Chelengat v Uganda (Criminal Miscellaneous Application 14 of 2023) [2024] UGHC 542 (13 May 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO CRIMINAL MISC. APPLICATION NO. 14 OF 2023 (ARISING FROM GOMA CRIMINAL CASE NO. AA 70 OF 2022)

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CHELENGAT FRED :::::::::::::::::::::::::::::::::::: **VERSUS**

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UGANDA ::::::::::::::::::::::::::::::::::::

## BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

## **RULING**

- 1. This was an application for bail pending committal to this court brought by Notice of Motion under the provisions of Article 23 (6) (a) and (b) of the Constitution of the Republic of Uganda, 1995 as amended; sections 14 (1) and 15 (3) of the Trial on Indictments Act, Cap. 23 and Rule 2 of the Judicature (Criminal Procedure) (Applications) Rules, S. I $13 - 8.$ - 2. The grounds of the application are briefly contained in the Notice of Motion and supported in detail by the Applicant's affidavit dated 24th February, 2023. The grounds are as follows that: - (a) the Applicant is a resident of Kinawataka Police Barracks, Kaggo Zone, Mbuya 1 Parish, Nakawa Division, Kampala District and a student by occupation;

- (b) the Applicant was born on 24th day of March, 2000 to his parents Mr. Chepkwurui Isaac and Mrs. Cheptoyek Irene of Kinawataka Police Barracks, Kaggo Zone, Mbuya 1 Parish, Nakawa Division, and that he is at the time of this application 22 years old; - (c) the Applicant was arrested on the 3rd day of August, 2022, on allegation of defilement of a girl aged seven (7) years which he completely denies; - (d) prior to his arrest and detention, the Applicant has never been charged with any criminal offence; - (e) the Applicant has four (4) people who are willing to stand as sureties for him and ensure that he attends court when required; - (f) the Applicant is a school going student and that keeping him in prison will act as a bar to his studies which will affect his future in the long run; - (g) the Applicant has been on remand for more than six months since his arrest and he has never been committed for trial to the High Court; - (h) the Applicant will not interfere with the prosecution witnesses once granted bail; - (i) the Applicant shall not abscond once released on bail since he has a place of abode in Kinawataka Police Barracks, Kaggo Zone, Mbuya 1 Parish, Nakawa Division;

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- (j) the Applicant has a constitutional right to apply for bail; and - (k) it is fair, reasonable and in the interest of justice that the Applicant is released on bail pending the hearing of Criminal Case No. 70 of 2022. - 3. The Respondent filed an affidavit in reply deponed on 14th February, 2024, by Ms. Ayebazibwe Christine, a State Attorney at the Office of the Director of Public Prosecutions. The Respondent's contention are that: - (a) the Applicant is charged with aggravated defilement which is a grave offence; - (b) the Applicant has not attached documentary proof to show that the sureties mentioned will be in position to pay for the bond in case the Applicant absconds; and - (c) the Applicant has not furnished proof that he has a permanent place of abode at Kinawataka Police Barracks, Kaggo Zone, Mbuya 1 Parish, Nakawa Division and therefore he may abscond if granted bail. - 4. During the hearing of this application, the Applicant was represented by Counsel Halid Salim from M/s Halid Kwerit & Co. Advocates. The Respondent was represented by Counsel Nanyonga Josephine, a Senior State Attorney from the Office of Director of Public Prosecutions. Both parties filed their written submissions and the

Applicant's counsel orally submitted in rejoinder. The submissions are considered in this ruling.

- 5. The Applicant submitted that on the 3rd day of August, 2022, he was arrested on allegation of defilement of a girl aged seven (7) years during the month of January, 2022, which he completely denies because he even doesn't know how the alleged victim looks like. On 16th day of August, 2022, he was produced before Mukono Chief Magistrate's Court and remanded to Luzira Upper Prison. The Applicant's counsel submitted that since then the Applicant has been appearing before the said court on several occasions for mention of his case pending committal to this court but to-date he has not been committed to this court for trial. - 6. The Applicant added that at the time of his arrest, he had a fixed place of abode at Kinawataka Police Barracks, Kaggo Zone, Mbuya 1 Parish, Nakawa Division, Kampala District, where he was living with both parents, which is well within the jurisdiction of this honourable court. The Applicant's counsel submitted that at the time of the Applicant's arrest, he had already sat for UCE but due to financial constraint, his parents were still raising money for his school fees and he was due to resume his studies in Senior 5 in 2023. However, his detention in prison has greatly affected his studies and if he is not released on bail to continue with his education, his whole future will be affected due to malicious prosecution because he is very sure that the prosecution has no evidence against him whatsoever on the said allegation, which

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explains the reason why he has not been committed to this court for trial to-date.

- 7. The Applicant's counsel submitted that the Applicant has since spent 1 year and 8 months on remand without being committed to the High Court for trial. That considering the long period the Applicant has spent on remand without committal, he qualifies for mandatory release on bail as required by Article 23 (6) (c) of the Constitution of the Republic of Uganda, 1995. - 8. The Applicant's counsel presented four sureties as follows: - (a)Mr. Chepkwurui Isaac aged 45 years, the Applicant's biological father, a police officer, resident of Kinawataka Police Barracks, Kaggo Zone, Mbuya 1 Parish, Nakawa Division, Kampala District, with mobile telephone No. 0777 765534: - (b) Mrs. Cheptoek Irene aged 44 years, the Applicant's biological mother, a business-lady resident of Kinawataka Police Barracks, Kaggo Zone, Mbuya 1 Parish, Nakawa Division, Kampala District, with mobile telephone No. 0777 452870; - (c) Mr. Chelimo Jabeth aged 24 years, the Applicant maternal uncle and a student at Kyambogo University who also works as a security guard with KK Company, resident of Kinawataka Police Barracks, Kaggo Zone, Mbuya 1 Parish, Nakawa

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Division, Kampala District, with mobile telephone No. 0774 230628; and

- (d) Mr. Sande Leonard aged 27 years, the Applicant's biological elder brother, a security guard working with SGA Company, resident of Kinawataka Police Barracks, Kaggo Zone, Mbuya 1 Parish, Nakawa Division, Kampala District, with mobile telephone No. 0787 814074. - 9. The Applicant's counsel submitted that all these sureties are aware of their duties as sureties whose main obligation is to ensure that he attends court whenever he is required to do so. The Applicant further contended that he is a law-abiding citizen who has always been very obedient to his parents and the community at large. That other than this allegation of aggravated defilement which is false, the Applicant has never been arrested, charged or convicted for any other offence. That when released on bail, the Applicant will never abscond or interfere with prosecution investigations which seem to be in vain. The Applicant added that he will not interfere with prosecution witnesses whom he even doesn't know. That he pledges to strictly abide by and be guided by the terms and conditions that this honourable court will impose if granted bail. - The Applicant's counsel submitted that it is the Applicant's $10$ Constitutional right to apply for bail though it is at the discretion of this honourable court to grant or refuse to grant the Applicant bail. Counsel prayed that this honourable court exercises its discretion in the

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Applicant's favour and grants him bail on favourable conditions it deems fit.

- $11.$ On the other hand, the Respondent's counsel argued that the onus of establishing any of the factors for grant of bail to the satisfaction of court squarely lies on the Applicant and that obligation is discharged by presenting credible evidence of high value as it was observed in Aganyira Albert v. Uganda Criminal Miscellaneous Application No. 0071 of 2013. - $12.$ The Respondent's counsel argued that the Applicant stands charged with aggravated defilement c/s 129 (3) (4) (c) of the Penal Code Act, Cap. 120 which is a grave offence and therefore the Applicant may abscond if granted bail. That the Applicant avers that he has a fixed place of abode, however, he has not furnished proof that he has a permanent place of abode at Kinawataka Police Barracks, Kaggo Zone, Mbuya 1 Parish, Nakawa Division, as he alleges and therefore, he may abscond if granted bail. - Additionally, the Respondent's counsel submitted that the $13.$ national identity card and birth certificate of the Applicant states that he resides in Kween District and the school identity card attached alleged that the Applicant is a student of Son Shine Christian High School, which is in Iganga District. Counsel submitted that the Applicant's sureties have not furnished this honourable court with documentary evidence to prove that they will be in position to pay for the bond in case the Applicant absconds. The Respondent's counsel

$\overline{7}$ prayed that this court through its discretionary powers does not grant bail to the Applicant so that he is committed to the High Court for trial.

- $14.$ In rejoinder, the Applicant's counsel submitted that with regards to the assumption that the sureties are not able to pay the bond, the $1^{st}$ surety who is the father of the Applicant is a public servant as a police officer which means that he is in gainful employment and earns a salary. That the $2nd$ surety informed court that she is a business woman and house wife and that the $3rd$ and $4th$ sureties have presented copies of their employment cards. - 15. The Applicant's counsel submitted that there is no proof that the Applicant will abscond and that this court has held that if court is to rely on speculations, then there will be no justice to be done. That there is no affidavit deponed by the victim or witnesses or investigating officer showing that there is any threat. - The Applicant's counsel further rejoined that the Applicant has $16.$ stated in paragraph 2 of his supporting affidavit that he is a resident of Kaggo Zone, Mbuya 1 Parish, Nakawa Division. That it is manifest that the Applicant is still in the custody of his parents and a school going student. That by virtue of his father's employment, he is a resident of that area in Kinawataka Police Barracks. Counsel praved that the Applicant is granted bail to enable him resume school under the supervision of his parents, uncle and brother.

Issue: Whether the Applicant is entitled to be granted bail.

## **Court's consideration**

Article 23 (6) of the Constitution of the Republic of Uganda $17.$ provides for release of an accused person on bail and clause $6$ (c) in particular provides for mandatory release on bail. Article 23 (6) (a) and $(c)$ state that:

"Where a person is arrested in respect of a criminal offence-

- a) 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; - b) ……………………………………………………………………………………………… - c) in the case of an offence triable only by the High Court, if that person has been remanded in custody for one hundred and eighty days before the case is committed to the High Court. that person shall be released on bail on such conditions as the court considers reasonable."

The above cited provision of the Constitution has been reiterated 18. in Paragraph 10 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, No. 8 of 2022, which provides thus:

> "(1) Where an offence is triable only by the High Court, if a person has been remanded in custody in respect of that offence for one hundred and eighty days before the case is committed to the High Court, that person shall be released on bail on such conditions as the court considers reasonable.

> (2) In the case of a person who has been on remand for one hundred and eighty days in accordance with article 23 (6) (c) of

> > 9

the Constitution, the Magistrate's Court shall immediately refer the file to the High Court.

(3) For the avoidance of doubt, mandatory release on bail for offences triable by the High Court under article 23 (6) (c) of the Constitution shall be granted only by the High Court."

- The essence of the law regarding bail in the criminal justice 19. system is to ensure that an accused person attends court for his or her trial whenever required to do so, while he or she is not in custody. It is also important that while considering whether or not to grant bail to an accused person, the court hearing the bail application should always be mindful of societal norms and aspirations as well as the accused's presumption of innocence stipulated under Article 28 (3) (a) of the Constitution of the Republic of Uganda, 1995 and the circumstances of each case. Section 14 of the Trial on Indictment Act, Cap. 23, further vests this court with power to release an accused person on bail at any stage of the proceedings, on taking from him or her a recognizance consisting of a bond, with or without sureties. - The Applicant in the instant case clearly deponed in his $20.$ supporting affidavit to the application and reiterated in his submissions that he was remanded on 16th August, 2022 and that to-date he has not been committed to this court for trial. That means the Applicant has spent about one year and ten months in prison without being committed to this court. In that regards the Applicant qualifies for mandatory release on bail. In the case of Yassin v. Uganda, High

Court Criminal Miscellaneous Application No. 4 of 2016, Justice Stephen Mubiru emphasized the need to lean in favour of the liberty of the accused person as long as the interests of justice will not be prejudiced.

I have had the opportunity of carefully perusing and analyzing $21.$ the charge sheet in Criminal Case No. AA 70/2022 dated 11th August, 2022, under which the accused in the instant application is charged. The particulars of the offence reads as follows:

> "CHELENGAT FRED DURING THE MONTH OF JANUARY 2022 AT JINJA-MISINDYE, GOMA DIVISION IN MUKONO DISTRICT PERFORMED SEXUAL ACT WITH NANTAMU SANYU ELIZABETH A GIRL AGED 07 YEARS OLD"

- Considering the nature of the offence with which the Applicant is 22. charged, the difference between the duration he is alleged to have committed the offence and the period of his arrest, the prosecution has taken too long in its investigations in order to commit the accused to the High Court. Furthermore, the Respondent has not indicated anywhere in its response whether there is any possibility of committing the Applicant to this court for trial in the near future. - I have also noted that Criminal case No. 70 of 2022 from which $23.$ this application arises is one of the cases that have been due for committal to the High Court but no steps have been taken by the Respondent to ensure that the Applicant is committed. The file is

among those that were forwarded to this court by the Magistrate's Court on 4th August, 2023 for further management.

- Therefore, keeping the Applicant who is a school-going person $24.$ in prison custody indefinitely without the possibility of his committal or trial will be prejudicial to him and will adversely affect his personal life in the long run especially in the event that he is not proved guilty of the alleged offence. By attaching a copy of his national identity card and the introductory letter from his area Local Council 1 chairperson to his application, the Applicant has discharged the onus placed on him to prove that he has a fixed place of abode within the jurisdiction of this honourable court. It is clear from the Applicant's pleading that at the time of his arrest, he was still under the custody of his parents. - This court has taken judicial notice of the fact that the places of $25.$ residence indicated in the national identity card and birth certificate are not conclusive proof of the current place of residence of a person. There is freedom of movement within Uganda and Ugandan citizens are free to move and settle in any area of their choice within the country. Therefore, the current place of residence may not be the same place of residence of a person at the time of registering for the national identity card. - Therefore, this court is convinced that the Applicant's $26.$ whereabouts can easily be traced through his sureties presented in court especially the 1st and 2nd sureties who are his biological parents, with whom he was staying and who will have direct influence,

supervision and control over him as he continues with his education and appears in court when required to do so. In my judgment, all the sureties presented are substantial and will preside over the Applicant considering that they are all older than him and are closely related to him. Furthermore, the Respondent did not raise any objections against the sureties.

However, the role of sureties should be noted. It is stated in $27.$ Halsbury's Laws of England 4th Edition Vol II page 112 - 113 para 166 thus:

> "The effect of granting bail is not to set the defendant free, but to release him from the custody of the law and to entrust him to the custody of his sureties, who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of the law, and he will then be imprisoned, unless he obtains fresh bail. A surety who believes that the principal is likely to break the condition as to his appearance may have him arrested by a constable. A contract by the Defendant or someone else to indemnify a surety against liability under his recognizance is illegal."

As to the gravity of the offence and severity of the charge against 28. the Applicant, an accused person is not barred by any law from applying to be released on bail. The provisions of the Constitution of the Republic of Uganda, 1995 as amended, the Trial on Indictments Act, Cap 23 and the Bail Guidelines of 2022 cited above clearly give

this court the discretion to grant or deny bail in capital offences in instances where the accused person has clocked the mandatory remand period of 180 days.

- Pursuant to the foregoing analysis, I find merit in this application 29. and hereby grant the Applicant bail on the following terms: - (a) the Applicant shall pay cash bond of UGX. 4,000,000/=; - (b) each surety is bonded in the sum of UGX. $8,000,000/$ = **not cash**; - (c) the Applicant shall report to the Deputy Registrar of the High Court of Uganda at Mukono once every month with effect from 13th June, 2024, till the final disposal of the main criminal case;

(d) each party shall bear their own costs of this application.

I so rule and order accordingly.

This ruling is delivered this day of MAY, 2024 by

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In the presence of:

- (1) Counsel Ayub Musubo holding brief for Counsel Halid Salim from M/s Halid Kwerit & Co. Advocates, for the Applicant; - (2) Counsel Nanyonga Josephine, a Senior State Attorney from the Office of the Director of Public Prosecutions, for the Respondent; - (3) Mr. Chelengat Fred, the Applicant; - (4) Ms. Pauline Nakavuma, the Court Clerk.