Guidelines provides that;

- (i) Factors that court shall take into account in determining the suitability of a surety are; age, work, and residence address, character and antecedents, relationship to the applicant and any other factor court may deem fit. - (iil Documentation in respect of a surety that must accompany an application for bail including a copy of the national ID, Passport or alien identification card, introduction letter from the LC chairperson of the area where the surety is ordinarily resident. - 27. Ttre applicant presented four sureties; Seruma Dirisa 50 years , biological father to the accused, Seguya Hakuna and uncle to the accused person, Namara Aminah 23 years a biological sister of the accused and Barunda Hussein 19 years a biological brother of the accused person. I agree with the respondent's counsel that two of the sureties namely Barunda Hussein aged 19 years and Namara Amina aged 23 years being siblings to the applicant, are too young in age to stand surety for the applicant given the gravity of the offence. In my assessment, they lack the requirement that a surety must be a person whom the accused person respects ,who has control over him and

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who must be able to compel him to report to court as and when he is required to.

28. I am alive to the recent ruling in Col. (Rtdl Kizza Besirye & Halil Obed Lutale Vs Uganda, Misc. Application no. O113 of 2025 where my learned sister Justice Comfort Kania stated as follows;

"Although as one of the factors to consider in determining the suitability of the sureties, the bail guidelines mention age, it does not in my view indicate that a surety must always be older than the applicant. It is enough that the sureties are adults ln posltions of responslbllitv or as so connected to the applicant that they are able to exert pressure on the applicant to comply with their bail conditions if granted bail. To say that a surety must always be older than the applicant is to set a dangerous precedent where senior citizens ofvery advanced age may never be able to find sureties who are older than them"

- 29. Much as I agree with the above position, the distinguishing factor is that in the Beslgre c&ae, the sureties presented were people who were holding positions of responsibility in society i.e Hon. Semujju Nganda, MP Kiira Municipality, Hon. Muhindo Harold Tony MP,Bukonzo County East, Hon. Mwijukye MP Buhweju District, Hon. Kamara Nicholas MP Kabale Municipality. The substantiality of the said sureties much as they were younger than the applicant, was viewed in the public positions they held, unlike in the instant application. - 30. Furthermore, the sureties did not give to Court detailed description of the nature of their work and the estimated income they earn in order to give a picture to court whether they will be able to manage to pay the bonds in case the accused person absconds. They all gave a blanket statement that they were business people. I agree with the State Attorney that failure to prove their financial standing makes their substantiality doubtable in view of the nature of the offence charged.

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31.1 am persuaded by the observation of my learned sister Nakachwa J(as she then was) in Sher Singh Shekhawat Vs Uganda Crlmlnal Misc Application No. 11 of 2023that1.

> 'In consideing the suitability of sureties, courts attach almost equal importance to tlrc sge, the relationship and social standing of the proposed surety uLith the accused."

- 32. Noteworthy, the applicant is charged with the offence of murder allegedly committed during a mob justice. This in my view, points to the sensitivity of this case and the public interest with which it carries in the community. - 33. Furthermore, Section 16(3f of the Trial on Indictments Act Cap 25, read together with Paragraph 1a(2f of the Conetitution (Bail Guidelines for Courta of Judicaturef lPractlce) Directione, 2O22 posit that in capital offences, there is need to prove exceptional circumstances to wit; - a) Grave illness certified by a medical officer of prison or an institution in which the accused is detained - b) A certilicate of no objection signed by the Director of Public Prosecutions - c) Infancy or advanced age - 34. It is trite that the requirement to prove the aforementioned circumstances does not usurp the court's discretion on whether to grant or not to grant bail in the given circumstances. Be that as it may, this court cannot overlook the gravity of the offence with which the applicant has been charged with and the violent nature within which it was allegedly committed -mob violence. Counsel for the applicant argued that the requirement to prove exceptional circumstances was done away with in the case of Rtd Col. Kizza Besigye & Hafii Obed Lutale Vs. Uganda.(supral. It is my considered view that this ruling is persuasive to this court. More so, the provisions of Section 16(3) of the Trial on Indictment Act and paragraph A(21 of the Constitution (Bail) Guidelines are still in force and have never been amended or repealed by the law makers.

- 35. It is also my considered view that owing to the fact that the applicant has recently been committed to this Court for trial, there isn't likely to be substantial delay in hearing and disposing off his case. - 36. For the above reasons coupled with the gravity of the offence charged , there is a likelihood of the applicant absconding bail owing to the absence of substantial sureties and the severity of the impending sentence for the alleged offence. In the case of Col. (Rtdf Kiiza Besirye & Anor Vs Uganda (supra), my learned sister Justice Comfort Kania while denying bail to the applicant after pointing out the gravity of the offence charged stated as follows;

"Counsel for the respondent submitted that the charges with which the applicant are charged, treason involves violent change of government inclined to side with the respondent that treason being an offence that involves overthrowing government which act is accompanied by violence, an act of treason impacts on national securit/.

- 37. I observe in the above statement that much as the applicant had met all the other bail conditions, gravity of the offence committed was a factor that was put into consideration to deny the applicant bail. - 38. Furthermore, on the issue of gravity of the offence, in the same case of Col. lRtdf Kilza Beslgye & Abed Lutale (Supraf counsel for the applicants had cited the case of Makhoha Samuel & 35 ors Vs, Uganda Criminal Appllcatlon to. 24 of 2o24 where the accused persons had been charged with terrorism and granted bail by the International Crimes Division, court stated as follows;

"l am persuaded that on the scale of gravity, the charges against the applicants in this case attract the ultimate penalty of death and therefore are graver than the charges in the Makhoha case which attracts life imprisonment."

39. Similarly, as i already mentioned earlier, the offence of murder that the applicant in this case is charged with attracts the ultimate punishment of

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death and therefore impacts on the possibility of the applicant to abscond given the severity of the punishment involved.

## Declgion

- 40. Having analysed the law, evidence and authorities on the subject of bail, I hereby deny the applicant bail for the following reasons; - i) The sureties presented by the applicant are not substantial enough given the gravity of the offence charged. - ii) The severity of the sentence that the offence charged attracts, is likely to be a factor for the applicant's abscondment in fear of the punishment. - iii) No exceptional circumstances have been proved by the applicant to warrant his release on bail. - iv) The applicant was already committed to the high court, therefore there is likely to be no substantial delay in his trial - ⁴l. In the final result, I accordingly dismiss this application. The accused person's/ applicant's case shall be cause listed for hearing in one of the nearest convenient sessions.

## It ls so ordered

Dated this ... :fr 4..........day of ... Vo.(€ 2025 GOD IM AG. JUDGE