Katanga v Uganda (Miscellaneous Application 93 of 2024) [2024] UGHCCRD 41 (21 May 2024)

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **CRIMINAL DIVISION MISCELLEANEOUS APPLICATION NO.093 OF 2024** ARISING FROM CRIMINAL SESSION CASE NO.100 OF 2024 MOLLY KATANGA APPLICANT

### **VERSUS**

**UGANDA**

#### RESPONDENT

### **BEFORE HON: JUSTICE ISAAC MUWATA**

### **RULING**

This is a second bail application filed by the applicant/accused before this court. The first bail application vide Misc. Application No.052 of 2024 was dismissed on the grounds that the applicant had not proved grave illness and that it was in the interests of justice that the trial be expeditiously handled since the main matter had already been fixed for hearing

The second application is premised on the ground that there has been a material change in the circumstances with regard to the applicant's health. It is submitted by learned counsel for the applicant that the applicant's health condition cannot be managed by the prison authorities as indicated by the medical report from the prison facility attached to the application and signed by a one Dr. Kisambu James showing that the management of her condition of multiple breast masses is beyond the capacity of the prisons health services.

It is further argued by learned counsel for the applicant that the new medical report dated 15<sup>th</sup> April, 2024 from the prison authorities presents a substantial change in the circumstances of the applicant from the time

1 | Page

the first application was denied with regard to the applicant's health that warrants this courts consideration. It is their contention that the applicant's health has now been certified by the prison authorities as grave illness that cannot be managed by the prisons facilities. The applicant also reiterated other grounds made in the first application which I will not repeat herein again.

In response, it was argued by the respondent that a second application for bail can only be made in limited situations where there is a material change in the circumstances that led to the rejection of the first bail application. They cited the **Indian Supreme Court Case of Kalyan Chandra Sarkar Vs Rajesh Rajan A. I. R 2004** quoted with approval in the case of **Criminal Misc. Application No.0074 of 2023 Opiyo** Simon Peter & Anor V Uganda (High Court) to support their argument.

It is further argued by the respondent that the issue of grave illness was well traversed in the first bail application and the inclusion of the phrase "is beyond the capacity of the prison health services" in the medical report is a mere cosmetic change since the particular condition of multiple breast masses is not a new development as it was extensively considered in the earlier report filed in court.

### Consideration

I have carefully considered the arguments made by both parties with regard to the question of new facts presented by the applicant to warrant her release on bail.

From the onset, I note that an accused person has a right to make successive applications for the grant of bail as many times as possible,

$2$ | Page

however, the second or subsequent bail applications to the same court shall lie only on a fresh ground or new fact which did not exist at the time the first application was made or where there has been a material change in the circumstances that led to the rejection of the first application.

Such circumstances must have come to light after refusal of bail, and also include other circumstances which have changed since the unsuccessful bail application was lodged. It should be noted that this change in circumstance sought to be relied on must be sufficiently different in character from that presented at the earlier unsuccessful bail application.

In the Indian Supreme Court Case of Kalyan Chandra Sarkar Vs **Rajesh Rajan A. I. R 2004** guoted with approval in the case of **Criminal** Misc. Application No.0074 of 2023 Opiyo Simon Peter & Anor V Uganda it was held that while entertaining such subsequent bail applications, the court has a duty to consider the reasons and grounds on which the earlier bail application was rejected and what are the fresh grounds are. It must be a ground warranting evaluation and consideration to take a view different from the one taken in the earlier bail application. There must be a change in a fact, situation or in law which requires the earlier view to be interfered with. The court further noted that without a change in circumstances, the subsequent bail application would be deemed to be seeking review of the earlier unsuccessful application.

In the above cited case, the court further noted that successive bail applications are maintainable but there has to be a material change in the fact situation and not mere cosmetic change.

Therefore, where an applicant seeks to rely on fresh or new facts, which has come to the fore since the first, or previous application, the court

3 | Page

must be satisfied that such fact is indeed new and must not constitute simply a reshuffling of old evidence.

Furthermore, the purpose of adducing a fresh or new fact is not to address problems encountered in the previous application or to fill gaps of previously presented evidence. The evidence must be considered in conjunction with all facts placed before court in the previous application and not separately.

In this particular application, the applicant is charged with the murder of her husband, in the earlier unsuccessful application the applicant adduced various medical reports indicating that her health condition warrants her release on bail. The court after a careful consideration of the medical reports concluded that the applicant had failed to prove that her condition would not be handled by the prison authorities. The observations in the medical report dated April 15<sup>th</sup> 2024 are largely the same as those presented in the earlier medical reports save for the observation that her condition of multiple breast masses which is stated to be beyond the capacity of the prison health services.

There is no new ground of grave illness or ailment raised by the applicant and the mere stating that her condition of multiple breast masses is beyond prison cannot constitute a fresh ground. The matter was already considered in the previous application and considering the same would be tantamount to reviewing of the decision of the unsuccessful application, even if this court retains the discretion to grant or to not grant bail even in such circumstances.

It is also important to emphasise that in handling the issue of exceptional circumstances, the court should put in perspective all circumstances

4|Page

relating to the matter like the likelihood to abscond, the ability to interfere with witnesses, likelihood of delay in disposing of the main case. The question of exceptional circumstances cannot be considered in isolation of all other factors. One such factor is the stage of the case. It has been submitted by the respondent that there has already been disclosure of the material evidence the prosecution seeks to rely on with the details of all the prosecution witnesses. The case is already fixed for hearing.

Accordingly, the application for bail is dismissed on the basis that the circumstances of the applicant in custody have not changed and the matter is ready for hearing.

I so find **JUDGE**

21/05/2024