[2025] UGHCACD 14

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA**

# **THE ANTI CORRUPTION DIVISION**

# **Miscellaneous Cause No. 18 of 2024**

(*Arising from Criminal Case No. 35 of 2024 of the Anti-Corruption Magistrates Court)*

| UGANDA | …………………… | RESPONDENT | |----------------------|----------|------------| | | Versus | | | TIBARWESEREKA | …………………… | APPLICANT | | TUMUHIMBISE CRESCENT | | |

# **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

# **RULING**

1. This is an Application by Notice of Motion commenced under Article 28 (1) of the Constitution of the Republic of Uganda; Sections 17 of the Judicature Act; Section 119 of the Magistrates Courts Act; Rule 6 (1) and (2) of the High Court (Anti-Corruption Division) (Case management) Rules, 2021; Rule 2 of the Judicature (Criminal Procedure) (Applications) Rules SI 13-8

- 2. The Applicant is **Tumuhimbise Crescent Tibarwesereka** who seeks Orders that: - **a.** Criminal Case No. 35 of 2024 Uganda vs Julius Musiime and 7 Others be dismissed for want of prosecution. - **b.** An order for the return of the passport and all other properties of the Applicant. - **c.** Costs of this application be provided for.

## **Background**

- 3. The grounds on which this application is based are set out in the Notice of motion and particularized in affidavits deposed by the applicant. - 4. It is stated that the applicant was employed as a relationship manager with Equity bank. Together with others, he was charged with the offence of conspiracy to defraud Equity Bank of 62 billion shillings. The accused persons are appearing before the Anti-Corruption Division Magistrates Court in Criminal Case No. 35 of 2024 Uganda vs Julius Musiime and 7 Others. - 5. On the 14th of March 2024, as the stated by the applicant, he was charged with one count of conspiracy to defraud. The complaint is that from then to date, the matter has not been set down for hearing. Whenever the applicant has appeared for mention, the prosecution informs the court that investigations are pending. In addition, the trial magistrate has always granted long adjournments to the prosecution.

- 6. It is stated that the applicant has protested the delay to commence his trial several times. That it is an infringement of his constitutional right to a fair and speedy trial. - 7. Additionally, that the adjournments are an abuse of the court process which has resulted in a miscarriage of justice. In view of the delays, the applicant prayed for a dismissal of the criminal charges. - 8. The respondent opposes this application. There are two affidavits deposed by one Mugisa Mwesigwa Raymond, of the Office of the Director of Public Prosecutions and the other by Detective Inspector of Police, Moses Kato, of the Uganda Police. - 9. It is stated that the trial court has had to handle several bail applications. As such, there was a need to inquire into the merits of these applications which drew the investigators away from the main case. - 10. That this matter involves the loss of sixty billion shillings and three hundred and eighty one (381) bank accounts with transactions spanning the period from 2021 to 2024. It is deposed that as of January 2025 the prosecution had information regarding 195 of the affected accounts. The inquiries involve retrieval of documents covering all these accounts over these four years. The documents are voluminous. - 11. It is averred that in view of the positions held by the accused persons in the complainant bank, the inquiries could only commence after their arrest. - 12. The respondent prays for a dismissal of the application

# **Representation**

13. The applicant was represented by Mr Paul Wasswa while Ms Gertrude Apio and Ms Gertrude Nyipir appeared the respondent.

#### **Submissions**

14. The arguments for the applicant stressed that the delay in trying him had now ran to one year and four months. That the failure to commit the applicant for trial, was an abuse of process and a perversion of the course of justice. The applicant relied on **Nicholas Opiyo vs Uganda High Court (Anti-Corruption Division) M. A. No. 16 of 2021** where is was held that,

> It is not open to the prosecution to literally deposit its case in court and go to sleep. The court has power to demand that action be taken on any case filed to ensure that allegations made against an accused are substantiated through a trial and a decision made on the matter.

> It is my view that delay is not legally defined but is measured according to the circumstances of each case. Simple cases should be prosecuted straight away. Complicated cases require time to assemble evidence to present to court. The time the State is permitted by court to get ready to prosecute depends on the reasons it demonstrates regarding the progress of investigations.

15. The applicant submits further, that the circumstances here show the state has deposited the case in court and not taken any steps to have it prosecuted. That the continued adjournments have impacted on the reputation of the applicant and his ability to get gainful employment.

- 16. That if court is not inclined to grant this application then the state be directed to commit the applicant and in the event no committal is done by a stated deadline, then an on order of dismissal should issue. - 17. The prosecutions argument in rebuttal was that the evidence in this matter is voluminous. That there are 413 box files involved. That it was not true the state has taken no steps to prosecute the matter. Indeed, all disclosures had been made and an electronic list of the disclosed documents was filed on Electronic Court Case Management Information System. It was stated further that the committal papers have been prepared and the prosecution is ready to commit the applicant at the next mention date. - 18. It was contention of the respondent that another cause for delay was when one of accused persons lodged a complaint with the DPP which had to be verified and indeed resulted in additional charges being preferred. This process took time and partly accounts for delay in completing investigations.

## **Determination**

- 19. The question here is whether there has been delay in commencing the applicants trial and if so, whether that delay has occasioned a miscarriage of justice amounting to an infringement of his constitutional right to a fair and speedy trial. - 20. The applicant was arrested and charged in March of 2024. It is now June of 2025, and he has not been committed to the High Court for trial. In sum, the commencement of his trial has been pending for one year and three months.

- 21. It is within the purview of this court's mandate to determine whether trial has delayed and take action accordingly. Under Section 17 (2) of **the Judicature Act,** the High Court has inherent powers to prevent abuse of process of the court by curtailing delays in trials including the power to discontinue delayed prosecutions. - 22. It comes to a point where delay is oppressive and an injustice. In such circumstances, the court must act to stem the abuse. - 23. There is no mathematical formula to be applied when calculating what amounts to unconscionable delay. Each case must be determined on its unique circumstances. However, courts have developed tests to aid them in making that evaluation. - 24. A similar issue arose in **Shabahuria Matia vs Ug High Court (Msk) Criminal Revisional Cause No. 5 of 1999** where an accused person had been charged with murder in 1995, but by 1999, had not been committed to the High Court for trial. - 25. After extensively reviewing available jurisprudence, the court listed some of the factors that may be taken into account when assessing delay. They include the length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. The court may also take note of whether the accused person's actions have contributed to the delay; there may be limits on institutional resources which impede expeditious handling of matters; whether there are inherent time requirements of the case; and other factors as may be relevant to the circumstances.

- 26. Having considered these factors, it was held that the delay in committing **Shabuhuria** was exceptionally long and as a result the court dismissed the charges against the accused. - 27. I note that similar factors were listed in the **Opiyo** case (supra) which was cited by the applicant. - 28. Turning now to the present circumstances it would appear that this is a relatively bulky case considering the volume of documents involved. That in itself would not be just cause for delay. Ordinarily, the norm should be that with few exceptions, suspects must not be arrested before sufficient evidence has been marshalled against them. In this case the state appears to have arrested before they had all the evidence. - 29. From the time of arrest, this matter has been called for mention on a monthly basis with the prosecution consistently informing the court that investigations are ongoing. Until this application, there had been no demonstration made as to what level these investigations had gotten to. One year and three months awaiting trial is a long time. The applicant has stated that he has been put to great expense both financially and personally by this long wait. - 30. It is also true that there have been factors that obstructed the progress of the case. For instance, there are numerous accused persons who individually filed bail applications. That the grounds in each of these applications required inquiry by the investigating officers and diverted them from the main inquiry. It was stated that the team of police officers investigating the case were all transferred at one stage. Considering the sheer volume of material involved, it took the replacement detectives awhile to come abreast with the

investigations or the nature of the case in general. This was an institutional impediment that could not be blamed on any of the parties.

- 31. Looking at the charge sheet, this is a serious matter. The allegations affect 381 accounts and involve an overall figure of sixty billion shillings. This court is acutely aware of the applicant's presumption of innocence but takes note that a case of this magnitude would not be handled in the same manner as the theft of a bicycle. The resources required, both in human and logistical terms, must be formidable. - 32. The prosecution has indicated to this court that as it stands at the moment, it has made disclosures. A review of the ECCMIS profile of Anti-Corruption (Magistrates Court) Case No 35 of 2024 confirms this. They have also stated that the matter is ready for committal. In view of the disclosure made, this court is inclined to give the prosecution the benefit of doubt. - 33. In determining any matter, the court must always balance the interests of all the parties involved. This court acknowledges the applicant's fair trial rights and takes a dim view of the delays, and the manner in which they have adversely affected the applicant. That notwithstanding, it would not serve the cause of justice or the overall interests of other parties like the victims, the banking industry, or the economy, to order an outright dismissal, especially when the prosecution indicates it is ready to commit the applicant to the high court for trial. - 34. In light of all the foregoing, it is fair and just for the respondent to be granted leave to commit the accused as urged. However, that leave shall be given conditionally. If the applicant is not committed to the high court as stated, then

any farther delay would be unconscionable and unwarranted under any circumstances.

- 35. In view of the foregoing this court directs as follows: - a. The prosecution shall commit the applicant for trial within seven (7) days of the date hereof (16th of June 2025). In any event, not later than the 23rd of June 2025. - b. In the event that the applicant has not been committed by the 23rd of June 2025, the matter shall be dismissed under Section 17 (2) of **the Judicature Act.** - c. There shall be no order as to costs

**…………………………….**

**Michael Elubu**

**Judge**

**16.6.2025**