[2023] UGHCCRD 63

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA

CRIMINAL MISC. APPL. No. 156 of 2022 (Arising Nakawa Criminal Case No AA-34-2021)

## **TAIBO RICHARD DRILEGO**

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**APPLICANT**

Versus

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**UGANDA**

**RESPONDENT**

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

This application is commenced under Sections 14 of the Trial on Indictments Act; and Rules 2 and 4 of The Criminal Procedure Applications Rules.

The applicant, Taibo Richard Drilego, seeks orders that,

he be granted bail pending the determination of his trial. $i.$

Court sets lenient conditions to secure his attendance for his trial ii.

The grounds on which he has based his prayers are set out in the Notice of Motion and particularised in an affidavit in support deposed by the applicant.

Record by HANGESTACK ENVIANCE<br>Coensel for the Applicant<br>HPP ~ 1. 01-619797

$\mathbf{1}$

It is stated that in September 2021 the applicant was charged with the offence of Murder c/s 188 and 189 of the Penal Code Act and remanded. On the 14^th of April 2022 he was committed to the High Court for trial. He has been on remand since.

That he enjoys a presumption of innocence. Additionally, it is affirmed that he need not prove exceptional circumstances as the court has the discretion to grant bail regardless.

He avers that he has a fixed lace of abode in Mutungo zone 3, Mutungo Parish, Nakawa Division in Kampala District. That he has a fiancé who has three children for whom he was the sole bread winner. That he also has credible sureties who will ensure he attends court.

That since the inquiries are complete there is no likelihood of him interfering with witnesses. The applicant adds that he does not believe the next convenient session shall be convenient as there are several other inmates on remand awaiting trial.

However, the offence for which he is charged is bailable. Besides he has no other charges pending against him. He undertakes to abide by conditions that this court may set.

The state opposes this application and in an affidavit deposed by Adong Harriet, a State Attorney in the Office of the Directorate of Public Prosecutions states, that the applicant is charged with a serious offence of Murder which attracts a maximum sentence of death. It is stated that the applicant has not proved that he has a fixed place of abode in Mutungo Zone 3, Nakawa division as alleged. That there is no evidence that he has the three children as stated.

That the applicant has not proved any exceptional circumstances to warrant a release on bail. It is averred that he will abscond if released on bail. In addition, that his sureties have not shown that they have a fixed places of abode and therefore they cannot be considered substantial.

The parties have filed written submissions. I shall not reproduce them here but I have nevertheless closely studied and referred to them in deciding this matter.

## Determination

The applicant has a right to apply for bail. That right is exercised under Article 23 (6) (a) of **The Constitution** which stipulates,

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;

The above provision stems from the presumption of innocence. That any person charged with any criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty. In certain circumstances therefore, the accused shall not be detained in custody before determination of culpability.

In respect of offences only triable and for which bail may only be granted by the High Court, such as murder, Article 23 (6) (a) of the Constitution is operationalised by Section 14 (1) of the Trial Indictment Act (TIA) which states,

The High Court may at any stage in the proceedings release the accused person on bail, that is to say, 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 bond.

In that regard therefore, committal would not be a bar for court to consider an application of this nature.

As can be seen from the two provisions above, the right to apply for bail is subject to the discretion of Court. Ordinarily judicial discretion is exercised within given

parameters. It was observed in the English case of **R** vs Board of Education [1990] 2 $KB 165$ that.

Judicial Discretion is a matter for Court to consider all that is before it and reach a decision without taking into account a reason which is not a legal one. The Court acts within the rules of reason, justice and the law especially the objects and limits intended by the particular legislation.

Essentially bail is a temporary release of an accused person provided that the individual will be available or will attend the trial albeit from the comfort of his home. To ensure presence the release may be conditional.

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.

I agree with the applicant's submissions that in light of the wording of both Article 23 (6) of the Constitution and Section 15 of the TIA the requirement for proof of exceptional circumstances is directory and not mandatory. While this Court will not ignore the requirement for exceptional circumstances out rightly, it is not compelled to require proof of them.

The evaluation of this application will therefore be done on its unique circumstances with the Court applying the law to the specific conditions in this matter.

It is also true that the primary determinant in considering a release on bail, is whether the applicant will be available to attend his trial whenever he is required in Court. In this matter the applicant is charged with a capital offence. It is inevitable that the possibility of a looming death sentence would have to be a consideration when determining whether or not a person may abscond. I therefore take note of the seriousness of the offence.

I have taken into consideration the circumstances of the applicant including his sureties and place of abode. He states that he has a family where he is a sole bread winner. He has not furnished proof that he is the sole bread winner in his family.

As stated, the applicant is committed and the matter is ready for trial. It also true that the nature of the offence will be a consideration. While an applicant enjoys the presumption of innocence, the court would have to consider the public interest as well. Every matter is weighed on its specific factors.

The court must also apply its judicial mind to determine what, in line with the law, would be fair in the circumstances. It will not do anything that would defeat the ends of justice nor act capriciously, illogically or arbitrarily.

In this case, I have not found any circumstances which, in spite the serious nature of the offence with which the applicant is charged, would warrant that he should be admitted to bail.

Accordingly, the application fails and is dismissed.

Michael Elubu

Judge

31.07.2023

Ruling delivered in the presence of:

1. Mr. Kanyesigye Emmanuel, for the Applicant.

2. The Applicant/Accused.

Court Clerk - Mr. Kayemba Edward.

Festo Nsenga – Deputy Registrar

$02/08/2023 - 11:00$ a/m