[2022] UGHC 46

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL HCT-CR-MISCELLANEOUS APPLICATION NO. 024 OF 2022 (ARISING FROM CR-CS-AA-155 OF 2021) **TUHAIRE ALBERT** =APPLICANT **VERSUS**

UGANDA= **RESPONDENT**

## BEFORE HON. JUSTICE VINCENT WAGONA **RULING**

This is an application for bail pending trial brought by way of Notice of Motion under Section 14 of the Trial on Indictments Act and Rule 2 of the Judicature (Criminal Procedure) (Applications) Rules SI 13-8).

The grounds of the application are stated in the Notice of Motion and supported by affidavit of the applicant and the written submissions of Counsel Robert Kyaligonza of Kaahwa, Kafuuzi, Bwiruka & Co. Advocates, Counsel for the Applicant and are that:

- 1. The applicant aged 22 years old was charged with aggravated defilement and has been committed for trial to the High Court. - 2. The applicant has a fixed place of abode at Nyankwanzi B Village, Bwanika Parish, Kichwamba Sub-County, Kabarole District. - 3. The applicant has substantial sureties, is not yet causelisted for trial, has no other pending charges and undertakes to comply with bail conditions.

It was submitted for the Applicant citing Uganda versus Rtd. Col. Kiiza Besigye, CR. MA NO 229 of 2005 that the Constitution gives an accused a right


to apply for bail and gives Court the discretion to grant bail. A number of other decisions were cited.

In response, the State, represented by Arinaitwe Robert (State Attorney), opposed the application through written submissions. It was contended that the sureties presented were not substantial as they were not sufficiently introduced to court because the LC Chairperson's introductory letter was not witnessed by at least another LC Committee member. It was further contended that the sureties presented were not substantial, because they did not adduce evidence of their financial capacity to forfeit their bonds when required

## CONSIDERATION BY COURT^\*

Article 23(6) of the Constitution provides as follows: Where a person is arrested in respect of a criminal offence -

- (a) 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. - $(h)$ .................................... - (c) in the case of an offence triable only by the High Court, if that person has been remanded in custody for one hundred and eighty days before the case is committed to the High Court, that person shall be released on bail on such conditions as the court considers reasonable.

Section 14 (1) of the Trial on Indictments Act that provides for release on bail states as follows: "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."

AWY23

Section 15 of the Trial on Indictments Act provides for refusal to grant bail as follows:

- (1) 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.

(2) An offence referred to in subsection (1) is—

(a) an offence triable only by the High Court

$(b)$ $\cdots$

- (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.

- (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:

$\overline{3}$

(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 accused is entitled to apply to the court to be released on bail, and the court has the discretion to grant or refuse bail.

In Col (Rtd) Dr. Kizza Besigve V. Uganda, High Court Kampala Criminal Application No. 83 of 2016 Hon. Justice Masalu Musene held that: ".....the court is given or left with the discretion to grant or refuse bail. It must always be borne in mind that where any legislation confers upon court the discretion to do or refrain from doing, grant or refuse to grant a relief sought, such discretion must be exercised without any malice, ill will, ulterior motives or regard to external influence or circumstances. In exercising that discretion, the court must be satisfied that the provision of the law have been complied with".

In Tumwekwase Owen v. Uganda, Mbarara HCT-05-CR-MA 57/2019 Hon Justice Ssekaana Musa stated that: "According to Article 23 (6) (a) and 28 (3) of the Constitution of the Republic of Uganda, persons accused of criminal offences have a right to apply for bail. However, the grant of bail is discretionary to the court (see Uganda Vs Kiiza Besigye; Const. Ref No. 20 of $2005$ ."

In the same case, the Judge stated that: "However the applicant is charged with a very grave offence in respect of which the law stipulates that in order to be released on bail, the applicant must prove to the satisfaction of court an exceptional circumstance (see section 15(3) of the Trial on Indictments Act, Florence Byabazaire vs Uganda High Court Miscellaneous Application Number 284 of 2006. The applicant has not proved any exceptional

$\overline{4}$ .

circumstance in this application. This court, of course, has in the exercise of its overall jurisdiction, powers to grant bail, even in absence of an exceptional circumstance being proved. Court does so through the judicial exercise of its discretion. The test this court has set is that: "The burden is upon the applicant to satisfy court by putting forth before court a set of facts, beyond the ordinary considerations for bail, upon which the court can act, in the exercise of its discretion, to admit the applicant to bail" (See: High Court of Uganda at Gulu Miscellaneous Application Number 0037 of 2008: Bongomin Richard Akal vs Uganda, unreported)".

In this case, the court considers that the court has the discretion to grant bail but remains alive to the gravity of the offence of aggravated defilement with which the applicant is charged and already committed for trial to the High Court.

There is always a concern as to whether the applicant if granted bail, will return to face trial. In Aliobe Joseph & Ors v. Uganda, Miscellaneous Criminal Application Nos. 0015, 0016, and 0017 of 2016 Hon. Justice Stephen Mubiru stated that: "In Hurnam v State of Mauritius [2006] 1 WLR 857, PC, it was held that: A person charged with a serious offence, facing a severe penalty if convicted, may well have a powerful incentive to abscond or interfere with witnesses likely to give evidence against him, and this risk will often be particularly great in drugs cases. Where there are reasonable grounds to inferthat the grant of bail may lead to such a result, which cannot be effectively eliminated by the imposition of appropriate conditions, they will afford good grounds for refusing bail, but they do not do so of themselves, without more. They are factors relevant to the judgment whether, in all the circumstances, it is necessary to deprive the applicant of his liberty. Whether or not that is the conclusion reached, clear and explicit reasons should be given."


In this case, the applicant is charged with a grave offence of aggravated defilement alleged to have taken place on 12/08/2021. He is already committed to the High Court for trial. The applicant is stated to be a young person aged 22 years; there is no evidence of whether he lives independently and what he does for a living. If he is renting, his landlord remains undisclosed. The applicant lives in the same neighborhood with the victim and key witnesses. The court has no adequate guarantees that the applicant may not interfere with the witnesses. On the basis of the evidence put forward, this court is not satisfied that this is a case where this court should exercise its discretion to grant bail to the applicant. Bail is denied. The application is hereby dismissed.

## Dated at High Court Fort portal this 23rd day of November 2022

Vincent Wagona

**High Court Judge**