Kalisa and Another v Uganda (Criminal Miscellaneous Application 244 of 2019) [2022] UGHCCRD 160 (14 July 2022)

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

## **CRIMINAL MISC. APPL. No. 244 of 2019**

**(Arising out of Criminal Case No 042 of 2019)**

## **1. KALISA JOHN**

**2. KYAZZE CHRISTOPHER ::::::::::::::: APPLICANT**

*Versus*

**UGANDA ::::::::::::::::: RESPONDENT**

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

# **RULING**

This application is commenced under Articles 23 (6) (a), 28 (3) and 44 (c) of **the Constitution of The Republic of Uganda**; Sections 14 and 15 of **the Trial on Indictment Act**; and Sections 14 and 15 of the **Judicature Act;** Section 50 (b) of **The Criminal Procedure Code Act.**

The applicants, **KALISA JOHN** and **KYAZZE CHRISTOPHER,** seek orders that:

- 1. the order of the learned chief magistrate's court of Wakiso cancelling the applicants bail be revised and set aside - 2. the applicants bail be reinstated as per the terms already ordered and set by this Hon Court in Misc Appln No 184 of 2021.

The grounds on which the applicant has based his prayers are set out in the Notice of Motion and elaborated in an affidavit in support deposed by one Kiribwa Simon Peter, an advocate of the High Court of Uganda.

It is stated that on the 21st of September 2021 the applicants were charged on three counts of the offence of Aggravated Robbery c/ss 285 and 286 (2) of **the Penal Code Act.** They were thereafter remanded in Kitalya. They filed an application for bail before the High Court which was granted on the 10th of November 2021. That the applicants met all their bail terms including reporting to the Court once every month. That on the 29th of June 2022 they appeared before the Chief Magistrates Court of Wakiso for committal to the High Court for trial. That upon committal the learned trial magistrate cancelled the bail by signing the remand warrants sending the applicants for detention on remand at Uganda Government Prison, Kigo. Though there was no order cancelling their bail, the act of signing remand warrants amounted to cancellation of bail. The applicants state that the learned trial magistrate acted illegally as Section 168 (4) of **the Magistrates Court Act**, the provision under which she ostensibly acted, was declared unconstitutional by the Constitutional Court and lacks the force of law. Additionally, the learned trial magistrate did not give the applicants an opportunity to be heard before she took the decision to cancel their bail.

### **Determination**

This court did not have the benefit of either the respondent's affidavit or submissions in reply. On the other hand, the applicant's submissions are on record but will not be reproduced here. I have nevertheless studied and will refer to them in the determination of the issues here.

It is true that on the 21st of September, 2021, both applicants were produced before the Chief magistrates Court Wakiso and charged with three counts of the offence of Aggravated Robbery c/ss 285 and 286 (2) of **the Penal Code Act**. They were remanded immediately thereafter. That on the 14th of Dec 2021, this Court granted them a release on bail, and they have complied with all the conditions set, including reporting to the Deputy Registrar of the High Court Criminal Division once every month. Criminal summons were issued for the applicants by the Chief Magistrate's Court of Wakiso for

the 29th of June 2022. When they appeared, both applicants were committed to the High Court for trial. That is all the record of the court proceedings for that day indicates.

While the record does not make orders for remand following committal, remand warrants for both applicants were issued and sealed by the Court and both remanded in Uganda Government Prison, Kigo. There is therefore an order of Court to Kigo prison directing the Superintendent of the prison to remand the applicants.

This application for reinstatement of bail is made following that order to remand the applicants.

This Court is aware that Section 168 (4) of the Magistrates Court Act stipulates that if a person committed for trial by the High Court is on bail, without prejudice to his right to apply to the High Court for bail, the bail shall lapse, and the magistrate shall remand him in custody pending trial.

The Constitutional Court of Uganda in **Hon Sam Kuteesa & Ors vs A-G Const Ref 56 of 2011** extensively considered the above provision of the MCA and directed as follows:

We hold that pursuant to **Article 274** of the Constitution, **section 168 (4)** of the Magistrate's Courts Act must be construed in such a way as to provide that:

- *(i) Bail granted, by a court of competent jurisdiction, to a person arrested in connection of a criminal case does not automatically lapse by reason only of the fact of that person being committed to the High Court for trial.* - *(ii) Subject to being competently seized of jurisdiction under the law, the court committing an accused person to the High Court for trial, has power derived from Article 23 (6) (a) of the Constitution to maintain bail already granted or to grant bail to an accused person, or to cancel bail for sufficient reason, after hearing the parties concerned on the matter.*

The above holding is binding on this Court.

This Court notes however that this application was commenced under Section 50 of **the Criminal Procedure Code Act**. It has been has held that The High Court has no powers to consider matters regarding bail under its Revisional powers saved under Section 50 of **the Criminal Procedure Code Act** (see **Kiiza Besigye vs Ug M. A. 18 of 2022**).

The foregoing notwithstanding, and as can be seen from the Constitutional Court's holding above, the chief magistrates court of Wakiso clearly acted in error when it cancelled the bail of the applicants upon committal to the high court, without a hearing.

This court is however seized with the jurisdiction to provide a remedy in the matter as the court order remanding the applicants resulted in the infringement of their right to liberty, and a right to be heard, following that earlier release on bail, and it cannot be left to stand.

In the result, the order remanding the applicants is hereby set aside. Bail is reinstated on the terms earlier set by this Court on the 14th of December 2021.

Dated at Kampala this …………..day of July 2022

**………………………………**

**Michael Elubu**

**Judge**