Bisaso v Uganda (HCT 05-CR-MA 181 of 2021) [2021] UGHCCRD 21 (17 December 2021)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA **HCT-OO-CR-CM NO. 181 OF 2021 [ARISING OUT OF HCT-00- 294 OF 2021) BISASO PATRICK ALIAS GOMBE=============APPLICANT**

## **VERSUS**

**•UGANDA RESPONDENT/PROSECUTOR**

BEFORE HON. JUSTICE TADEO ASIIMWE

## **RULING**

This is an application for bail pending trial and is brought by way of Notice ofMotion under Article 28 & 126 ofthe Constitution, Section. 14 (1) and rule <sup>3</sup> ofthe Trial on Indictments Act Rules.

The applicant is indicted with Kidnap with intent to murder contrary to section 243 ofthe Penal Code Act Cap 120.

**WTie** grounds ofthe application as presented and supported by the affidavit ofthe applicant are as follows;

1. That the applicant has a constitutional right to apply for bail under article 23(6) ofthe constitution ofthe republic of Uganda.

2. That the applicant is presumed innocent until proved guilty under article 28 ofthe constitution ofthe republic of Uganda

3. That the applicant has a fixed place of abode within the jurisdiction of this Honorable court.

4. That the applicant has substantial sureties within the jurisdiction of this court who have undertaken to ensure the applicant's compliance with bail conditions. . j?

**1**

5. That the applicant has never been previously charged with any other criminal offence.

6. That it is in the interest ofjustice that this application be granted.

At hearing, the applicant was represented by counsel Mayanja Twaha While the respondent was represented by Nandawula Lilian a State attorney form ODPP.

•''oth Counsel filed written submissions and made oral highlights oftheir submissions at the hearing which I shall consider in this ruling.

In his submissions, counsel for the applicant submitted that the applicant is presumed innocent until proved guilty and has a right to apply for bail under article 23 of the constitution of the republic of Uganda. That the applicant has been incarcerated for about a year without trial and that the date oftrial is not known. That this court has discretion under section 14 &15 ofthe T. I. A to grant the accused person bail. That the applicant is a law abiding citizen and has not been previously convicted of any offence or history of absconding from jurisdiction of court. That he is a widower with four children and 2 dependents who are suffering in his absence. That •fche applicant was committed on 21/10/2020.

He finally submitted that the applicant has a fixed place of abode at Ndibulungi, Luweero District as per the introduction letter from LC 1.

On sureties, counsel submitted that the applicant has substantial sureties who are capable and willing to ensure that the applicant complies to the terms of bail if granted. The said sureties include Bisasso Disan, brother of the applicant and a resident of Yandwe MK LC, kakabala parish, Butuntumula sub county Luweroo district, Kabugo Edward, a paternal uncle to the applicant and a resident of Ndibulungi Zone LC1, Sentongo stivine an executor of the applicant's father's will and a resident of Ndibulungi Zone LC1, Selunkuma Salim Zimula

In reply, the learned state attorney objected to the application for reasons that the 4th and 2nd sureties are not substantial since their statements in court are contradictory to their statements in court. That the 2nd surety in his affidavit stated that he is paternal uncle ofthe applicant while in court he stated that he is a biological brother ofthe applicant. That the 4th surety Selunkuma Salim Zimula.deponed to be a biological brother and yet in court he stated that he is a friend. He further submitted that the 1st surety is equally not substantial since he stays far apart from the applicant. That >the applicant also did not prove his place ofresidence arguing that the LC letter is not sufficient proof of residence and that there is need to avail land tittle, tenancy agreement or electricity bill receipts which the applicant did not avail in court.

## **RESSOLUTION.**

The rationale behind the grant ofbail is in respect to upholding one's right to personal liberty. It is a constitutional right premised on the presumption of innocence as protected under Article 28 (3) of the Constitution of the Republic ofUganda.

"Under Article 28 (3) ofthe Constitution ofthe Republic ofUganda, every wperson is presumed innocent until proved guilty or pleads guilty. 'Consequently, an accused person should not be kept on remand unnecessarily before trial."

A bail applicant must not be deprived of his/her freedom unnecessarily or as merely punishment where they have not been proved guilty by a competent court oflaw.

The Court have discretionary powers to grant bail under Section 14 (1) of the Trial on Indictments Act and the conditions under which bail is to be granted under Section 15. These circumstances are broken down to proof of exceptional circumstances like grave illness, a Certificate of no objection from the Director of Public Prosecution, infancy or advanced

age; and the fact that the accused will not abscond to be proved by the accused having a fixed place of aboard, sound sureties, among others.

In this application, the state Attorney objected to application for reasons that that the applicant did not prove residence since had no utility bills or land tittle or tenancy agreement to prove residence.

I disagree with learned state attorney's argument that the applicant did not •rove residence. In my view, proof of residence does not necessarily require utility bill though it may be additional evidence. The Introductory letters by the LClmay suffice as proof ofresidence iffound to genuinely issued.

Further it is immaterial for sureties to reside in a different area with the applicant provided they are within the jurisdiction ofcourt which is not in dispute in this matter. Therefore, the learned state attorney's argument for objecting to the 1st surety is unfounded.

However, I am in agreement with the state Attorney's argument that the 2nd and 4th sureties are not substantial. It is clear from the record that indeed the 2nd surety, Kabugo Edward in his affidavit deponed that he is 'paternal uncle of the applicant while in court he stated that he is a biological brother of the applicant. The 4th surety, Selunkuma Salim Zimula also deponed to be a biological brother and yet in court he stated that he is a friend of the applicant. These sureties are indeed unreliable and it would be absurd for court to rely on them.

In addition, kidnap with intent to murder is a serious offence which attracts a maximum sentence of death. Although the applicant's liberty is paramount in the administration ofjustice, his liberty does not lie in a vacuum. It must be weighed with the danger it poses to the victim and the Public in the criminal justice system.

I am not convinced that the applicant should be granted bail and I shall exercise my discretion not to grant bail to the accused.

This application therefore has no merit and the same is here by dismissed.

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TADEO ASIIMWE.

\*TUDGE 17/12/2021.