Gwandya v Uganda (Criminal Miscellaneous Application 28 of 2024) [2024] UGHC 1013 (18 October 2024)
Full Case Text
## THE REPUBLIC OF UGANDA
### IN THE HIGH COURT OF UGANDA AT KIBOGA
# CRIMINAL MISCELLANEOUS APPLICATION NO.028 OF 2024
## (Arising from Criminal Case No.0217 of 2024)
GWADYA HAMUZA:::::::::::::::::::::::::::::::::::
#### **VERSUS**
UGANDA:::::::::::::::::::::::::::::::::::
#### BEFORE HON. MR. JUSTICE KAREMANI JAMSON. K
#### **RULING**
This is an application brought by Notice of Motion under Magistrates Court Act, Judicature Act, Trial on Indictment Act Cap 23, The Judicature (Criminal Procedure) Applications Rules SI 13-8 & the 1995 Constitution
It seeks the orders that
- a) The applicant be released on bail. - b) Reasonable terms and conditions of bail be set.
The application is supported by the affidavit of the applicant Gwadya Hamuza which sets out the grounds of the application which are that:
- a) The offence with which the applicant is charged is bailable and this court has the jurisdiction and discretion to grant the applicant bail. - b) The applicant has a fixed place of abode within the jurisdiction of this court. - c) The applicant has substantial sureties who understand their obligation to this honorable court as sureties of the applicant. - d) The applicant is a law abiding citizen of Uganda and will not abscond from the jurisdiction of court since inquiries are complete in this case. - e) The applicant will abide by and adhere to the orders of court regarding his bail conditions. - f) It is in the interest of justice that the applicant is granted bail.
The respondent filed an affidavit in reply deponed by Wakiku Charles opposing this application.
**Representation**
$\frac{1}{1000}$
The applicant was represented by Mr Kafuko Nocolas Paul while the respondent was represented by Ms Joan Gaswaga a State Attorney with the Office of the Director of Public Prosecutions Kiboga.
## The law on bail
## Article 23 (6) (a) of the Constitution of Uganda provides thus;
"Where a person is arrested in respect of a criminal offence-
(a) the person is entitled to apply to court to be released on bail and the court may grant that person bail on such conditions as the court considers reasonable;"
# Section 14(1) of the Trial on Indictment Act provides thus;
"The High Court may at any stage in the proceedings release the accused on bail, that is to say on taking from him or her a recognizance 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 a date and such time as is named in the bond"
## 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 no prove the satisfaction of 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"
# Section 15(3) of the above mentioned Act provides thus;
"In this section the "exceptional circumstances" mean any of the following:
(a) grave illness certified by a medical officer of the prison or other institution or place 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."
# Section 15 (4) of the same Act provides;
"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 place of abode within the jurisdiction of the court or ordinarily resident outside Uganda.
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(b) whether the accused has sound sureties within the jurisdiction to undertake that the accused shall comply with the conditions of his bail;
(c) whether the accused has a previous accession when released on bail failed to comply with the conditions of his or her bail; and
(d) whether there are other charges pending against the accused;
The Constitutional (Bail Guidelines for courts of Judicature) Practice Directions 2022 No.5 provides the principles to be considered in an application for bail
## Decision of court
It is trite law that whereas an accused person has a right to apply for bail the court reserves the discretion to grant the same. The current position of the law is that proof of exceptional circumstances is no longer mandatory. See the case of Dr. Kiiza Besigye vs Uganda Constitutional Reference No.20 of 2005 and Foundation for Human Rights Initiatives Vs Attorney General Constitutional Petition No.20 of 2006.
I however must emphasize that the exceptional circumstances have not been done away with. An applicant to whom they are available and cites them stand an advantage.
The above position is informed by the fact that courts have to take into consideration the purpose for which they were put there. To convince court into exercising its discretion in their favor where they exist.
According to Guide line 4 of the Constitution (Bail Guidelines for courts of Judicature) Practice **Direction 2022** an application for bail court has to take into account the following;
- (a) gravity of the offence charged, - (b) the nature of the offence charged, - (c) the antecedents as of the applicant so far as they are known, - (d) the possibility of substantial delay of the trial, - (e) the applicant's age physical and mental condition - (f) the likelihood of the applicant to attend court - (g) the stage of the proceedings, - (h) the likelihood of applicant to commit an offence while on bail, - (i) the likelihood of the applicant interfering with witnesses, - (i) the safety of the applicant, the community and complainants,
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- (k) whether the applicant has a fixed place of abode within Uganda or whether he or she is ordinarily a resident outside Uganda. - (|) Whether the applicant has sufficient sureties within Uganda to undertake that the applicant comply shall comply with the conditions of his or her bail,
(m)Whether the applicant has on previous occasion when released on bail failed to comply with his or her bail terms,
(n) whether there are any other charges pending against the applicant; or
(0) whether the offence for which the applicant is charged involves violence.
In the instant case the accused person is charged with the offence of Aggravated Robbery Contrary to 285 and 286 (2) of the Penal Code Act which attracts a maximum sentence of death. This offence is however bailable by this court.
The applicant in this case presented two sureties:
The first one being **Namusoke Amiina** who is said to be a cousin sister of the applicant. She presented a letter of introduction of Chairman Local Council One of Kisenyi Local Council One, Kakiri Ward, Kakiri Town Council in Wakiso District. She also presented a national identity card indicating that he is a resident of Budongo village, Namutumba Central ward, Namutumba Town Council Busiki County in Namutumba District.
The 2<sup>nd</sup> surety was **Mbidde Godfry** an uncle to the applicant who presented a letter of introduction of Local Council One of Kisenyi Local Council One, Kakiri Ward, Kakiri Town Council in Wakiso District. He also presented a National identity card showing that he is a resident of Kisenyi Village, Kakiri Ward, Kakiri Town Council Busiro County in Wakiso District.
The addresses of the 1<sup>st</sup> surety on the documents presented do not tally, whereas the letter of introduction indicates Wakiso district the national identity cards indicates Namutumba District. This creates doubt in as to whether she has a permanent place of abode or not.
The second surety despite having documents with matching addresses he doesn't look substantial.
I have taken into consideration the particulars of the sureties presented as well as the nature of the offence charged.
It is my finding that whereas this court has jurisdiction and discretion to grant bail am not convinced that these sureties presented are substantial.
I accordingly decline to exercise the discretion in favor of the accused and decline to release the accused on bail. The accused is further remanded.
$\mathcal{L}$ Maun $\overline{m}$
Karemani Jamson. K
Judge.
$\mathcal{L}^{\mathcal{L}}$
$\mathcal{L}^{\mathcal{A}}$
18.10.2024