Mukisa v Uganda (Criminal Miscellaneous Application 5 of 2021) [2023] UGHCCRD 38 (2 August 2023)

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO **CRIMINAL MISCELLANEOUS APPLICATION NO. 05 OF 2021** (ARISING FROM MUKONO CHIEF MAGISTRATE'S COURT CRIMINAL CASE NO. AA. 122 OF 2018)

**MUKISA BAKER \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\***

## **VERSUS**

<table>

UGANDA ::::::::::::::::::::::::::::::::::::

## BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

## **RULING**

- 1. This is an application for bail pending trial brought by Notice of Motion under the provisions of Article 23 (6) of the Constitution of the Republic of Uganda, 1995 as amended, seeking for an order of release on bail pending the hearing of a criminal case. The Applicant is awaiting trial for the offence of aggravated defilement c/s 129 (3) (4) (a) of the Penal Code Act, Cap. 120 and he was committed for trial before the High Court. - 2. The grounds of the application are contained in the Notice of Motion amplified by the Applicant's supporting affidavit and and supplementary affidavit deponed on 4<sup>th</sup> January, 2021 and the 6<sup>th</sup> June, 2023 filed on 1<sup>st</sup> February, 2021 and 6<sup>th</sup> June, 2023. The grounds are as follows that:

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- (a) the Applicant's trial may take long to be concluded due to Covid-19 and the high number of inmates committed to this court in the end causing a miscarriage of justice; - (b) the Applicant has a fixed place of abode at Lweza Village, Nama Sub-County, Mukono District; - (c) the Applicant has sureties who are citizens of Uganda and ready to represent him once bail is granted; - (d) the Applicant has 9 biological children to whom he was the bread winner and that presently these children are scattered among relatives who are also financially constrained to provide for basic needs for these children; - (e)the Applicant has been on remand since 2015 to-date in Luzira Government Prison for over 8 years and that his liberty is cut off yet he is not yet proved guilty; - (f) the DPP had entered a nolle prosequi on 20<sup>th</sup> December, 2018 and the Applicant was re-arrested the same day and taken into police custody and subsequently charged with the same offence, appeared at the Chief Magistrate's Court of Mukono and remanded back to prison where he has been in custody to-date: - (g) the Applicant was committed to this court for trial but he is uncertain as to when his trial will commence; and

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- (h) the Applicant is willing and ready to abide by conditions that shall be given by this honourable court in the even that he is released on bail. - 3. The Respondent opposed the application by an affidavit in reply sworn by Naluzze Aisha Batala, the Assistant DPP from the Office of the Director of Public Prosecutions. The Respondent's contentions are that: - (a) the accused is charged with a grave offence of aggravated defilement contrary to section 129 $(3)$ $(4)$ $(a)$ of the Penal Code Act, Cap. 120, which attracts a maximum sentence of death upon conviction: - (b) it is in the interest of justice that the Applicant is not granted bail as he has not proved to this court any exceptional circumstances that warrant him to be released from custody: - (c) the accused person is likely to interfere with the prosecution witnesses if this application is granted; and - (d) the sureties presented to this court by the accused person are residents of Kyaliwajjala, Kira Town Council and Wabigalo Parish, Makindye in Wakiso and Kampala Districts, respectively, which are not within the jurisdiction of this court. - 4. When the application came up for hearing on 26<sup>th</sup> July, 2023, the Applicant was represented by Counsel Namata Edith from Justice

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Centres- Uganda. The Respondent was represented by Counsel Nanyonga Josephine who held brief for Counsel Nanteza Victoria Anne, a State Attorney from the Office of the Director of Public Prosecutions. Both parties filed their written submissions which are considered hereunder.

- 5. The Applicant's counsel contended that as per the copy of the indictment, the Applicant has been in custody for over 8 years and he has never been committed for trial in the High Court and it is not known when investigation will conclude. - 6. It is trite law that a person whose liberty has been deprived by imprisonment before trial or when not serving a sentence is free to apply for bail. That however, the discretion to grant bail lies with court, which has to take all interests of justice of the parties and the society as a whole into account. It was argued that the issue of bail is derived from the presumption of innocence which is enshrined in article 28 (3) (a) of the Constitution. - 7. That a bail applicant must not be deprived of his or her freedom unnecessarily or as a mere punishment where he or she has not been proved guilty by a competent court of law. Counsel referred to the case of Col. (Rtd) Dr. Kiiza Besigye v. Uganda, Criminal Application No. 0020 of 2016. That the Applicant herein is charged with aggravated defilement which is bailable by this honourable court.

- 8. Furthermore, the Applicant's counsel submitted that the Applicant has a fixed place of abode being a resident of Namumira-Anthony, Mukono Municipality in Mukono District within the jurisdiction of this honourable court. That this fact was also reiterated by the Applicant under paragraph 8 of the supplementary supporting affidavit. That the Applicant operates his business within Uganda hence he will not abscond. - 9. The Applicant's counsel averred that while the offence of aggravated defilement is serious, the Applicant has no previous record and is presumed innocent until proven guilty as he avers in his application. Counsel referred to the East African case of Panjur v. Republic [1973] EA 282. - During the hearing of the application, the Applicant's counsel $10.$ presented to this court 3 sureties to stand for the Applicant who are his biological sisters and brother-in-law, namely: - (a) Ms. Nabakoza Rehema, 44 years old, the Applicant's biological sister, a Maintenance Officer working at Vienna College, resident of Kyaliwajjala "A" Cell, Kyaliwajjala Ward, Namugongo Division, Kira Municipality, Wakiso District, with mobile telephone No. 0753 319751 / 0787 302045: - (b) Ms. Nassali Judith, 29 years old, the Applicant's biological sister, a house-wife, resident of Kyaliwajjala "A" Cell, Kyaliwajjala Ward,

Namugongo Division, Kira Municipality, Wakiso District, with mobile telephone No. 0708 354916/0771 169858;

- (c) Mr. Musema Abdul Razak, 58 years old, the Applicant's brotherin-law, working with Vienna College, Namugongo, resident of Wabigalo Central Cell, Wabigalo Ward, Makindye Division, Kampala Capital City Authority, with mobile telephone No. 0788 794447/0753 618606; - $11.$ The Applicant's counsel further stated that in the present case, the investigations are incomplete and that the Applicant shall not interfere with the investigations as it is beneficial to the Applicant to have conclusion in order to have justice. Counsel prayed that the application is allowed and the Applicant is released on a non-cash bail on favourable terms. - $12$ It was submitted for the Respondent that whereas the offence is bailable, the accused person should be denied bail since the nature of the offence is grave and attracts a maximum sentence of death. This may cause the Applicant to abscond once released on bail. That the Applicant has not furnished court with water or electricity bill or proof of ownership of the residence he occupied before being incarcerated. - $13.$ Furthermore, counsel averred that the sureties have not told court as well as the Respondent's counsel what work they do for a living or if they are permanent residents of the areas in which they reside. That the Applicant has also not proved exceptional

circumstances. The Respondent's counsel cited the case of Adriko Yunas v. Uganda, High Court Misc. Criminal Application No. 0030 of 2016. Counsel prayed that this court finds no merit in this application and instead fixes the criminal case for heading to the nearest convenient High Court session for trial.

## Issue

## Whether the Applicant is entitled to be granted bail.

$14$ Article 23 (6) (a) of the Constitution of the Republic of Uganda, 1995, provides for the right of an accused person to apply for bail. It stipulates that:

> "Where a person is arrested in respect of a criminal offence;" a) That 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."

15. As provided for in section 14 (1) of the Trial on Indictment Act, Cap. 23, the court retains the discretionary power to grant or not to grant bail. The section provides thus:

> "The High Court may at any stage in the proceedings release the accused person 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 at such a time as is named in the bond."


In the case of Foundation for Human Rights Initiative v. 16. Attorney General, S. C Constitutional Appeal No.03/2009, Katureebe, C. J (As he then was) held that:

> "When an accused person applies for bail, the court retains the discretion whether or not to grant bail to the accused person which discretion has to be exercised judiciously."

Paragraph 13 (1) of the Constitution (Bail Guidelines for Courts $17.$ of Judicature) (Practice) Directions, Legal Notice No. 8 of 2022, clearly provides for consideration of bail by courts in any bail application. It stipulates that:

"Considerations for bail

(1) The court shall consider the following in handling a bail application—

(a) the gravity of the offence;

(b) the nature of the offence;

(c) the antecedents of the applicant so far as they are known;

(d) the possibility of a 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 the 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;

$(k)$ whether the applicant has a fixed place of abode within Uganda or whether he or she is ordinarily resident outside Uganda:

(I) whether the applicant has sufficient sureties within Uganda to undertake that the applicant shall comply with the conditions of his or her bail:

$(m)$ whether the applicant has, on a 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

(o) whether the offence for which the applicant is charged involved violence."

18 To prove the Applicant's fixed place of abode, the L. C.1 letter from the area Chairpersons introducing the Applicant as a resident of Namumira-Anthony, Mukono Municipality in Mukono District and his national identity card were admitted in evidence. I find that the Applicant has satisfied this court that he has a fixed place of abode within the jurisdiction of this court.

19. The sureties presented by the Applicant's counsel have been well identified before this court during hearing of the application. Being

much younger than the Applicant by 14 years, I find the 2<sup>nd</sup> surety not substantial as she is unlikely to have influence or control over the Applicant. However, this court finds that the 1<sup>st</sup> and 3<sup>rd</sup> sureties substantial sureties because they are the Applicant's close family members being his elder biological sister and brother-in-law and are older than him. In my judgment, these two elder sureties will be able to have supervisory power over the Applicant and compel him to appear before court as and when required to do so.

This court hereby reminds the sureties of their roles which are $20.$ summarized in Halsbury's Laws of England 4<sup>th</sup> Edition Vol II page 112 -113 para 166 as follows:

"The effect of granting bail is not to set the defendant free, but to release him from the custody of the law and to entrust him to the custody of his sureties, who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of the law, and he will then be imprisoned, unless he obtains fresh bail. A surety who believes that the principal is likely to break the condition as to his appearance may have him arrested by a constable. A contract by the Defendant or someone else to indemnify a surety against liability under his recognizance is illegal."

$21$ The Applicant has been in prison on remand since 2015, that is about 8 years and it is uncertain when the criminal case will be heard.

This court has found merit in this application which is allowed and bail granted on the following terms:

- (a) the Applicant shall pay cash bond of UGX. $4,000,000/$ =; - (b) each surety is bonded in the sum of UGX. 8,000,000/= NOT CASH; - (c) the Applicant shall report to the Deputy Registrar of the High Court at Mukono once every month with effect from 1<sup>st</sup> September, 2023 till the disposal of the main criminal case; - (d) each party shall bear their own costs of this application.

I so rule and order accordingly.<br>This ruling is delivered this ....................................

FLORENCE NAKACHWA **JUDGE.**

In the presence of:

- (1) Counsel Kabuye Lawrence from M/s Lukwago & Co Advocates holding brief for Namata Edith from Justice Centres- Uganda, for the Applicant; - (2) Counsel Nanyonga Josephine from the Office of Director of Public Prosecutions, for the Respondent; - (3) Mr. Mukisa Baker, the Applicant; - (4) Ms. Pauline Nakavuma, the Court Clerk.