[2025] UGHC 480

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT WAKISO **CRIMINAL MISCELLANEOUS APPLICATION NO. 0012 OF 2025** (ARISING FROM CRIMINAL CASE NO 00/AA/2025)

**APPLICANT WAKO ROBERT SALONGO** $\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\$ **VERSUS**

**UGANDA**

$\cdots \cdots \cdots \cdots \cdots \cdots$

**RESPONDENT**

4-6-2025

### **BEFORE: HON. LADY JUSTICE GRACE FLAVIA LAMUNO**

#### **RULING**

#### **Introduction**

Wako Robert Salongo, hereinafter called the Applicant, is charged with two counts. Count one is Aggravated Robbery contrary to sections 266, 267 (2) and 267 (3) (a) and (b) of the Penal Code Act, Cap 128 which is a bailable offence. It is alleged by the prosecution that the Applicant and others still at large on the 13^th day of November 2024 at nakuwadde village in wakiso district robbed Ibanda Miria Mukaani of her money worth 40,000,000= (fourty million Uganda shillings) and at, immediately before or immediately after the time of the said robbery used a deadly weapon to wit chloroform on the said Ibanda Miria Mukaani. Count 2 is conspiracy contrary to section 363 of the Penal Code Act, Cap 128. It is alleged by the prosecution that the applicant and others still at large on the 13^th day of November 2024 at Nakuwadde village in wakiso district conspired to commit a felony to wit aggravated robbery on Ibanda Miria Mukaani. The Applicant, has applied to be released on bail.

#### Legal basis of the application

The applicant brought this application by Notice of Motion under Articles 23 (6) (a), & 28(1) of The constitution of Uganda, 1995, r.2 of the criminal procedure [Application] Rules and all enabling laws for orders that;

1) The applicant be granted bail pending trial.

Court issues directions for bail

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The grounds of the application are stated in the Notice of Motion and supported by the affidavit of the applicant and briefly are that:

a) It is the court's discretion to grant the applicant bail

- b) It is the applicant's constitutional right to have liberty, a fair and speedy trial - c) The applicant was remanded at kigo prison and thereafter committed to High Court for trial. - d) The applicant has a home, a wife with children to take care of and with an advanced age with a fixed place of abode - e) The session for hearing of the applicant's case has a likelihood of delay - f) The applicant will abide to all the conditions imposed on him by the court.

## **Representation**

At the hearing, the applicant was present in court and was represented by Semanda David Malege together with Simon Ntegeka. The respondent was represented by Ms. Deborah Itwau, Chief state attorney, Office of the Director of Public Prosecutions.

## **Submissions**

Both the applicant and the respondent made oral submissions at the hearing on 2^nd June 2025 which I will not reproduce but briefly the submissions were as follows:

It was submitted for the applicant that he is 46 years old, has a fixed place of abode at Wakiso where he lives, cannot abscond and will abide with the conditions of the court if granted bail since he took himself to police when he was summoned which shows he is a law abiding citizen. It was further submitted that the applicant has responsibilities including children and he is the only bread winner at his home and that since he has been on remand, his children have not gone to school. The applicant at the hearing presented three sureties namely, Matovu Fred aged 53 years old, an uncle to the applicant, retired surveyor and currently a businessman dealing in produce, resident of naluvule in Wakiso district and his telephone contact is 0788942429. He presented his national ID NIN no: CM72031108W77D, and a copy of the land title where he resides. His 2^nd surety was Nabala Joyce, 37 years old, a wife to the applicant, resident of naluvule, Wakiso, her is 0706897489 National $\overline{ID}$ NIN: and telephone contact She also presented her national ID, LC 1 CF87068107F2L. 4-6-2028 introduction letter and marriage certificate. The applicant further presented the 3^rd surety Muwonge Sharab, a resident of naluvule, Wakiso district, the secretary of the village Local Council area where the applicant resides and a close friend of the applicant. Telephone contact is 0702329639, with National ID No. CM720521077N7G.

Counsel for the applicant submitted that the sureties are responsible citizens and therefore substantial and have understood their role and pledge to abide to bring the accused to court when his case is fixed for hearing. Counsel further submitted that investigations are complete meaning the applicant will not interfere with any further investigations and added that the nature of the offence the accused is charged with involves a sale of a plot of land. Counsel further submitted that there is no proof that the respondent has moved court to have this matter fixed despite the fact that the accused's case has been committed to High Court for trial. Counsel prayed since the applicant has spent four months in prison, the court finds the sureties substantial and grants the applicant bail.

The state on the other hand opposed the application on the grounds that; first the offence is aggravated in nature, it attracts a death sentence on conviction thus the chances of absconding are high. Counsel further submitted that they don't know if the accused will make it back for trial once granted bail. The mere averment by counsel for the applicant that the applicant will be able to return is not concrete. Secondly, counsel submitted that the applicant has been committed for trial and this is the first court sitting, as such priority has been given to matters for those with longer committal periods. With this in mind, counsel prayed that the matter be fixed for hearing at the next convenient session. Thirdly, counsel submitted that the national IDs presented by the sureties save for that of the applicant have since expired which brings into issue matters of traceability for them when need arise. Counsel prayed that the application be denied and the matter be set down for hearing at the earliest convenient session.

In rejoinder, it was submitted by counsel for the applicant that the applicant is still presumed innocent, he has neither pleaded guilty nor been found guilty by court. It was further submitted that the applicant is a responsible person, married and he will not abscond. It was further submitted that the respondent prioritizing old cases is proof that this matter has not been prioritized and keeping the applicant on

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committal is akin to half way sentencing him without trial. Regarding national IDs, counsel for the applicant invited court to take judicial notice of the extension of all national IDs that was issued on $12^th$ September 2024 by the minister of Internal Affairs who extended all national IDs for one year which means all national IDs are valid until September 2025. In addition, it was submitted that what is important is the NIN which doesn't change which shows that the applicant and sureties can be traced using the existing NINs. Counsel reiterated his prayer for court to grant bail pending trial.

## **Analysis**

The right to apply for bail is a Constitutional right. 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 that 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.

Article 23 $(6)(a)$ of the Constitution 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, although the Constitution guarantees an accused person the right to apply for bail, court at all times retains the discretion whether or not to grant an accused person bail. See: Uganda vs Kiiza Besigye Constitutional Reference No. 20 of 2005, and Foundation for Human Rights Initiative Vs. Attorney General. Constitutional Petition No. 020 of 2006.

Section 15(1) of the Trial on Indictments Act Cap 25 (hereafter TIA) 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 Constitution (Bail Guideline for Courts of Judicature) Practice directions Legal Notice No.8 of 2022 (hereafter Bail guidelines) provides the general principles which a court may take into account while considering a bail application. The principles include; the presumption of innocence, the right to personal liberty, applicant's obligation to attend the trial, discretion of the court to grant bail on such terms as court considers reasonable and the need to balance the rights of the applicants and $-1490$ <br> $4-6-1025$ the interest of justice.

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Generally, in exercising the discretion whether to grant bail, the court is guided by the following factors, namely; whether the accused person will abscond or not, whether there are sufficient guarantees to underwrite the accused's bail application and whether the greater interests of justice favour or disfavour the release of the accused persons on bail.

Section 16(4) of the TIA provides that in determining whether the accused person is likely to abscond, the court shall take into account the following factors-

- a) Whether the accused has a fixed place of abode; - b) Whether the accused has sound sureties to undertake that the accused shall comply with the conditions of his bail; - c) Whether the accused has on previous occasions, when released on bail, failed to comply with the conditions of his bail and - d) Whether other charges are pending against the accused.

Having carefully perused through the record and listened to the submissions of both counsel, as well as the affidavits and written submissions, it is not in contention that the applicant has a fixed place of abode in naluvule village, naluvule parish, wakiso subcounty, wakiso district which is within the jurisdiction of this honourable court. Paragraph 12(a) (b) 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 Vs. Uganda Miscellaneous Application no. **0065 of 2004** that:

The onus is on the applicant to satisfy the court that he has a permanent place of abode in a particular village, subcounty 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 necessary'.

Indeed, the applicant satisfied this requirement by furnishing an introductory letter for from the Local Council Chairman of naluvule LC 1, and availing a copy of his National Identity Card.

It is also not also in contention that the applicant has presented sureties who are substantial and who will be able to ensure his attendance to court as and when directed. The term 'Surety' is defined 24-6, 2025

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by paragraph 4 of the Constitution (Bail Guideline for Courts of Judicature) Practice directions Legal Notice No.8 of 2022 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. Section $16(4)$ (b) of the TIA 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; 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 and the 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.

Each of these sureties presented letters of introduction from their respective L. C.1 chairpersons and a copy of their National Identity Cards. Additionally, the applicant in his application describes his relationship to each surety. As noted from the record, two of the proposed sureties are described as family members i.e. Uncle and wife. While the third surety is described as a longtime friend and the area LC.1 secretary. The described relation creates a strong personal connection between the Applicant and the stated sureties.

That notwithstanding, what is in contention is

- 1) whether the applicant will abscond or not, - 2) whether there exist exceptional circumstances for this court to grant bail to the applicant, and - 3) whether the greater interests of justice favour or disfavour the release of the accused persons on bail.

# Whether the applicant will abscond or not

Section 16 (1) $\overline{(b)}$ of the TIA provides that the court may refuse to grant bail to a person accused of an offence where he or she will abscond when released on bail. There is always a concern as to whether the applicant if granted bail, will return to face trial. In Aliobe Joseph & $1560$ $28$ 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 .... Where there are reasonable grounds to infer that 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 the instant case, the court considers that this court has the discretion to grant bail but remains alive to the gravity of the offence of aggravated robbery with which the applicant is charged. I find that there is a likelihood of the applicant absconding owing to the severity of the impending sentence for the alleged offence to wit death.

## Whether there exist exceptional circumstances for this court to grant bail to the applicant.

Section 16 (1) (a) of the TIA provides that the court may refuse to grant bail to a person accused of an offence if he or she does not prove, to the satisfaction of the court that exceptional circumstances exist justifying his or her release on bail. Furthermore, Section 16(3) of the TIA, read together with Paragraph 14(2) of the Bail Guidelines 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 certificate of no objection signed by the Director of Public Prosecutions - c) Infancy or advanced age of the accused person

The definition of exceptional circumstances in Subsection 3 above is presented in mandatory language and does not permit the court to consider additional circumstances. Once any of the conditions precedent is not met, the application for bail must fail as a matter of law. The applicant avers that he is of 47 years and the sole bread

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winner which grounds are not included under Subsection 3, thus, the applicant cannot be granted bail based on exceptional circumstances. However, the failure to demonstrate an exceptional circumstance does not prevent the applicant from being granted bail, as established by the court in the Foundation for Human Rights Initiative Vs. Attorney General. Constitutional Petition No. 020 of 2006 and by the promulgation of the Constitution, which made bail discretionary. Under the new constitutional framework, the applicant must convince the court that they will not abscond and that granting bail is in the interests of justice.

Be that as it may, this court cannot overlook the gravity of the offence with which the applicant has been charged with. In Tumwekwase Owen v. Uganda, Mbarara HCT-05-CR-MA 57/2019 Hon Justice Ssekaana Musa 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 ... The applicant has not proved any exceptional 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 the instant case the applicant has not provided court with any exceptional circumstances to warrant court exercise its discretion to grant him bail.

## Whether the greater interests of justice favour or disfavour the release of the accused persons on bail.

The court is given discretion whether to grant or deny bail. However, the court must exercise its discretion judiciously. The law requires the judicial officer to act fairly and equitably in exercising their judicial discretion. In Col (Rtd) Dr. Kizza Besigye 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.

The court must balance the accused's right to be presumed innocent until proven guilty and his right to personal liberty vis a vis the right of the public to live in a secure and peaceful environment. The latter right encompasses the state's obligation to prosecute those who violate the law. It must be noted that there are many criminal cases that are on backlog that are being given priority now. The applicant's matter is a fairly new one and the respondent has submitted that all investigations are complete. In the interest of justice, it is only fair that those earlier cases be dealt with as a matter of priority, followed by the most recent where the instant one falls. Be that as it may, 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. There is assurance that investigations are complete and witnesses will be produced when the matter is fixed for hearing on its merits. While bail is a constitutional right, it is not absolute. In the present circumstances, the court finds that granting bail would not adequately serve the interest of justice. With the operationalisation of this new court, and ready to hear the matter promptly, and concluded without undue delay, the accused will not suffer prolonged pretrial detention.

#### **Decision**

Having analysed the law, evidence and authorities on the subject of bail, this court finds that the applicant has not satisfied court that he will not abscond when released on bail and neither has the applicant satisfied this court that exceptional circumstances exist to grant this application. The applicant has not met the requirements for favourbale exercise of the court's discretion to grant bail. I hereby deny the applicant bail for the following reasons;

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$L_{\text{fflo}}$ $4-6.2015$

- 1. As much as the accused person alleges that he has a fixed place of abode, and substantial sureties, 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. - 2. The applicant has not shown any exceptional circumstances that would warrant this honourable court to exercise its discretion by granting him bail. - 3. The applicant was already committed to the high court, therefore there is likely to be no substantial delay in his trial. - 4. Investigations are complete and the matter is ready for hearing on its merits and therefore it is not in the interest of justice that this application be granted.

In the final result, I accordingly dismiss this application. The accused person's/applicant's case shall be prioritized and cause listed for hearing in one of the nearest convenient session. The respondent should ensure that all when the matter is cause listed, all witnesses are brought to court so that this matter is expeditiously heard on its merits.

## I SO ORDER

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# **GRACE FLAVIA LAMUNO JUDGE** 04 June 2025