Akwenyu v Uganda (Criminal Miscellaneous Application 5 of 2024) [2024] UGHC 634 (2 July 2024)

Full Case Text

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Criminal Miscellaneous Application No. 05 of 2024

(Arising from Criminal Case No. AA 598 of 2022)

Akwenyu Charles (A4) :::::::::::::::::::::::::::::::::::: 10

Versus

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Uganda :::::::::::::::::::::::::::::::::::

Before: Hon. Justice Dr Henry Peter Adonyo

**Ruling on Bail Application**

1. Background:

Akwenyu Charles (the applicant)together with others were charged with two counts of Aggravated Robbery contrary to Sections 285 and 286 of the Penal Code Act (PCA) and Attempted Murder contrary to section 204 of the Penal Code Act, Cap. 120.

2. Legal basis of the Application: 20

> The application is by Akwenyu Charles (the applicant) is brought a Notice of Motion under Articles 23(6)(a) and 28(1)(3)(a) of the Constitution of the Republic of Uganda, 1995, (the Constitution), and Sections 14 and 15 of the Trial on Indictments Act, Cap 23 (TIA) for orders that the applicant who is now on remand at Soroti Government

$\mathsf{S}$

prison, be released on bail pending the hearing of his case on such upon conditions $\mathsf{S}$ as this Honourable Court shall deem fit.

3. Grounds:

The application was anchored on grounds briefly stated in the application and enhanced in the supporting affidavit sworn by the applicant. That;

- a) The applicant has the constitutional right to apply for bail, and the court has the discretion to consider granting bail. - b) The applicant was arrested in October 2022 and charged with the offences of aggravated robbery and attempted murder and has been on remand since 16th March 2023, when he was committed for trial in this court. - c) The applicant is presumed innocent until proven guilty or until he pleads guilty to the charges. - d) The applicant has been on remand at Soroti Government Prison for over nine months and has reached the mandatory 180-day remand period, which entitles him to apply for and be released on bail. - e) The applicant has a permanent and fixed place of abode at Ogorai village, Odudui parish, Arapai sub-county, Soroti district within the court's jurisdiction. - f) The applicant has two proposed sureties who understand their obligation to this Court and are ready to be presented to it. - g) The applicant will not interfere with the state witnesses or any evidence to be tendered to support the charges. - h) The offences with which the applicant is charged are bailable.

- i) No other pending criminal charges against the applicant or any known previous criminal record exist. - j) The applicant will not abscond when released on bail, and it would be fair and just for the applicant to be granted bail pending his subsequent trial. - 4. Affidavit in reply: - The deputy registrar of this court, on 11th March 2024, ordered the respondent to 10 file their affidavit in reply to the application and the written submissions by 21st March 2024, which they did not do. There is also a filed affidavit of service deponed by Okello Edward on 11th March 2024, evidencing the service of the instant application onto the respondent. This instant application is unopposed because the respondent did not file their affidavit in reply. 15

## 5. Submissions:

Through Counsel Locoto Kevin, the applicant filed written submissions arguing this application, which the court has considered together with the application, affidavits, attached documents, relevant legal authorities, and applicable laws while determining it.

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## Decision of Court on Bail:

The position of the law is that when an application for bail is presented, the court takes into account the presumption of innocence as the primary principle for which a court, may in the exercise of its discretion, consider the releasing of an accused person on bail pending trial as is provided for under Article 28(3)(a) of the

Constitution of the Republic of Uganda, 1995 which provides that; Every person who is charged with a criminal offence shall be presumed to be innocent

until proved guilty or until that person has pleaded guilty.

Additionally, Article 23(6)(a) of the Constitution of the Republic of Uganda provides $5$ that:

Where a person is arrested in respect of a Criminal Offence, he 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 applicant herein have made this application in cognisance to the above 10 provisions of the Constitution.

Section 14 (1) of the Trial on Indictments Act, Cap 23 explains further the standpoint outlined in Article 23(6)(a) of the Constitution as it underpins a court's discretion to release an accused person on bail, at any stage of the proceedings, on taking from

him or her a recognisance consisting of a bond, with or without sureties, for such an 15 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.

The Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022 under paragraph 5 provides for the general principles applicable in the consideration

20 of a bail application thus;

> The court shall, in considering a bail application, be guided by the following principles as enshrined in the Constitution-

> (a) the right of an applicant to be presumed innocent as provided for in article 28 (3) (a) of the Constitution;

(b) the applicant's right to liberty as provided for in article 23 of the Constitution; 25

(d) the discretion of court to grant bail on such terms and conditions as the court $\mathsf{S}$ considers reasonable; and

(e) the need to balance the rights of the applicant and the interests of justice.

Paragraph 12 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions provides for contents of a bail application hence;

An application for bail shall contain the particulars of the applicant, accompanied by-10

(a) a copy of the applicant's national identity card, or passport or aliens identification card, or employment card, or student identity card;

(b) an introduction letter from the Local Council 1 chairperson of the area where the applicant resides:

(d) expounded grounds for the application.

Section 15(1) of the Trial on Indictment Act provides thus;

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 20 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.

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 $\mathsf{S}$ 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. - However, these special circumstances have been found by the Constitutional Court 10 of Uganda to be non-mandatory.

On the other hand, Section 15(4) of the Trial on Indictment Act provides that; 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 15 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;

comply with the conditions of his or her bail; and 20

(d) whether there are other charges pending against the accused.

Consequently, in deciding whether to grant or not to grant bail to the applicant, the court is commanded to consider an accused's demonstration that he/she will not abscond trial by considering the above factors, which must be examined one by one and a decision made thereto.

In respect of this application, the said factors are considered hence. In his affidavit, the applicant conceeds that it was at the Honourable Court's $\mathsf{S}$ discretion to release him on bail pending trial. He also alluded to his right to apply for bail.

Because it is his constitutional right to apply for bail, the applicant's averment is aligned with Article 23(6)(a) of the Constitution.

In his affidavits in support of this application, the applicant, while exercising his rights 10 to apply for bail, does concede to this Honourable Court's discretion to release him on bail pending the hearing of their case.

The applicant is charged with the offences of aggravated robbery and attempted murder which are capital in nature. Both these offences are bailable. However,

whether the court is inclined to exercise the discretion to grant or not bail is a matter 15 depending on the circumstances of each case.

Capital offences in this regard, attempted murder and aggravated robbery, are bailable; however, whether the court is inclined to exercise the discretion to grant or not is a matter dependent on the circumstances of each case and the evidence adduced guaranteeing the applicant's return to the court to attend the trial.

Section 14(1) of the Trial on Indictments Act, Cap 23 stipulates the stance outlined in Article 23(6)(a) of the Constitution. It underpins this Court's discretion to release an accused person, at any stage of the proceedings, 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 25 a date and at such a time as is named in the bond.

- The Constitution (Bail Guidelines for Courts of Judicature) Practice Directions, 2022, $\mathsf{S}$ under paragraph 5, provides the general principles in consideration of a bail application thus: - a) The right of an applicant to be presumed innocent as provided for in article 28(3) of the Constitution; - b) The applicant's right to liberty as provided for in Article 23 of the Constitution; - c) The applicant's obligation to attend the trial; - d) The discretion of the court to grant bail on such terms and conditions as the court considers reasonable; and - e) The need to balance the rights of the applicant and the interest of justice. - Consequently, in deciding whether to grant or not to grant bail to the applicant, the 15 court is commanded to consider an accused's demonstration that he/she will not abscond trial by considering the above factors, which must be examined one by one and a decision made thereto.

## a) Fixed place of abode:

In his affidavit supporting his application, the applicant stated that he has a fixed 20 place of abode in Ogorai village, Odudui parish, Arapai sub-county, Soroti district within the court's jurisdiction.

Section 15(4) (a) of the Trial on Indictments Act reinforces the need for proof of a fixed place of abode as one of the determinants as to whether the applicant is likely

to abscond once granted bail as any failure of proving the same would render 25 unlikely any possibility of an accused being granted bail.

The above provision is also amplified by paragraph 13(k) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions.

While the law does not define the phrase 'fixed place of abode,' my interpretation is $\mathsf{S}$ that a fixed place of abode ordinarily must be within the jurisdiction of the court considering the bail application.

This means that one is traceable and is not likely to abscond, as one would easily attend court whenever required.

- Apart from the averment in his application that the applicant has a fixed place of 10 abode, the particulars on his annexed copy of his National Identity Card "B", which I have examined are aligned with those in annexure "A", the LC1 letter and these together proves that the applicant is a true permanent resident of Ogorai village, Odudui parish, Arapai sub-county, Soroti district within the court's jurisdiction. - That being the case the requirement of an applicant having a fixed place of abode is 15 found to have been proved as this aids in his traceability if granted bail.

b) Proposed sureties:

A "surety" is defined under Paragraph 4 of the Constitution (Bail Guidelines for Courts of Judicature) Practice Directions to mean a person who undertakes to ensure

that the applicant will appear in court and abide by the bail conditions and who 20 furnishes security which may be forfeited to State if the applicant fails to appear in court.

Furthermore, Section 15 (4)(b) of the Trial on Indictment Act and paragraph 13(1) (I) of the Constitution (Bail Guidelines for Courts of Judicature) Practice Directions

provide that in considering whether an accused is likely to abscond the court shall 25 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.

- Paragraph 15 of the Constitution (Bail Guidelines for Courts of Judicature) Practice $\mathsf{S}$ Directions provides for determinants on the suitability of a surety, thus - (1) When considering the suitability of a surety, the court shall take into - (a) The age of the surety; - (b) Work and residence address of the surety; - (c) Character and antecedents of the surety; 10 - (d) Relationship to the accused person; and - (e) Any other factor as the court may deem fit. - (2) Subject to sub-paragraph (1) the proposed surety shall provide documentary proof, including- - (a) A copy of his or her national identity card, passport or alien's identification card; 15 (b) An introduction letter from the local council 1 Chairperson of the area where the surety is ordinarily resident or

- The applicant proposed two sureties whose particulars he disclosed as; 20 - a) Aceko Anna, the applicant's mother and a holder of National Identity Card No. CF58038102M8TE, and a true permanent resident of Ogorai Village, Odudui Parish, Arapai Sub-county, Soroti District. - b) Alonya Richard, the applicant's maternal uncle and a holder of National Identity Card No CM58038102KJ3J and a true permanent resident of Ogorai Village, Odudui Parish, Arapai Sub-county, Soroti District.

The applicant has properly disclosed his relationship to his proposed sureties and provided copies of their National Identification documents (annexures "C1")

- together with their respective local council chairpersons' introductory letters $\mathsf{S}$ (annexures "C2") which I have carefully examined. These documents bear information related to the proposed sureties' fixed places of abode which are aligned with the annexures and the averments. - The presented sureties are the applicant's mother and maternal uncle who manifestly are superior in age and thus bear likely command over the applicant. This 10 fact is assuring to the court that they will ensure that the applicant abides by any terms and conditions of the release on bail which may be set by this court for the applicant and thus they would ensure that the applicant attends his trial to its conclusion. Accordingly, the proposed sureties are found to be substantial.

## 15 7. Conclusion:

This application for the grant of bail is found to have merit with any grant of bail seen to be unlikely to subvert the cause of justice given the substantiality of the sureties and the clear proof that the applicant has a permanent place of abode which is within the jurisdiction of the High Court.

For that reason, bail is granted to the applicant pending his trial upon the conditions 20 set below, taking into account the nature of the offences he is charged with.

## 8. Bail Conditions:

- a) The applicant is to deposit a Cash bond of Shs. 2,000,000/=. - b) Each of the sureties presented is bound in the sum of Shs 10,000,000 not cash. - c) The applicant and each of his sureties are to provide a recent photograph, telephone numbers and copies of national IDs to the Registrar of this court

- and the Chief Resident State Attorney, Soroti, for filing and for record purposes. - d) The Applicant to report to the Registrar of this Court once a month on the last Monday of each month with effect from 05/08/2024 until otherwise directed by this court.

I so order. 10

Hon. Dr. Justice Henry Peter Adonyo

Judge

$2nd$ July 2024.

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