Odongtoo & 6 Others v Uganda (Criminal Miscellaneous Application 46 of 2022) [2024] UGHC 14 (31 January 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

## CRIMINAL MISCELLANEOUS APPLICATION NO. 046 OF 2022

$\mathsf{S}$

(ARISING FROM DPP CASE NO. GULU-CO-1548-2022, POLICE CASE NO. OMORO CRB 403/2021)

| | 15 A1: ODONGTOO RICHARD | |----|-------------------------------| | | A2: OKELLO SAMUEL | | | A3: OPIYO NELSON | | | A4: KIDEGA PETER | | | A5: OUMA WILLIAM alias MAGEZI | | 20 | A6: OTTO ALBERT | | | A7: OJOK SAMUEL | | | |

#### **VERSUS**

25 **UGANDA...............** ............. RESPONDENT

### BEFORE: HON. MR. JUSTICE GEORGE OKELLO

# **RULING**

This is an omnibus application for bail. The Applicants are indicted with one count of murder contrary to section 188 and 189 of the Penal Code 35 Act Cap 120 (hereafter, PCA), four counts of attempted murder contrary to section 204 of the PCA, and three counts of assault occasioning actual bodily harm contrary to section 204 of the PCA. The offences are alleged to have been committed on 12th September, 2021, at Alwii Ocega Village, in Omoro District. The Applicants have since been committed to the High Court and await their trial. 40

Hutolu.

The Application is premised on several grounds namely, the Applicants $\mathsf{S}$ have fixed place of abode at Alwii Village in Onyona Parish, Ongako Subcounty, and at Pida-Loro Village, Kal Parish, Ongako Sub-County, all within Omoro District. The Applicants have substantial sureties; exceptional circumstances exist in the case of A1, A4, and A6; the accused $10$ persons and the family of the deceased have a subsisting land dispute pending in the High Court on appeal; the investigations are complete and the accused persons have been committed for trial; and it is fair, reasonable, just and equitable that the Applicants are released on bail to enable them prepare for their defences, and also to be able to take care of 15 their families. The Application is supported by the affidavits of each Applicant, each deposing to facts peculiar to himself. The Applicants also lodged affidavits in rejoinder, while others swore supplementary affidavits.

The Application is opposed. The grounds of opposition are contained in the affidavit of D/CPL Abongu Emmanuel, an Investigating Officer attached to Omoro Police Station. He deposes that, given the gravity of the charges, the Applicants are likely to abscond if released on bail; the Applicants are likely to interfere with witnesses for the Prosecution since they know the prosecution witnesses who are resident in the same village; that because of the murder committed, the relatives of the deceased retaliated against 25 the family of the Applicants and have since been charged with aggravated robbery, malicious damage to property and assault occasioning actual

Hartolin

$\mathcal{L}$

bodily harm, so, releasing the Applicants on bail would spur more violence $\mathsf{S}$ between the two sides; that the Applicants have not presented exceptional circumstances; that the sureties are not substantial; that the Applicants and the proposed sureties have not proved that they own property capable of being forfeited to the State if the Applicants were to abscond if released 10 on bail.

As stated, the Applicants rejoined to the deposition of the Respondent denying the claims, and furnishing more information. I shall consider the relevant aspects of their depositions in my analysis, where necessary.

During the hearing, learned counsel Mr. Julius Ojok appeared for the Applicants while Ms. Sarah Amony, Chief State Attorney, represented the Respondent. On the day the sureties were examined in the court house, Mr. Akena Kenneth Fred held brief for Mr. Ojok. Learned counsel orally summed up the essential aspects of the case, especially on the issues of exceptional circumstances and the period the Applicants have so far spent on pre-trial remand. The State Counsel opted for oral submission and likewise Mr. Akena rejoined orally. I have considered both submission and I am grateful to counsel.

Given the omnibus nature of the Application, a practice courts deprecate as circumstances of each Applicant for bail must be considered distinctly,

HUADR

I will ignore the procedural defect and separately consider the merit of $5$ individual circumstances of each applicant. I have noted that, whereas they plead uniform grounds, the Applicants ended up canvassing, in some respects, new grounds in their respective affidavits. The paragraphs of the affidavits which are not grounded on the Motion will be ignored.

$10$

Before considering each applicant, I seek to set out the general principles for grant of bail. Bail is temporary release of an accused person after providing security for future appearance in court on such conditions as the court considers reasonable. In considering bail application, court is guided by the Constitutional principles such as, the right of an applicant to be presumed innocent as provided for in article 28 (3) (a) of the Constitution of the Republic of Uganda, 1995; the Applicant's right to liberty as provided for in article 23 of the Constitution; the Applicant's obligation to attend trial; the discretion of court to grant bail on such terms and conditions as it considers reasonable; and the need to balance the rights of an Applicant and the interests of justice. See: Guideline 5 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022.

Other than the above principles, there are several other principles set out 25 by courts over the years. In this application, I will advert to the principles and considerations for bail, as I shall find relevant. The considerations for

$\overline{4}$

Hartodu

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bail are set out in Guidelines 13 and 14 of the Bail Guidelines. These and $\mathsf{S}$ others, have been summarized by this court in the case of **Ojok Ceasar &** 8 Others Vs. Uganda, Criminal Misc. Application No. 4 of 2023; and Opiyo Charles alias Small Vs. Uganda, Criminal Misc. Application No. 26 of 2022.

$10$

Beginning with A1, Odongtoo Richard, I find that his case rests chiefly on the grounds of old age and that he will not abscond when released on bail. He relies on the fact of having a fixed place of abode at Alwii Village, and that his sureties are substantial. A1 argues that he is 52 years old and in his view, that is an exceptional circumstance. In his affidavit, he mentions two sureties namely Lawino Lucy, a spouse, and Opiyo Brian Ojok, a Nephew. The Applicant presented a National ID although he had no letter from Local Council I Chairperson (LCI) from the area where he lived before he was arrested. The sureties presented National IDs and LC letters which were attached to A1's affidavit. On the day of hearing the Application, 20 Opiyo Brian Ojok (the proposed surety) was absent from court. Thus only one surety-Lawino Lucy was presented.

The State Counsel argued that since A1 is 52 years old, the age does not qualify under 'exceptional circumstance' for bail in capital offences. I 25 agree. Under Guideline 4 of the Bail Guidelines, "advanced age" means sixty years and above. Thus reliance on authorities where courts have held

$\mathsf{S}$

HutoQu.

that 50 years and above constitutes advanced age, with respect, is $5$ incorrect as those cases were decided before the Bail Guidelines came into being. The Guidelines, among others, helped to harmonize different approaches of different courts regarding bail considerations, the issue of advanced age being one. I therefore find that A1 is not of advanced age. $10$ The State further argued that, having not attached an LCI Letter, A1 is non-compliant. Whereas I generally agree with this submission as it is founded on Guideline 12 (b) of the Bail Guidelines, I am of the view that not attaching an LCI Letter in this case, is not fatal. This is because A1 and indeed all the Applicants, admittedly, are from the same LCI Area of Alwii and Pida Loro Villages. The State witness volunteered this 15 information, when stating that, the Applicants and the complainants and their relatives, are from the same Villages. Thus, in my opinion, given that the purpose of the LCI letter is to identify that the subject of the letter is resident within the particular LCI Area, the omission by A1 to attach the 20 LCI Letter, has not deprived court of relevant information regarding A1's ordinary residence. The other objection by the State counsel, as I understood her, was that, the second proposed surety having been absent, his substantiality cannot be spoken of. Thus the sole surety is not sufficient for bail purposes. I agree with the State submission. On his part, learned counsel for the Applicants prayed that court grants bail to 25 A1.

Harol.

In this case, although A1 is not of advanced age, in line with the authorities $\overline{5}$ of Foundation for Human Rights Initiative Vs. Attorney General, Constitutional Appeal No. 03 of 2009 (SCU); Opiyo Charles alias Small Vs. Uganda, Crim. Misc. Application No. 026 of 2022, I would have not insisted on the requirement that at least an exceptional circumstance be proved. since the age of A1 of 52, is fairly advanced, and the additional 10 consideration in his favour is that A1 looks frail. In this case, whereas the sole surety presented for A1 is substantial, in terms of Guideline 15 of the Bail Guidelines, I hold that a single surety is not sufficient in a capital offence. Thus I find that A1 has not complied with Guideline 13 (1) (l) of the Bail Guidelines which presupposes at least two sureties. This has also 15 been the practice of court. This Court, however, notes that, vide a Supplementary affidavit of A1, a one Ochora Mathew was proposed as an additional surety. The problem with the proposed surety is that he never attended court, and no reason was given.

In the circumstances, although I would have been inclined to grant A1 bail, but on account of lack of an additional substantial surety, court is not prepared to grant A1 bail.

25 Turning to A2. Okello Samuel, he said he is 33 years old. He also relies majorly on the promise not to abscond and that he has substantial sureties. He deposed that his fixed place of abode is in Alwii Village. The

HhAodm

$\overline{7}$

sureties A2 presented are, Oloya Brian, a brother and Adwonga Santo, an $\mathsf{S}$ uncle, all residents of Industrial Area. The sureties had LCI Letters and National IDs. A third surety was proposed, that is, Okwera Denis, a 20 year old, but he had no National ID and no LCI letter. A2 also did not present a copy of the National ID, thus flouting Guideline 12 (a) of the Bail Guidelines. Whereas Counsel for A2 prayed for bail, the State Counsel $10$ objected on the grounds of lack of a National ID and LCI Letter. Whereas I would have overlooked the omission to attach the LCI letter because A2 admittedly is from Alwi Village, the omission to attach a National ID is fatal because traceability of A2 would be difficult especially where required to 15 report to court. Moreover, A2 deposed that he had processed a National ID but was yet to be issued with one. There is no proof that A2 filled the requisite form issued by NIRA (National Identification and Registration Authority), to at least lend credence to his deposition. Whereas the sureties are substantial, I find no exceptional circumstances pleaded by A2 be it 20 those coming within the provision of section 15 (1) and 15 (3) of the Trial on Indictments Act Cap 23, and Guideline 14 (2) of the Bail guidelines, or those falling outside those mentioned, which this court could still consider, as held in the case of **Foundation for Human Rights Initiative** Vs. Attorney General, Constitutional Appeal No. 03 of 2009 (SCU) 25 (supra).

Hydram.

$\mathsf{S}$ In the circumstances, given the gravity of the allegations against A2 and yet there is no exceptional circumstance proved, and given the fact that it would be extremely difficult to trace A2 if he were to abscond once out on bail, I hold that A2 has not complied with the requirements for bail. It has been held that the most important consideration for grant of bail is whether the accused will turn up for his trial once released and whether $10$ he will not interfere in any way with evidence/ witnesses. See: **Foundation** for Human Rights Initiative Vs. Attorney General, Constitutional Appeal No. 03 of 2009 (SCU). Indeed in the case of Attorney General Vs. Joseph Tumushabe, Const. Appeal No. 03 of 2005, Justice Joseph Mulenga, JSC (RIP) held thus: 15

"In the case of a person accused of a criminal offence applying for release on bail pending trial, the court's principal consideration is whether such release is likely to prejudice the pending trial."

$25$

For the reasons advanced, I decline A2's prayer to be released on bail.

Regarding A3 Opiyo Nelson, he deposed that he is 34 years old. He presented National ID. He also presented Adong Agnes, a sister, as surety. A3 promised to present Ojok Francis, an elder brother, who, however, for

no reason, was absent from court during the bail hearing. The LC 1 letters show these sureties are residents of Industrial Area. Their National IDs are

Hudoon. $5$ on record. A third surety was presented, that is, Opiyo Denis Lumumba. He, however, stated that his LCI Chairman is Adong Sandra and she is in charge of Industrial Area. However, Opiyo Denis Lumumba presented a letter written by a one Opiyo George Opira of Pida Village. These contradictions put the credibility of Opiyo Denis Lumumba in serious $10$ doubt. A3 has also not presented any exceptional ground for consideration. Given that the second surety did not attend court and the third surety contradicted himself as to his proper area of abode, I find that A3 has not presented substantial sureties. Thus given the seriousness of the offence of murder, an exceptional circumstance ought to have at least been presented and the sureties should have been substantial. Therefore, 15 in agreement with the State, I decline A3's request for bail.

A4 Kidega Peter, a 66 year old applicant relies on the exceptional ground of old age. He presented two sureties namely, Kilama Thomas aged 50 years, a brother. The surety had LCI letter and a National ID. He also owns 20 property in Industrial Area as per a sale Agreement. He is resident within Industrial area. The Second surety is Adoch Caroline, a spouse of A4. Both sureties attach letters written in December 2022. At the time of being presented as sureties, Adoch Caroline (Carolina as per the National ID) presented a letter from LCI Chairman of Pida Village, Ongako Sub-County, 25 while Kilama Thomas presented a letter written by Kal Centre Village, Kal Parish, Ongako Sub-County where he is said to also own property. Kilama

Hlutolin.

$\mathsf{S}$ Thomas was introduced by counsel as being a resident of Industrial Area, although he has land in Ongako also. When asked by court, Mr. Kilama did not know the LCI area where he is resident. Adoch Caroline also stated she is a resident of Industrial Area. She, however, presented National ID and LCI Letter written by Chairman of Pida Village. The surety, however, $10$ claims her LCI Chairperson is Adong Sandra. I find that, the minor contradictions about the specific areas of abode of the sureties notwithstanding, A4 qualifies for bail. It however, seems the sureties live in more than one residential area, one being where they hail from, and the other being areas situate within Gulu City where they appear to ordinarily 15 reside. I hold that, the discrepancies aside, the two sureties generally meet the requirements of Guideline 15 (1) and (2) of the Bail Guidelines. Furthermore, given that A4 and the complainants are from the same village, as stated by the State witness, A4's traceability would not be a challenge if required by court at any one time. A4 also relies on ill-health 20 as an additional ground for bail. He deposed that he suffers from thoraco vertebral spondylitis, with deformity, and clavicular bone deformity. This averment is confirmed by a medical report from the Medical Superintendent of Murchison Bay Hospital, Kampala. It has not been controverted.

In the circumstances, on account of his age of 66 and ill-health, and since the sureties are substantial, I am inclined to grant A4 Kidega Peter non-

Hurolu.

cash bail of shs. 10,000,000 and each surety is bonded to court in the sum $\mathsf{S}$ of shs. 5,000,000, not cash.

A5 Ouma William alias Magezi, aged 40 years did not present a National ID, saying his got burnt in the house and he has never processed a replacement. He has a fixed place of abode within Alwii Ocega Village. He presented Onekggiu Samuel, a 31 year old Nephew. Onekggiu told court $10$ he resides in Lwajatek, Koro and his Chairperson LCI is Mr. Obbo. He is a business man in Layibi Centre under Bilal Metal Fabrication. The second surety was Onen Walter. He is an elder brother of A5. He resides both in Industrial Area and Koro. He is a peasant farmer and a Mason. Both 15 sureties have National IDs and LCI letters. A5 also relies on ill-health. It is said he suffers from Biopolar Affective Disorder with occasional episodes of psychotic attacks (mild in nature). The medical report from Medical Superintendent Murchison Bay Hospital, Kampala, indicates that A5 is on treatment and is being monitored. In my view, the lack of National ID by A5 weakens his request for bail. He did not furnish proof that he reported the destruction of his National ID to Police. He did not obtain a document from NIRA confirming he has ever owned a National ID and its Number. That confirmation is always readily available and can be availed at short notice from NIRA offices. Regarding his ill-health, my view is that the mental condition A5 suffers from, is capable of being managed while in prison custody. The condition would, in my view, be better managed from within the Prison Medical facility in conjunction with a Mental Hospital.

Happelm

- $\mathsf{S}$ Releasing A5 in his current mental condition would not be in his best or even public interest. A5 is likely to miss the due attention while outside the prison facility. He could also become a risk to his community. This court has not been presented with a case where A5 is sought to be released for the purposes of accessing specialized medical treatment in a Mental Hospital which the Prison medical facility is incapable of arranging. In my 10 opinion, should A5's condition get to a level where he is unable to stand his trial, court will deal with it as per the provision of the Trial on Indictments Act. - 15 In conclusion on A5, the allegations of murder against A5 being serious and given that his condition is not that which requires specialized attention outside prison remand facilities, I decline A5's prayer to be released on bail. - A6 Otto Albert, aged 52 years, presented a National ID. He relies on old 20 age, arguing it is an exceptional circumstance. He also argues he will not abscond if released on bail, and that his sureties are substantial. A6 presented two sureties, namely, Amono Christine Ayaa, aged 42, a sister; and Komagum-Irwot Robert, an elder brother to A6. The latter proposed 25 surety says he has a house in Pida Loro and another house in Industrial Area. He is, however, ordinarily resident in Pida Loro, and his LCI Chairman is a one Opiyo Geoffrey. Aside from the age, A6 relies on a

HUADDIN

$\mathsf{S}$ medical report from Murchison Bay Hospital showing he suffers from acute chronic gastritis, coupled with headache, dizziness, and general body weakness, for the past fifteen years.

The State opposed bail for A6, arguing, his condition is capable of being managed while in prison from within its facility. Counsel for A6 prayed $10$ that his client be released on bail.

In my opinion, whereas the age of A6 does not qualify as "advanced age" as per the Bail Guidelines which fixes advanced age at 60 years and above, 15 when the condition of A6 is considered, especially that he has been suffering from ill-health for the past 15 years, owing that the prison treatment thus far, has not resulted in any improvement, I think A6 has met the threshold for grant of bail. Given that he has presented substantial sureties; I hereby grant A6 non-cash bail shs. 10,000,000. The two sureties are each bonded in the sum of shs. 5,000,000, not cash. 20

A7 Ojok Samuel, an 18 year old applicant presented no National ID and no LCI letter. The Affidavit of A7 was not signed and bears no date. Learned Counsel for A7 did not seek to correct the anomaly in the affidavit, while in court. A7 nevertheless, presented Ajok Agnes, an aunt/ mother, and Atto Grace, a Grandmother, as sureties. A third surety was proposed, that is, a one Okumu Solomon. However, Okumu was absent in the court Hall.

Husson

Given the lack of a National ID and lack of exceptional circumstances, and $\mathsf{S}$ yet the charge of murder is serious, I decline A7's request to be granted bail.

In conclusion, the Application succeeds in respect of A4 Kidega Peter, and A6 Otto Albert, only. The Application fails in respect of the rest of the Applicants.

$10$

Before I take leave of this matter, I wish to comment on the reliance by all the Applicants on family responsibility as a ground for consideration for grant of bail. All the Applicants deposed that they are married men with 15 children, and have family responsibilities. They averred that they need to be out of prison to be able to look after their families. I appreciate the Applicants' concerns. However, the Supreme Court of Uganda held in the case of Henry Bamutura Vs. Uganda, Misc. Application No. 19 of 2019 (per Hon. Lady Justice Prof. Tibatemwa- Ekirikubinza, JSC) that, hardship, if 20 any, facing one's family, are no exceptional and unusual factors for consideration in a bail application. See also: Dominia Karanja Vs. Republic (1986) KLR 612.

Given my holdings and conclusions, I summarize my orders as follows; 25

Haro Que.

- 1. A4 Kidega Peter is hereby released on noncash bail of shs. $\mathsf{S}$ 10,000,000 and the two sureties namely, Kilama Thomas and Adoch Caroline (Carolina) are each bonded to court in the sum of shs. 5,000,000 not cash. - 10 2. A6 Otto Albert is released on non-cash bail of shs. 10,000,000 and his sureties Amono Christine Ayaa and Komagum- Irwot Robert are each bonded in the sum of shs. 5,000,000, not cash. - 3. A4 Kidega Peter, and A6 Otto Albert shall report the Deputy Registrar of this Court once a month, every last week of the month beginning February, 2024. - 4. Bail request by A1. Odongtoo Richard, A2. Okello Samuel, A3. Opiyo Nelson, A5. Ouma William alias Magezi, and A7. Ojok Samuel are hereby declined.

Delivered, dated and signed this 31st January, 2024.

WORM. 3101/2024 George Okel **JUDGE HIGH COURT**

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Ruling read in court. $\mathsf{S}$

## **Attendance**

Applicants in court.

Mr. Okot Douglas Odyek, learned Counsel, holding brief for Counsel Julius

Ojok, for the Applicants. $10$

Mr. Bangira Bashir, State Attorney for the Respondent.

Mr. Ochan Stephen, Court Clerk.

HutoDum 31/01/2024 George Okello **JUDGE HIGH COURT**