Ndyamwijuka v Uganda (Criminal Miscellaneous Application 52 of 1992) [1992] UGHC 73 (7 September 1992)

Full Case Text

| | | | Ois | |----------|---------------------------------|-------------------------------------|------------| | | | PUBLIC OF UGANDA | | | | IN THJ hlc.il CCLiiT | OF UGANDA AT | KAMPALA | | | MIoC, | 52 CAIMIiIAL /APPLICATION NO, | 1992 OF | | | DUGn'hDA | CT, RO^D | | | | iiCj^RT. NDYAhHlJUkA | | APPLICANT | | UGANDA | | V E R S U S | RESPONDENT | | BEFORE: | Hono urab1 Nrs> Tfoe e | e ju . Justice ^jr M. | | | RJJ^ LIN | G, | | |

This is an applic cion, for release on bail brought by the applicant/**accused** -Robert Ikljw.r-.i juka, Police Constable who is accused of\* murder contrary to S. 18J of the Penal Code allegedly committed ii» 1935. His application was supported **by an-**affidavit dated 17/8/92 allegedly sworn by him\* but at ,£he bearing he said that no s not given a chance to read through affidavit before signing Vieac-; the reason for some of the mistakes which were observed by counsel for th. state\* The applicant appeared, in croon and state was represented by Hr\* Vicent Wagona, State attorney.

*• J ,* The applicant in or:.»cd court that he was a police •Castable No-»1^5^7 and. although he was a Mukiga he had a house at Mowlem -Zone Bukoto 1 Parish Nakawa Division^ he has stayed 'in the area for more ti....n 8 years and he intended to stay in the area until the case is heard and finalised- He has never been aec.used of any other offence since he was born \* - He was elected secretary for information for his village in **Miio yciar|fc** RC ©lections. Ho submitted the following names of people who can testify as to his behaviour namely' Mr; Ben'Kasule, Muluka Chief Bukoto 1 Parish, Mr. James Dibya Gbmbojola Chief Nakawa end O. C. Police Station BukotO|

He further submits d th.\t he was married with *k* children but t "Iasi year his wife and the youngest child died. '. .... ...> He **is** responsble for tho 3 remaining children, who are being assisted at the moment by relatives and friends. He has to pay rent for the house he is sce/ing in which is supposed to have been paid for by Uganda Police ... as the offence he is alleged to have committed happened why, he was duty. His father died Jast month so he cannot o.s.-ist him to look after the **children\***

He submitted that he wi<s suflering from ulcers and he needs to feed at least 4 tie.es a day but this is not possible in prison. He exhibited medical forms where he was prescribed medicine in Juno 1992 but he has so far managed to get 2 panadols only. -\*3.cn b~il was granted to him in 19&-) was because of ulcers.,

Ba submitted that n He wt.s grunted bail in 1984 he complied with bail conditions up >o the time he was committed to High Court 10/3/^992 and ho ;? re..dy to fulfil conditions given to him by court if bail is granted. The bail bond issued in

He produced 2 peulc who were willing to stand **surety** for him\* Namely Mr. hugisha staying at Ndeeba, employed **Uy** Uganda Hailways Corporation as Techinician, he is a **brother to** the applicant. The ;>oco?:d one is Benedicto Kasule **Assistant** Council Agent. Bukoto 1 Parish City Council Kampala, He is a businessman with j shop at Bukoto.

Mr. Wagona, for th- t< ted opposed the application on the ground that the accused person who has already been committed for his trial, he now knows t.• . evidence against him which migjit **work** on .tyis mind to ab.\*;c , 6 1'rom trial\* Counsel raised some ^discrepancy relating ;-c th . affidavit of the applicant and his submission.

**I** did not find it nccecs'17 to comment on this submission as the applicant explained the.t ae not given a chance to read through the affidavit which makes the affidavit defective but court will rely on the applicant's testimony before court. Counsel said that he was not aware of any d-'te when the case would be heard. He submitted that the case had delayed because the Police file had gone missing.

The applicant in re .-ly submitted that at the time he was comrnitted'he was informed'that a hearing date would be fixed but it is now 6 months, he has been in the cells and he does not know what is happening. He submitted that getting witnesses might take 9 years'As'it took them to get the evidence. ,He said that he never committd the crime they are alleging and he does not know whet is in the police-file.. . He clarified that he has 3 chi].dr n and he. is suffering from ulcers, and he. was once ^diuitted at Mulago Hospital. He isaid that the miscc*he* : brut Dhe number of children and failure to mention sicknots in his affidavit was because he never read it.

Although the applicant did not inform court, this **application** was brought .under S. 14A of the Trail on Indictments (Am^dment) Act 19^5-t the Act which emended the Trial on Indictments Decree of 1971? The main grounds on which his application is based as can be gathered from his submission is that his case has taken along time. He was first arrested in 1983 and released **on bail in** 198^. In March, 1992 he v;-s rearrested and committed to High Court for trial. He- has now been waiting for/the ias^ 6 months. The second ground is that he has got ulcers. From the law cited above, the applicant since he is being charged with murder he is supposed to prove that exceptional circumstances exist justfying his release on bail and that

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he will not abscond when rvlcased on bail. S. i4a.(2) says that exceptional circuitst.r.ic ,s shall mean any of the following;-

(a) grave illness certified by a medical Board constituted by the Chief Medical Officer and constisting of not less than two medic<;l practitioners of being incapable of adequate medical treatment while accused is in custody (b) remand in custody for a period of fifteen months or more unless ths accused has already been committed to the High Court for trial or •••»«••••••11

The applicant produced the medicgl forms where he has **^een** getting treatment in prison, one was dated June another One August, 1992\* He s; id that he did not get the **medicine** prescribed, only *2.* pane,dole -ere given to **him.** He did not produce a certificate of gr< ve illness certified by MedigaX Board, as is required under the law, I did not think that he was aware of this roruirraent. But **I** am inclined to believe the applicant's story thet he may not be able to get adequate medical treatment for his ulcers in the prison\* .as he stated proper feeding is part of the treatment for ulcers\*

In view of the fact that the applicant was granted bail on the same, ground in 1984 and the illness still persists **it** would not be fair to say he will got adequate medical treatment in prison now. I am convinced that the applicant has proved this ground to the satisfaction of the court.

The second ground' is that the case has taken along time to prosecute, unfortunately this ground is not covered by S. 14A(2)» This is a jM-rjo,. who is arrested and is released oh bail and sc ys on bail for more than 8 years he is again arrested held on r..;u^\_iu .-...siting his trial, emd^he==t-r-ial and the trial does no:; commerce immediately• This is a matter which could be looked . t in by the legislature.

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The court has to Cv.-sidcr whether the applicant is likely to abscond if released on sail. The accused in this case has proved that he has a fixed place of abode in Bukoto Kampala. *ff* He presented 2 sureties whom I ha.d the opportunity to view in court and 1 think they aio men of substance and they will make sure that the accused will turn-up for his trial. The accused informed court that he was released on **bail in** .1984 and he complied with >.11 the bail conditions until 1992 when he was committed to High Court for trial and his bail lapsed. The state, c..»uu.ul^ not bring up any evidence **to** show that the applicant h.'d failed to comply with the **previous** bail conditions. The i.pplic nt also informed court that there were no other charges .endlr.,, ^goinst hirn. The applicant has satisfied all these co,-., itieas.

The State Counsel's uu in objection was that the applicant is likely to abscond if h. i.^ released on bail because he-knows the evidence going to be adduced c.gainst him. Taking into **account** the applicant's behaviour uh~n he was granted bail and the fact that he is convinced that he never committed the offence his chances ox absconding are remote, he should be given the benefit of doubt.

I must.say that the paramount consideration when granting bail is to make sure tlu.t the- accused will turn up for his **trial. Th.** courts.tab. into consideration that out law presumes every accused innocent until proved guilty• I agree with what was sce.^d by Justice Mukasa Kfkonyogo in the case of Robert Kltaliko. jig,i.ada Misc, No>l6 o£ that there is no rule of I. \*./ wnich precludes this court from

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granting bail to an accused uft^r his/pommitted and after his case had been given *u* chf-ini'cc d~te for hearing

Another consideration when granting bail is to make sure that the accused does not commit the same crime again. The applicant in this ci;. >c\* has been on bail for a period of 8 years and has not committ.id any other crime, this is a point in his favour.

For the reasons c.lrc^.dy stated I find that the applicant has »:itisfied the requirbients ol the Trial on Indictments Decree as amended for release on bv.il and the applicant is accordingly j granted bail on the following conditions;-

(l) The applicant should deposit with this court cash, in the sum of 300,000/- (three hundred thousand shillings)

(c) The two sureties namely Denon Mugisha and Benedicto Kasule to sign a bond of sta. 3,000, OOO/«= (three million) each not cash.

(3/ The applicant to r." ort to the assistant Registrar (crime) High Court of Uganda every Friday staring 18/9/92 for extortion cf his bail until final disposal of this case or until other order from this court to the contrary.

JUDGE *7/9/92*