Byaruhanga v Uganda (Criminal Miscellaneous Application 121 of 2023) [2023] UGHCCRD 192 (31 August 2023)

## THE REPUBLIC OF UGANDA

# IN THE HIGHCOURT OF UGANDA HOLDEN KAMPALA CRIMINAL DIVISION **CRIMINAL MISC . APPLICATION NO.121 OF 2023** (Arising from Buganda Road chief Magistrate court case No.13/2023) BYARUHANGA ROBERT.................................... **VERSUS**

UGANDA ...................................

### **RULING**

### **BEFORE: HON. JUSTICE ALEX MACKAY AJIJI**

The applicants instituted this application by Notice of Motion seeking for an order that:-

a) The applicant be released on bail pending the hearing of criminal case No:13 of 2023.

The application is brought under the provision of Article 23(6) (a),(b)of the constitution of the Republic of Uganda 1995, section $14(1)$ and $15(1)$ , (3)(a) and (c) of the Trial on Indictment Act Cap .23, Rules 2 and 4 of Judicature (Criminal Procedure) (Application) Rules S. I 41-1). The grounds for the application are that:

- 1. The Applicant was arrested and charged with the offence of Aggravated robbery $c/s$ 286 and 286 of the penal code Act and that it is bailable by this honorable court. - 2. The applicant was arrested on the 29<sup>th</sup> day of April 2023 and detained at Railway police station for two weeks where after he was produced in court on the 12<sup>th</sup> day of May 2023 and remanded at Luzira upper prison.

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- 3. That the Applicant has a fundamental constitutional right to apply for bail and this honorable court has the discretion to consider the grant of bail. - 4. That the Applicant has sound sureties within the jurisdiction of this court who are able and willing to procure the accused at any time when needed by this court. - 5. That the Applicant has a permanent place of abode - 6. That the Applicant shall not abscond when released on bail. - 7. That it is just and fair to grant this Application.

The respondent also did file& a reply to the Notice of motion.

The background of this application is that applicant was charged and convicted with the offence of aggravated robbery c/s285 & 286 of the Penal Code cap 120.

## **Representations**

accused person while $M/s$ the Wakabala&Co. Advocates represented Nakimbugwe Irene argued against the application.

In his submissions, counsel for the applicant submitted that he has four sureties who understand their roles and responsibilities and undertake to fulfill the terms of the Applicant's bail if granted. Further counsel for the applicants submitted that he had explained the duties of the sureties to them and they confirmed to have understood the same. The Applicant being a civil servant makes it easy for him to be traced as his known place of work is Naguru police headquarters and the sureties can easily prevail over him to report to court as and when required. Also that the Applicant has no capacity to interfere with witnesses. The Applicant has been on remand since April which makes it 2 months and a continued absence from his job might prejudice him.

In reply, Counsel for the respondent submitted that the Applicant has spent approximately 2 months on remand and he is not yet committed to high court

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as further inquiries are still being carried out given that this was an organized and syndicated crime involving other culprits who are still on the run. The Applicant has also not proved exceptional circumstances that would warrant him to be considered for bail.

## **COURT'S CONSIDERATION;**

Article 28(3)(a) of the constitution provides that; "Every person who is charged with a criminal offenceshall-(a) be presumed to be innocent until proved guilty or until that person has pleaded guilty."

Article 23(6)(a) of the constitution provides; 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."

Section 14 and 15 of the Trial Indictment Act are to the effect that a person indicted can only be released on bail if he or she proves to the satisfaction of the court that special circumstances do exist to warrant his/her being released on bail. The circumstances are regarded as specialinclude grave illness, infancy or old age. Proof of these circumstances though is not mandatory as courts have the discretion to grant bail even where none is proved. See(**Bidong** Zenoneand 2 others vesrus Uganda (Misc . App No.0024 of 2015 arising from HCCC No.0028 of 2012 High court of Arua).

The court's discretionary powers to grant bail are enshrined under $S.14$ (1) of the TIA. However, the right to bail is a fundamental right guaranteed by Article 23(6) of the 1995 Constitution of the Republic of Uganda. Its basis is found in Article 28 of the same Constitution which states that an accused person is to be presumed innocent until he or she is proved or he or she pleads guilty.

Consequently an accused person should not be kept on remand unnecessarily without trial.

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An applicant should not be incarcerated if hehas a fixed place of abode, has sound sureties capable of guaranteeing that he will comply with the conditions of his/her bail and is willing to abide by all other conditions set by court.

In the instant case, The Applicant in his affidavit indicates that he has a fixed placeof abode at Namataba LC1, Bweyogerere division, Kira municipality in Wakiso District. Where he has lived for over 9 years with his family has per the attached copy of the letter of introduction from the LC1 stating he is a true resident of Namataba, a copy of the utility bills and he has also attached a copy of his national ID. I therefore find that the Applicant has proved a fixed place of abode.

With regards to sureties .the Applicant has submitted four sureties to this court, theseinclude;

- being Mr. Kabakyenga Apollo a long time friend to the a) The first accused. He is a police officer working at Naguru Headquaters and in a rank of Assistant superintendent of police which rank is higher than the applicant's. He is a resident of Namataba LC1, Bweyogerere division, Kira municipality in Wakiso District. He is being introduced to this honorable by an area Lc1 letter dated 3/6/2023 and a national ID court No. CM64101101N1NJ. Both marked as "C1". - b) Surety NO.3, The first being, Mr. Ngobi Hamuza a long time friend to the accused. He is a business man by profession and a resident of Seembule B village LC1, Kabowa division, in Rubaga division. He is being introduced to this honorable court by an area Lc1 letter dated 3/6/2023 and a national IDNo. CM7300810158TA. Both marked as "C2". - c) Surety NO.3, The first being Ms. Atugonza Space, a wife to the accused. She is a resident of Namataba LC1, Bweyogerere division, Kira municipality in Wakiso District. She is being introduced to this

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honorable court by an area Lc1 letter dated 3/6/2023 and a national IDNo. CF88092102597H. Both marked as "C3".

d) Surety NO.3 Ms. Ayebare Charity a resident of Bulega "B" LC1, Musaale B Ssumbwe parish in Wakiso district. He is a businessman. He is being introduced to this honorable court by area Lc1 letter dated 12/06/2023 and a National ID No:CF900551079NZG Both marked as "D".

Counsel for the Applicantsubmitted that he had explained to these sureties their roles and duties and they had understood them. I find that with no evidence to the contrary, the sureties produced are substantial and understand their duty not only to this courtbut the applicant as well.to ensure that he does notabscond. The accused also has a fixed place of abode within the jurisdiction of this court and can easily be traced and lastly the offence of aggravated robbery though grave is bailable

In the circumstances, I allow this application on the following terms;

- a) The accused shall pay $2,000,000/$ =as cash (Two million shillings) - b) Each of the sureties shall also execute a non cash bond of OGX $5,000,000/-$ non cash. - c) The Applicant shall also report to the Deputy Registrar Criminal Division court once every 1<sup>st</sup> Wednesday of every month until the trial of the offence commences. - d) In default, the defaulting accused to forfeit the bond sum to the state, be subject to re-arrest and confinement in prison till the trial of the case is heard and finished.

I so order.

Dated at Kampala this ....................................

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**ALEX MACKAY AJIJI**

**JUDGE**

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