Kakooza v Director of Public Prosecution (Criminal Miscellaneous Application 176 of 2023) [2025] UGHCCRD 4 (21 February 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **CRIMINAL MISC. APPL. No. 176 of 2023**

**(High Court Session Case No 769 of 2023)**

**KAKOOZA EDWARD ::::::::::::::: APPLICANT**

*Versus*

**DIRECTORATE OF**

**PUBLIC PROSECUTIONS ::::::::::::::::: RESPONDENT**

#### **BEFORE: HON. MR. JUSTICE MICHAEL ELUBU**

## **RULING**

This application is commenced under Articles 23 (6) (a) of **the Constitution of The Republic of Uganda**; Sections 14 (1) of the **Trial on Indictments Act** and Rule 2 of **The Judicature (Criminal Procedure) (Applications) Rules**.

The applicant, **Kakooza Edward,** seeks an order of release on bail pending the determination and hearing of his case.

The grounds on which this application is based are set out in the Notice of Motion and particularised in an attached affidavit in support deposed by the applicant.

It is stated that **Kakooza Edward** was arrested and charged with the offence of Aggravated Robbery c/ss 285 and 286 (2) of **the Penal Code Act.** He was subsequently remanded. He adds that he is innocent of the charge and was surprised to be arrested for an offence that he did not commit. That following complaints he made, the Director of Public Prosecutions called for his file but it was never forwarded by the police. He states that it is in the interest of justice that he is released on bail and that he will abide by all and any conditions set by the court.

The respondent has not filed an affidavit in reply nor favoured this court with submissions.

### **Determination**

Firstly, the applicant named the Directorate of Public Prosecutions as the respondent in this matter. The parties in criminal proceedings are set by law under Art 250 (4) of **the Constitution of the Republic of Uganda** which stipulates that,

# **(4) In the title of any criminal proceedings, the prosecution shall be designated by the word "Uganda".**

Consequently, an application for bail is a criminal proceeding and the respondent should have been designated, as provided above, by the word "Uganda". Naming the Directorate of Public Prosecutions as the respondent, which is what the applicant did in this case, is unlawful. The question now is whether it is also fatal and should render this application incompetent.

In my view, it is clear that the applicant, who is representing himself, assumed that since the Office of the DPP is the prosecutor, it would also be the proper party as respondent. He may not, as a lay person, be schooled in naming the proper parties regarding pleadings in criminal cases. It should be considered a bona fide mistake on his part.

Under Article 120 of **the Constitution**, it is indeed part of the mandate of the DPP to institute the type of criminal proceedings that the applicant faces. For that reason, the DPP represents the respondent in bail applications arising from such criminal proceedings.

Under civil law procedure, where a party names the wrong person or entity, or uses the wrong name for the right party in the pleadings, then the court may cure the anomaly by directing that those pleadings be amended. The wrong name is struck out and substituted with the correct name (see **Gaso Transport Services (Bus) Ltd vs Obene (1990-1994) E. A 88; J B Kohli and Others v Bachulal Popatlal [1964] 1 EA 219).** This will enable the court to deal with the merits of the case rather be distracted by fresh proceedings and long wound out applications for amendment.

The Supreme Court has also observed in *Re Christine Namatovu Tebajjukira [1992 – 93] HCB 85* that,

> *The administration of justice should normally require that the substance of disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights.*

Art 126 (2) (e) of **the Constitution** directs that in adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, apply the principles that substantive justice shall be administered without undue regard to technicalities.

In view of the above it would serve the interest of justice in this matter that the misnaming of the respondent should not render this application incompetent. This court shall cure the mistake by striking out the Directorate of Public Prosecution (as the respondent) and replace it with the designation 'Uganda' as it should properly be.

That said, bail is defined as the temporary release of an accused person after providing security for future appearance in court on such conditions as the court considers reasonable (see Guideline 4 of **The Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022).**

Bail is a recognisance between the accused and the Court that the accused person will be in Court whenever required. It allows an accused person to avoid pre-trial detention and attend court from home. The court therefore remains seized of jurisdiction over the accused throughout and for that reason can alter the conditions, or even cancel the bail where reason for such action arises.

As rightly stated by the applicant, he enjoys a presumption of innocence. In principle the right to apply for bail stems from that presumption, that before the culpability or otherwise of an accused has been determined, and specifically because at that pre-trial stage he is assumed to be innocent, he can for good reason be admitted to bail.

It is now settled that the court is clothed with the discretion whether or not to grant bail. It was held in **Constitutional Ref No. 20 of 2005, Uganda vs Col (Rtd) Dr Kiiza Besigye** that under Article 23 (6) (a) of the Constitution the accused is entitled to apply for bail.

As held in **R vs Board of Education [1990] 2 KB 165** when a court has judicial discretion, it is exercised by Court when it considers all that is before it and reaches a decision without taking into account any reason that is not a legal one. The Court acts within the rules of reason, justice and law, within the limits and the objects intended by a particular legislation.

The relevant provisions of the legislation governing a release on bail by the High Court, within which court exercises its discretion, are Sections 14 and 15 of **the Trial on Indictments Act (TIA).** These are the sections that regulate release on bail for offences only triable by the High Court including Aggravated Robbery, the offence the applicant is charged with.

Section 15 (1) of **TIA** stipulates,

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 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.

S.15 (3) (c) of the **TIA** states,

(3) 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 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.

From the wording of the provisions above, and as rightly pointed out by the applicant, the law does not make proof of exceptional circumstances mandatory. The success of an application of this nature is not therefore contingent on proof of exceptional circumstances.

Even then, there are no exceptional circumstances named in the application. However, in the exercise of its judicial discretion when determining a bail application, the Court takes into account several other legal factors including whether or not the applicant will abscond. The overriding factor remains a determination whether the applicant will be available to attend trial whenever required in Court. Section 15 (4) of the **TIA** specifies that the applicant must show that he will not abscond.

There are other considerations are laid out in Guideline 13 of **The Bail Guidelines** (supra)**.** They include the gravity and nature of the of the offence; the stage of the proceedings; whether the applicant has a fixed place of abode; and whether the applicant has sufficient sureties who undertake to ensure compliance with the conditions set for bail.

The applicant in the instant case has not indicated anywhere in his application what assurances he gives that he will not abscond. There is no proof of fixed abode attached nor has he named any sureties. Additionally, the applicant faces a serious charge, Aggravated Robbery, which carries a maximum sentence of death. He has also already been committed to the High Court for trial.

While bail should not be denied mechanically, the court is under a duty to ensure that before it makes a grant there are circumstances that warrant a release and a certainty that the applicant will re-appear for trial. In this case, I am not persuaded that the applicant has proved that he will attend court whenever required to do so.

This therefore is not a matter that merits a release on bail. In the result, the application fails and is dismissed.

**…………………………………….**

**Michael Elubu Judge**

**21.02.2025**