Kizza and Others v Uganda (H.C.Miscellaneous Application 5 of 2023) [2023] UGHCCRD 24 (3 May 2023)

The Republic of Uganda

In The High Court of Uganda in Soroti

Miscellaneous Application No. 0005 of 2023

(Arising out from Criminal Case No. AA-021 of 2022)

1. Kizza John Justine 10 2. Adakun Moses **.....................................** 3. Ariko Patrick 4. Okello Simon Peter 5. Eyagu Wilson

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Uganda :::::::::::::::::::::::::::::::::::

Versus

Before: Hon. Justice Dr Henry Peter Adonyo

## **Ruling on Bail**

This is an application brought by way of notice of motion under Articles 20(2) 23(6)(a) & 28 (1) & 3(a) of the Constitution of Uganda 1995, Sections 14(1) of the 20 Trial on Indictment Act Cap. 23 and section 17(2) of the Judicature Act for orders that the applicants who are currently remanded for the offence of murder be release pending trial and consequential directions be issued to regulate the bail.

The grounds of the application as set out in the application and the supporting affidavit which briefly state that the applicants have a constitutional right to apply 25 for bail and are presumed innocent till proven otherwise.


$\mathsf{S}$

Further, it is stated that the applicants have been in detention on various dates $\mathsf{S}$ from the 20<sup>th</sup> day of September 2022 and to date are yet to be committed to the High Court for trial.

It is further deposed that the applicants have substantial sureties who have been informed and have undertaken to abide by all or any of the bail terms and conditions that may be set by this Honourable Court.

And finally, that the applicants have fixed places of abode within the jurisdiction of this honourable court.

The respondent was dully served with the application as proved by the affidavit of service on record but did not make any reply to this application which is thus considered ex parte.

The applicants are represented by M/s Engwau & Co. Advocates whose submissions on behalf of the applicant has read and dully considered.

The law on bail pending trial is found under Article 28(3)(a) of the Constitution provides that "...every person who is charged with a criminal offence shall— (a) be presumed to be innocent until proved guilty or until that person has pleaded guilty."

Also Article 23(6)(a) of the Constitution provides 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;"

As this court is the High court of Uganda, the specific law relating its powers to consider bail applications is found under Section 14(1) of the Trial on Indictment Act provides thus;

- "The High Court may at any stage in the proceedings release the accused person $\mathsf{S}$ on bail, that is to say, on taking from him or her a recognisance 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 at such a time as is named in the bond." - Further Section 15(1) of the Trial on Indictment Act provides that 10 "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." 15

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.

Furthermore, Section 15(4) provides that "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 abode within the jurisdiction of the court or is ordinarily resident outside Uganda; 25

(b) whether the accused has sound sureties within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail;

(c) whether the accused has on a previous occasion 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." $\mathsf{S}$

$25$

While Article 23 (6) (a) of the Constitution gives an accused person the right to apply for bail, however, the power to grant of bail is discretionary to court.

In this application, the 1<sup>st</sup> applicant has stated in his affidavit in support that he is a person of advanced age and that his health is continuing to deteriorate due to his HIV+ status. A copy of his national ID is attached indicating that he was born on 27.09.1969 making him almost 54 years of age. He also attached copies of his medical forms to prove his HIV status. He further states that he has a fixed place of abode at Apolin village, Kamod Parish, Bugondo Sub-county, Kasilo County, in Serere District. An introductory letter is attached to support his application and it states that he is indeed a true resident of this area. A copy of his National ID further shows that he is a resident of the stated area.

As for sureties, Applicant 1 has presented 2 persons, namely, Chemao Charles who is his brother and a resident of Moruapesur Ward, Eastern Division in Soroti City and Sande Simon Peter, his clan chairperson who is a resident of Nananga A village, Kanyangan Parish, Kateta Sub-county in Serere district.

The $2<sup>nd</sup>$ applicant states in his affidavit that he is of advanced age and his health is deteriorating due to prison conditions. He provides a copy of his national ID which indicates that he was born on the 28.06.1968 making him approximately 55 years old. He also states that he has a fixed place of abode at Apolin village, Kamod Parish, Bugondo Sub-county Kasilo County in Serere District. An introductory letter is attached to his application which states that he is a true resident of this area. A copy of his National ID further shows that he is a true resident of the above area.

He presented two sureties, namely, Opolot Daniel who is his friend and a resident $\mathsf{S}$ of Serere Township, Kakus ward, Serere Town Council in Serere District and Odeke Augustine his brother, who is a resident of Aimo village, Kakus parish, Serere/Olio sub-county in Serere district.

The 3<sup>rd</sup> applicant states in his affidavit that he is of advanced age with deteriorating health conditions including diabetes and high blood pressure and 10 he attached copies of his medical forms to this effect. He also states that he has a fixed place of abode in Oculura village, Kamod parish, Bugondo sub-county, Kasilo county in Serere district and this is proved by an introductory letter by the LC1.

He presented three sureties who are all his brothers, namely, Angiriki James Deo 15 resident of Mulondo village, Aarapoo parish, Labor sub-county in Serere district, Ojulong Geoffrey and Olupot Max resident of Oculura village, Kamod parish, Bugondo sub-county in Serere district.

The 4<sup>th</sup> applicant states that he has a fixed place of abode in Oculura village, Kamod parish, Bugondo sub-county, Kasilo county in Serere district. A copy of his 20 National ID further shows that he is a resident of the above area.

He presented two sureties, namely Edwarat James, his uncle who is a resident of Oculura village, Kamod parish, Bugondo sub-county in Serere district and Ebunyu Joseph, his father and who is a resident of Musozi village, Kadungulu parish, Kadungulu sub-county in Serere district.

$-25$

The 5<sup>th</sup> applicant stated in his application that he has a fixed place of abode in Oculura village, Kamod parish, Bugondo sub-county, Kasilo county in Serere district. A copy of his National ID further shows that he is a resident of the above area.

He presented two sureties namely Ongodia Deogracious his friend and resident $\mathsf{S}$ of Oculura village, Kamod parish, Bugondo sub-county in Serere district and Odonga Hasan his brother resident of Apolin village, Kamod Parish, Bugondo Subcounty Kasilo County in Serere District.

For all the sureties presented by all the applicants, introductory letters from the LC1s of their areas and copies of their national IDs were attached to the 10 application. Counsel for the applicants submitted that he had explained to the sureties their obligations and duties and the consequences of failure to ensure that the accused persons attend court and that they have all understood these obligations.

With no evidence to the contrary from the respondent, I would find that the 15 applicants have all proved that they have fixed places of abode. Also given the close relationship between the applicants and their sureties, I would further find that the sureties presented to this court are substantial.

Furthermore, the 1<sup>st</sup> to 3<sup>rd</sup> applicants have also proved that they were of advanced age as they are above 50 years of age in line with the holding in the 20 case of Dr Alex Kamugisha vs Uganda [2007] UGHCCRD 3 where advanced age was held to be any age above 50 years.

While the offence of murder carries a maximum sentence of death, it still remains the law that an accused is presumed innocent until proven guilty.

On the basis of the evidence put forward, court is satisfied that this is a case 25 where it should exercise its discretion and grant bail to the applicant especially since the applicants have not yet been committed for trial and there is no known date when their trial shall begin.


Further, I am more convinced that the applicants are more likely to attend their $\mathsf{S}$ trial than abscond given the fact of their known places of abode and the level of authority the sureties exercise over each of them.

Consequently, I would grant bail to each of the applicants upon the following conditions;

1) Each of the applicant is granted a Cash bail of Shs. 1,000,000/- $10$

2) Each of the Sureties is bound in the sum of Shs. 2,000,000/- not cash.

3) Each of the Applicant is to report to the Registrar of this Court once a month on the first Monday of each month with effect from 01/06/2023 and thereafter on the 1<sup>st</sup> Monday of each month until otherwise directed by court.

4) Any failure to observe any of the above terms shall render automatic 15 cancellation of the bail with each and or any of the applicants being subjected to an arrest warrant and detained in custody till completion of their trial or as otherwise ordered by this court.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

3<sup>rd</sup> May 2023

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