Okongu and 3 Others v Uganda (Criminal Miscellaneous Application 14 of 2024) [2024] UGHC 557 (14 June 2024)

Full Case Text

The Republic of Uganda

In the High Court of Uganda at Soroti

Criminal Miscellaneous Application No. 0014 of 2024

(Arising from Criminal Case No. AA 007 of 2023, MCB/CRB No. 016 of 2023)

1. Okongu Sam 10 2. Ocen Charles ...................................... 3. Marufa Ali 4. Ogwang Francis

Versus

Uganda ::::::::::::::::::::::::::::::::::: 15

Before: Hon. Justice Dr Henry Peter Adonyo

## **Ruling on Bail Application**

## 1. Introduction.

- The applicants Okongu Sam, Ocen Charles, Marufa Ali and Ogwang Francis 20 brought this application by way of notice of motion under Articles 20,21 (1), 23(6)(a), 28(1) & (3)(a) and Article 44(c) of the Constitution, Sections 14(1), 15 (1)(b) & (4) of the Trial on Indictment Act and Rules 2 & 4 of the Judicature (Criminal Procedure) (Applications) Rules S. I 13\_8 for orders that; - The applicants currently detained at Katakwi Government Prison on alleged 25 commission of the offence of Aggravated Robbery be released on bail pending

$\mathsf{S}$

- committal/trial to high court on such terms and conditions that this honourable $\mathsf{S}$ court deems fit and just. - 2. Grounds.

The grounds of the application as set out in the application and further detailed in the supporting affidavits sworn by each of the applicants are that the applicants were charged with the offence of aggravated robbery C/s 285 and 286 10 of the Penal Code Act and have never been committed for trial to the High Court of Uganda and are presently remanded at Katakwi Government prison, where they have remained since 17th February 2023.

That the applicants have a constitutional right to apply for bail pending trial and this honourable court has discretion to grant them bail.

That the applicants each have fixed places of aboard within the jurisdiction of this honourable court.

That the applicants have substantial and sound sureties who reside within the jurisdiction of this honourable court and will ensure that the applicants comply

with all the bail conditions set by this honourable court and who will further 20 ensure that they appear in court for trial on all days when the case is called for hearing. That there are no other pending criminal charges against the applicants, nor do the applicants have any previous criminal record.

Finally, that the applicants shall not abscond when released on bail and it would be fair and just that the application be granted.

The respondent was served with this application and an affidavit of service sworn by Akello Angela dated 18th of April 2024 proves the respondents were aware of this application, however, they did not file a reply to the same.

## 3. Representation. $\mathsf{S}$

The applicant was represented by M/s Atigo & Co. Advocates.

This application proceeded by way of written submissions which have been considered in its determination.

4. Determination.

The presumption of innocence is the primary principle for which a court may, in 10 the exercise of its discretion, release an accused person on bail pending trial as stated Article 28(3)(a) of the Constitution of the Republic of Uganda, 1995 which provides that;

Every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty or until that person has pleaded guilty.

Article 23(6)(a) of the Constitution of the Republic of Uganda provides that:

Where a person is arrested in respect of a Criminal Offence, he 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.

In their individual affidavits the applicants conceded to this Honourable Court's 20 discretion to release them on bail pending their committal and hearing of the case.

Capital offences such as aggravated robbery in this instant application are bailable; however, whether the court is inclined to exercise the discretion to grant or not is a matter dependent on the circumstances of each case.

Section 14(1) of the Trial on Indictments Act, Cap 23 provides the stance outlined in Article 23(6)(a) of the Constitution. It reinforces this Court's discretion to release an accused person, at any stage of the proceedings, on taking from him

or her a recognisance consisting of a bond, with or without sureties, for such an $5$ 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.

The Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022

Paragraph 5 of the same provide for the general principles applicable in the $10$ consideration of a bail application thus;

The court shall, in considering a bail application, be guided by the following principles as enshrined in the Constitution-

(a) the right of an applicant to be presumed innocent as provided for in article 28(3)(a) of the Constitution;

- (b) the applicant's right to liberty as provided for in article 23 of the Constitution; - (c) the applicant's obligation to attend trial;

(d) the discretion of court to grant bail on such terms and conditions as the court considers reasonable; and

- (e) the need to balance the rights of the applicant and the interests of justice. 20 Paragraph 12 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions provides for contents of a bail application thus; An application for bail shall contain the particulars of the applicant, accompanied $by-$ - (a) a copy of the applicant's national identity card, or passport or aliens 25 identification card, or employment card, or student identity card;

(b) an introduction letter from the Local Council 1 chairperson of the area where $5$ the applicant resides;

(d) expounded grounds for the application.

Section 15(1) of the Trial on Indictment Act provides thus; 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 20

However, these special circumstances have been declared by the Constitutional Court as non-mandatory.

Section $15(4)$ provides;

In considering whether or not the accused is likely to abscond, the court may take 25 into account the following factors-

(a)whether the accused has a fixed abode within the jurisdiction of the court or is $\mathsf{S}$ ordinarily resident outside Uganda;

(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.

In deciding to grant or not to grant bail to the applicant, the court is enjoined to consider the accused's demonstration that they will not abscond trial by considering the above factors, which are examined one by one.

## 15 5. Bail pending committal.

The applicants stated in their application that they have been on remand at Katakwi Government Prison since the 17th of February 2023.

The mandatory bail that the applicants seeks is articulated by Article 23(6)(c) of the Constitution which stipulates that;

Where a person is arrested in respect of a criminal offence triable only by the High 20 Court, if that person has been remanded in custody for one hundred and eighty days before the case is committed to the High Court, that person shall be released on bail on such conditions as the court considers reasonable.

The same is pronounced by paragraph 10(1) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions which states that;

Where an offence is triable only by the High Court, if a person has been remanded in custody in respect of that offence for one hundred and eighty days before the

case is committed to the High Court, that person shall be released on bail on such $\mathsf{S}$ conditions as the court considers reasonable.

According to the file, the applicants appeared in court on 17th of February 2023 for communication of charges, and the accused were thereafter remanded until the present, which is evidently over a year, meaning that the applicants have

been on remand without committal to this court thus making them eligible for 10 the mandatory bail since it is over the 180 days as prescribed by the Constitution. However, the law take as fact that such an accused can only be released on bail

on such conditions as the court considers reasonable while taking into account the gravity of the offence brought against such an accused.

6. Fixed place of abode. 15

Okongu Sam under paragraph 5 of his affidavit in support stated that he has a fixed place of abode at Omagara village, Angodingod Parish, Angodingod Subcounty, Toroma County in Katakwi district where he resides with his wife, children and other dependants. A copy of his voter location slip and LC1 letter were attached as AA1 to prove this. The letter of introduction from the LC1 Omagara village dated 24th of January 2024 indicates that he is a true resident of his area

and his voter location slip though expired states his parish as Angodingodi.

Marufa Ali under paragraph 3 of his affidavit in support states that he has a fixed place of abode at Aburasiru village, Aroba Parish, Amolo Sub-county, Amuria county in Amuria District within the jurisdiction of this court. A copy of his 25 national ID and LC1 letter were attached as BB1 to prove this. The letter of introduction from the LC1 Aburasiro village dated 24th of January 2024 indicates that he is a true resident of his area. The copy of his national ID indicates his residence as Aroba village, Golokwara parish, Wera sub county, in Amuria. Ogwang Francis under paragraph 3 of his affidavit in support states that he has a $\mathsf{S}$ fixed place of abode at Adodoi Village, Ocal Parish, Abarillela Sub county, Amuria County in Amuria District. A copy of his national ID and LC1 letter were attached as CC1 to prove this. The letter of introduction from the LC1 Adodoi village dated 23rd of January 2024 indicates that Ogwang Francis is a true resident of his area and the copy of his national ID indicates his residence as Adodoi village. 10

The essence of a fixed place of abode is traceability of an accused in the event of abscondment or whenever necessary. Section 15(4) (a) of the Trial on Indictment Act provides that in considering whether an accused is likely to abscond court may take into consideration whether the applicant has a fixed place of abode

15 within the jurisdiction of the court.

This position of the law is amplified by paragraph 13(k) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions.

I also note that while the Law does not define the phrase 'fixed place of abode', what is important is that the fixed place of abode must ordinarily be within the

jurisdiction of the court which is considering the bail application. 20

Where an applicant fails to prove this as per section 15(1) of the TIA, then the court may deny him bail.

On the basis of the evidence put forward I find that three of the applicants that is, Okongu Sam, Marufa Ali and Ogwang Francis have proved their fixed place of abode.

7. Sureties.

$5$

a) Okongu Sam presented two sureties that is:

Okiror Charles aged 60 his brother, a retired administrator currently engaged in peasant farming and Akerikol Justine aged 32 all resident of Omagara village, Angodingod Parish, Angodingod Sub-county, Toroma County in Katakwi district.

- Annexure AA2 and AA3 are letters of introduction from the LC1 Omagara village 10 dated 18th of January 2024 in respect of Okiror Charles and Akerikol Justine and they indicate that they are true residents of Omagara village. Copies of their national IDs also marked collectively as AA2 and AA3 with their letters of introduction indicate that they residents of Omagara village, Angodingod Parish, - Angodingod Sub-county, Toroma County in Katakwi district. These National IDs 15 also confirm the age of the sureties as 60 and 32 respectively which makes Okiror older than Okongu Sam whose voters slip indicated his date of birth as 15th of June 1990 (34 years old) and Akerikol his junior. - b) Marufa Ali presented the following sureties: - Marufa Ali his uncle aged 50 years and his grandmother Apolot Saida aged 78 20 years both resident of Aburasiru village, Aroba Parish, Amolo Sub-county, Amuria county in Amuria District where they carry out peasant farming.

BB2 and BB3 collectively are letters of introduction and copies of the sureties' national IDs. The letters of introduction dated 18th of January 2024 indicates that

Marufa and Apolot are true residents of Aburasiru village, Aroba Parish, Amolo 25 Sub-county, Amuria county in Amuria District.

Just like the applicant Marufa Ali, his sureties' national IDs indicate their residence as Aroba village, Golokwara parish, Wera sub county, in Amuria. This

IDs also confirm the sureties ages as 50 and 78 which senior to the applicant's 26 $5$ vears.

I have noted that the introduction letter Marufa Ali the applicant and his sureties Marufa Ali and Apolot Saida and his national IDs indicate varying residencies however the difference within the two documents does not negate the fact that

- they come from Aburasiru village as proven by the letters of introduction. Having 10 presented an introduction letter from the local council 1 chairperson of the area where they are ordinarily resident, the deviation in the details is not fatal to this application. - c) Ogwang Francis presented these sureties; - Atim Jennifer his grandmother aged 64 and Odeke Daniel his brother aged 51 15 both resident of Adodoi Village, Ocal Parish, Abarillela Sub county, Amuria County in Amuria District and engaged in peasant farming.

CC2 and CC3 collectively are letters of introduction and copies of the sureties' national IDs. The letters of introduction by the LC1 Adodoi village dated 18th of January 2024 indicate that Atim Jennifer and Odeke Daniel are true residents of 20 Adodoi Village, Ocal Parish, Abarillela Sub county, Amuria County in Amuria District. The copies of their national IDs indicate them as residents of Adodoi village and further confirm their ages as 64 and 51 which is senior to Ogwang's 27 years of age.

Counsel for the applicants submitted that she labored to explain to the sureties 25 their obligations and consequences of failure to ensure that the accused persons attend court and they understood the same, she prayed this court finds them substantial.

- A "surety" is defined under Paragraph 4 of the Constitution (Bail Guidelines for $\mathsf{S}$ Courts of Judicature) Practice Directions to mean a person who undertakes to ensure that the applicant will appear in court and abide by the bail conditions and who furnishes security which may be forfeited to State if the applicant fails to appear in court. - Furthermore, Section 15 (4)(b) of the Trial on Indictment Act and paragraph 13(1) 10 (I) of the Constitution (Bail Guidelines for Courts of Judicature) Practice Directions provides that in considering whether an accused is likely to abscond the court shall consider whether the accused has sound sureties within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail. - Paragraph 15 of the Constitution (Bail Guidelines for Courts of Judicature) 15 (Practice) Directions provides for determinants on the suitability of a surety thus;

(1) When considering the suitability of a surety, the court shall take into account the following factors—

(a) the age of the surety;

(b) work and residence address of the surety; 20

(d) relationship to the accused person; and

(e) any other factor as the court may deem fit.

(2) Subject to sub-paragraph (1) the proposed surety shall provide documentary proof including— 25

(a) a copy of his or her national identity card, passport or aliens identification card;

(b) an introduction letter from the Local Council 1 Chairperson of the area where $\mathsf{S}$ the surety is ordinarily resident; or

I find that the sureties have proved their identities, their connections to the three applicants Okongu Sam, Marufa Ali and Ogwang Francis and their fixed places of 10 abode.

I have also considered the age of these sureties and find that the sureties being senior to the three applicants save for Akerikol Justine who is younger than Okongu Sam, are able to utilize their familial authority over the applicants especially with regard to obeying this court orders.

I have further considered that the age gap between Akerikol and Okongu is only two years and as such they are still within the same age bracket.

I find that the sureties presented by the three applicants Okongu Sam, Marufa Ali and Ogwang Francis are substantial. The sureties herein are to ensure the

- attendance of the accused person before court whenever required, have a duty 20 to sign the bail bond form. They are also duty bound to inform court where an accused person is not able to attend and are liable to pay the bail bond sum should they fail to ensure the attendance of the accused person before court. - 8. Conclusion.

On the basis of the evidence put forward, the severity of the offence having been 25 considered, court is satisfied that this is a case where it should exercise its discretion and grant bail to the three applicants Okongu Sam, Marufa Ali and Ogwang Francis pending their committal. Bail is accordingly granted on the following conditions;

- a) Cash bond of Shs. 1,000,000/- for each applicant. - b) Each of the Sureties is bound in the sum of Shs. 2,000,000/- not cash. - c) The applicants and each of their sureties are to provide a recent photograph, telephone numbers and copies national IDs to the Registrar of this court and to the Chief Resident Soroti for filing and record purposes. - d) The Applicants are to report to the Registrar of the Court once a month on the first Monday of each month with effect from 01/07/2024 until otherwise directed by court.

I further direct the Registrar of this court to return the original charge file to Katakwi Chief Magistrates Court to enable the processing of committal of the applicant to the High Court for trial.

Before I take leave of this matter, I note that the application was brought by four applicants however only three affidavits were filed that is for Okongu Sam, Marufa Ali and Ogwang Francis, there is no mention of Ocen Charles, not even in counsel's submissions and it is for this reason that he is not mentioned anywhere in the determination of this application.

I further note that counsel for the applicants instead introduced another party to the application by filing an affidavit in support of the application for a one Ogwang Boniface.

In her submissions she states that she wishes to bring to this Court's attention that the applicant Ogwang Boniface does not appear on the indictment and 25 neither was he charged in court however he has been in detention albeit that the indictment does not reflect his particulars. She prayed that this court exercises its discretion and discharge Ogwang Boniface. Counsel then goes ahead to state that the facts reflected in the indictment are not the true reflection of this matter.

$5$

- This application as noted above was brought by four persons not including $\mathsf{S}$ Ogwang Boniface and it is before this court for the orders of bail pending committal. This court can therefore neither grant bail to Ogwang Boniface who was never a party to this application nor discharge him because he does not appear on the indictment. - $10$ I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

14th June 2024