Omalinga and Others v Uganda (Criminal Miscellaneous Application No. 23 of 2022) [2023] UGHCCRD 23 (25 April 2023)

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Criminal Miscellaneous Application No. 23 of 2022

(Arising from High Court Session Case No. 0442 of 2022)

- 1. Omalinga Sam - 2. Apedel Emmanuel - 3. Erimu Vincent alias Otedi

<pre>....................................

- 4. Obwapus John Charles - 5. Omongot James

Versus

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

## Before: Hon. Justice Dr Henry Peter Adonyo

## Ruling

1. Background:

Omalinga Sam, Apedel Emmanuel, Erimu Vincent alias Otedi, Obwapus John Charles 20

and Omongot James (hereinafter referred to as "the applicants") were charged and later indicted with the offence of aggravated robbery contrary to Sections 285 and 286 of the Penal Code Act, Cap 120 as amended.

It is alleged that on 14<sup>th</sup> February 2022 at Ngora road, in Kumi district, the applicants/accused persons robbed Abdullah Rajab of a mobile phone -Techno 25

$\mathsf{S}$

- smart phone make, and at or immediately before or immediately after, the said $\mathsf{S}$ robbery, used deadly weapons to wit; knives, pangas, sticks with nails on the said Abdullah Rajab. The applicants were arrested, charged and detained as follows; - a) Omalinga Sam, the 1<sup>st</sup> Applicant was committed for trial in the High Court on 10<sup>th</sup> August 2022 and has been on remand in Kumi Government Prison since 4<sup>th</sup> March, 2022. - b) Apedel Emmanuel, the 2<sup>nd</sup> Applicant was committed for trial on 10<sup>th</sup> August 2022 and has been on remand in Kumi Government Prison since 4<sup>th</sup> March 2022. - c) Erimu Vincent alias Otedi, the 3<sup>rd</sup> Applicant was committed for trial on 10<sup>th</sup> - August 2022 and has been on remand in Kumi Government Prison since 24<sup>th</sup> March 2022. - d) Obwapus John Charles, the 4<sup>th</sup> Applicant was committed for trial in the High Court on 10<sup>th</sup> August 2022 and he has been on remand in Kumi Government Prison since 24<sup>th</sup> March 2022. - 20

e) Omongot James, the 5<sup>th</sup> Applicant, was committed to the High Court for trial on 25<sup>th</sup> May 2022 and has been on remand in Kumi Government Prison since 4<sup>th</sup> March 2022.

The case against the applicants has not yet been fixed for hearing hence this application by which each of the applicants/accused seeks to be released on bail pending trial.

2. Legal basis of the Application:

The applicants brought this application by a Notice of Motion under Articles 20(2), 23(6)(a) of the Constitution of the Republic of Uganda, 1995; Section 14 (1) of the

Trial on Indictments Act Cap 23, Section 17(2) of the Judicature Act for orders that the each of the applicants currently on remand for the offence of Aggravated $\mathsf{S}$ Robbery be released on bail pending trial.

The application is anchored on the grounds which are stated in the application and enhanced in the affidavits in support of the application deposed by each applicant.

- The main grounds are that; 10 - a) The applicants have a constitutional right to apply for bail. - b) The applicants are presumed innocent until proven otherwise. - c) The applicants have been in detention since; $4^{\rm th}$ March 2022 for the $1^{\rm st}, 2^{\rm nd}$ and $5^{\text{th}}$ applicants and $24^{\text{th}}$ March 2022 for the $3^{\text{rd}}$ and $4^{\text{th}}$ Applicants and each of the applicants was committed to the High Court for trial but the hearing - 15

date has not yet been fixed. d) Each of the applicants has two sureties who have undertaken to abide by all

the terms and conditions that may be set by the Honourable Court.

e) The applicants have different places of abode within the jurisdiction of this

- Honourable Court, thus; - i. The 1<sup>st</sup> Applicant Kabata, Kumi Municipality, Kumi district, - ii. the 2<sup>nd</sup> Applicant, Odiding Cell, Kabata Ward, Kumi Municipality, Kumi district, - iii. the 3<sup>rd</sup> applicant Kabata cell, Kabata ward, Kumi Municipality, Kumi district, - iv. the $4^{th}$ applicant Kabata village, Odiding parish, Kumi municipality, Kumi district,

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- v. the 5<sup>th</sup> applicant Wiggins Secondary School, Kumi municipality, Kumi district. - f) It is within the interest of justice that the applicants be released on bail.

The respondent did not make a reply or objection to the application in spite of having been served with the application which it duly acknowledged receipt thereof as per the affidavit of service dated 3<sup>rd</sup> October 2022 and a return copy with the stamp of the ODPP Regional Office dated 07<sup>th</sup> October 2022.

3. <u>Submissions</u>:

$\mathsf{S}$

The applicants through their lawyers of Ms. Obore & Company Advocates, filed written submissions. The respondent did not. Only the submissions of the applicants are considered in arriving at the decision herein.

In the said submissions, Counsel for the Applicants' reiterated the grounds stated in the motion and supporting affidavits. The same is not be reproduced herein as it is on record and taken into account.

4. Decision:

a. The Law: 20

The applicants brought this application by a Notice of Motion under Articles 20(2), 23(6)(a) of the Constitution of the Republic of Uganda, 1995; Section 14 (1) of the Trial on Indictments Act Cap 23, Section 17(2) of the Judicature Act for orders that the each of the applicants currently on remand for the offence of Aggravated Robbery be released on bail pending trial.

It is of note that the applicants' lawyers cite Section 17(2) of the Judicature Act, Cap 13 which is non-existent in our statute books.

The basic principle for which a court may release a person arrested on a criminal $\mathsf{S}$ offence on bail is the presumption of innocence of the accused persons which is enshrined under Article 28(3) (a) of the Constitution of the Republic of Uganda, 1995.

## 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 10 the Court to be released on bail, and the Court may grant that person bail on such conditions as the Court considers reasonable.

Article 28 (3) (a) of the Constitution of the Republic of Uganda 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.

The position in Article 23(6)(a) of the Constitution is clarified by Section 14(1) of the Trial on Indictments Act, Cap 23 which states that;

The High Court may at any stage of the proceedings release the accused person 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 20 case, to appear before the Court on such a date and at such a time as is named in the bond. - The above provisions of the law are also fortified by the general principles found in Paragraph 5 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions; Legal Notice No. 8 of 2022, which states that; 25

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) 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 the trial; - d) The discretion of the court to grant bail on such terms and conditions as the court considers reasonable; and - 10

$\mathsf{S}$

e) The need to balance the rights of the applicant and the interest of justice.

Drawing from the foregoing, it is trite that an accused person such as the applicants herein have the right to apply for bail by virtue of Article 23 (6) (a) on account of the presumption of innocence.

However, the grant of bail or not is discretionary to the court as was held in *Uganda* 15 v Kiiza Besigye; Constitutional Reference No. 20 of 2005.

Furthermore, though Sections 14 and 15 of the Trial on Indictments Act, provides that a person indicted would only be released on bail if he or she proved to the satisfaction of the court that special circumstances did exist to warrant his or her being released on bail with the circumstances including grave sickness, infancy or old age, and the fact that the applicant has been on remand for one hundred and eighty days before committal for trial, as per Article 23(6)(c) of the Constitution and that the state does not oppose the applicant being released on bail, the proof of these circumstances is not mandatory as courts have the discretion to grant bail even where none is proved. 25

Also as was held in Foundation for Human Rights Initiative vs. Attorney General, Constitutional Petition 20/2006, exceptional circumstances are no longer a mandatory requirement for the release of an accused person on bail as in that case

the court found Section 15 (1) (a) of the Trial on Indictments Act to be in $\mathsf{S}$ contravention of the Constitution.

However, an applicant for bail is not to be deprived of his/her freedom unnecessarily or as a mere punishment where he or she has not been proved guilty by a competent court of law as was held in *Tumwirukirire Grace v Uganda; Miscellaneous Criminal* Application 94 of 2019[2020]

This principle of protection of personal liberty was further concretized in the case of Col. (Rtd) Dr Kizza Besigye v Uganda Criminal Application No.83 of 2016 wherein Hon. Justice Wilson Masalu Musene (Late) held that;

"...court has to consider and balance the rights of the individual, particularly with regard to personal liberty...

The active principle in granting bail is that of upholding the liberty of the individual, while simultaneously protecting the administration of justice. (See: Abindi & Another v Uganda; Miscellaneous Criminal Application 20 of 2016 [2017])."

- An applicant should not be incarcerated if he has a fixed place of abode, has sound 20 sureties capable of guaranteeing that he will comply with the conditions of his or her bail and is willing to abide by all other conditions set by the court. - Consequently, an accused person may be granted bail pending trial if he or she fulfils the conditions set by the court for his or her release. - In respect of the instant matter, the offence with which each of the applicant is 25 charged with carries grave consequences as the maximum possible sentence upon conviction against each of them is death by hanging.

- The applicants, however, depose among others, in their respective affidavits in $\mathsf{S}$ support of the application and in the submissions of their counsel that; - a) They have been in detention at Kumi Government Prisons since 4<sup>th</sup> March 2022 for the $1^{st}$ , $2^{nd}$ and $5^{th}$ applicants and $24^{th}$ March 2022 for the $3^{rd}$ and $4^{th}$ applicants. - 10 - b) They were committed to the High Court (on 10<sup>th</sup> August 2022 for 1<sup>st</sup>, 2<sup>nd</sup> 3<sup>rd</sup> and 4<sup>th</sup> applicants and 25<sup>th</sup> May 2022 for the 5<sup>th</sup> Applicant) for trial but a hearing date has not yet been fixed. - c) They each have two sureties who have undertaken to abide by all the terms and conditions that may be set by the Honourable Court, - 15

d) They have fixed places of abode in the jurisdiction of this Honourable Court that is, Kumi district

- e) It is within the interest of justice that the applicants be released on bail. - b. Analysis: - i. Fixed places of abode: - By their application and the affidavits in support, the applicants state that they have 20 fixed places of abode within the jurisdiction of this Honourable Court as follows; - a) the 1<sup>st</sup> Applicant Kabata Cell, Kumi Municipality, Kumi district, - b) the 2<sup>nd</sup> Applicant, Odiding Cell, Kabata Ward, Kumi Municipality, Kumi district, - c) the 3<sup>rd</sup> applicant Kabata cell, Kabata ward, Kumi Municipality, Kumi district, - d) the 4<sup>th</sup> applicant Kabata village, Odiding parish, Kumi municipality, Kumi district, - e) the 5<sup>th</sup> applicant Wiggins Secondary School, Kumi municipality, Kumi district.


All the foregoing indicated places are clearly within the jurisdiction of this $\mathsf{S}$ Honourable Court, however, there is no proof in form attachments like LC1 letters in respect of each the applicants/accused persons to prove that they indeed have fixed places of abode in the said respective areas. Such LC1 letters would have confirmed to this court that the applicants are permanent residents in those indicated areas, have for long stayed there; and most importantly that they persons 10 are known to the local authorities of the areas which they indicate as being their fixed places of abode.

Confirmation of a fixed place of abode is iterative for according to Paragraph 13 (1) (k) of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions;

Legal Notice No. 8 of 2022, some of the required consideration by a court before it 15 can grant bail to an applicant/ accused whether the applicant has a fixed place of abode within Uganda.

A fixed place of abode for each of the applicants which is within the jurisdiction of this Honourable Court is appropriate as to guarantee to the court that the applicants/accused persons can be easily found in the event when they are required for their trial or have absconded their trial.

It is thus the duty of an applicant / accused to produce such a confirmation as was pointed in the case of Kanyamunyu Matthew Muyogoma versus Uganda *Miscellaneous Criminal Application No. 0177 of 2017,* where it was held that;

"The onus is on the applicant to satisfy that he has a permanent place of abode 25 in a particular village, sub-county and district. This is to enable the court exercise jurisdiction over the applicant while on bail being able to trace his whereabouts whenever it is necessary".

- The non-proof of by an applicant of his /her having a fixed place of abode is indeed $\mathsf{S}$ a relevant ground for refusal to grant bail as having such a fixed place of abode is one of the key factor for consideration by a court on the likelihood or not of an applicant absconding his trial once granted bail. This is the overarching import of Section 15(4) of the Trial on Indictments Act, which provides that; - 1) Notwithstanding section 14, the court may refuse to grant bail to a person 10 accused of an offence specified in subsection (2) if he or she does not prove to the satisfaction of the court— - 4) In considering whether or not the accused is likely to abscond, the court may take into account the following factors— - 15

a) whether the accused has a fixed abode within the jurisdiction of the **court or is ordinarily resident outside Uganda.** (Emphasis mine)

Consequently, in the absence of the LC1 letters and National Identity Cards with respect to each accused's averment regarding a fixed place of abode, it is the finding of the court that the applicants have failed to prove that they have fixed places of abode within the jurisdiction of this Honourable Court in the stated respective areas.

## ii. Substantial sureties:

The applicants state that they each have two substantial sureties whose relationships to the applicants are known and who have undertaken to abide by all the terms and conditions that may be set by the Court and that they reside in the jurisdiction of presented by each the applicant are as follows;

- 1) Omalinga Sam: - a) Oumo Simon father to the $1^{st}$ Applicant.

b) Ikelemit Patrick – paternal uncle to the $1^{st}$ applicant.

- 2) Apedel Emmanuel: - a) Odelok John Charles father to the $2^{nd}$ applicant. - b) liangolet Jenifer mother to the $2^{nd}$ applicant. - 3) Erimu Vincent alias Otedi: - a) Ocoobe Gabriel uncle to the $3^{rd}$ applicant. - b) Arionget Jennifer Harriet paternal aunt to the 3<sup>rd</sup> applicant. - 4) Obwapus John Charles: - a) Oloit Simon paternal uncle to the $4^{th}$ applicant. - b) Arionget Betty mother to the $4^{th}$ applicant. - 5) Omongot James: - a) Iliat Geofrey father to the $5^{th}$ applicant. - b) Okwii Patrick paternal uncle to the $5^{th}$ applicant.

A surety is defined by Paragraph 4 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions; Legal Notice No. 8 of 2022 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 the State if the

applicant fails to appear in court. Therein is the main duty of a surety.

What is important about sureties is that they should understand their duties and are persons who command authority over an applicant for bail.

In respect of the presented sureties, it is indicated that they have been advised of 25 their roles as sureties and they acknowledge such roles and in confirmation of this duty they have attached LC1 letters of their respective places of abode which has

been seen and also attached their National Identification cards which identify them $\mathsf{S}$ in addition to their stated relationships to the respective applicant/accused persons.

My observation, however, is that in as much as counsel for the applicants submits that the sureties know their roles, it is prudent that each of the sureties commits themselves to their role by deposing each an affidavit in that respect.

Be that as it may, I do find that because they have been properly identified, the 10 sureties for each applicant is considered substantial as each is able to exercise overarching control over each of the applicant/ accused person.

## iii. Antecedents:

In the case of Foundation for Human Rights Initiative vs. Attorney General Constitutional Petition No. 020 of 2006, it was held that the nature of the offence, 15 antecedents of the applicant and whether the applicant has a fixed place of abode in the Court's jurisdiction should be strongly considered by a court in an application for bail.

The antecedents of the applicants have not been brought to the attention of the court either by the respondent and or someone else. The only thing this court is 20 privy to is the fact that no hearing date for the offence for which each of the applicant is charged is yet to be fixed. That leave this area grey.

> iv. Exceptional circumstances:

Pursuant to Section 15 (1) of the Trial on Indictments Act, a person indicted or in this instant case charged for an offence triable only by this Court, can be released on bail 25 if he or she proves to the satisfaction of the court that special circumstances exist to warrant his or her being released on bail. The circumstances that are regarded as


- special include grave sickness, infancy, or old age; the fact that the applicant has $\mathsf{S}$ been on remand for over twelve months before committal for trial, as per Article $23(6)(c)$ of the Constitution. Proof of these circumstances, though, as already indicated is not mandatory but directory, as courts, have the discretion to grant bail even when none is proved. - See: Mulongo Namubiru Florence vs Uganda HCMA No. 84 of 2014 where bail was 10 granted without any exceptional circumstances.

Also, in *Foundation for Human Rights Initiative vs. Attorney General, Constitutional Petition 20/2006,* exceptional circumstances are not mandatory.

It goes without saying the offence of aggravated robbery with which the accused persons are charged is a capital and grave one, and by looking at the maximum 15 punishment provided for it under Section 286 (2) of the Penal Code Act as amended, the maximum punishment is a death sentence upon conviction.

Consequently, an application for bail by an applicant who is charged with such an offence must be considered judiciously by a court.

Paragraph 14(1) (a) of the Constitution (Bail Guidelines for Courts of Judicature) 20 (Practice) Directions; Legal Notice No. 8 of 2022 provides for considerations for bail in capital offences and other grave offences by the High Court which may, in exceptional circumstances, grant bail to a person accused of committing an offence triable only by the High Court. The applicants herein have not listed any exceptional circumstance that would make a case for each of them to be released on bail 25 pending hearing. As such none of them have not proved any exceptional circumstance for the court to consider the instant application.


Additionally, in Uganda vs Rtd Col. Dr Kiiza Besigye Constitutional Reference No. 20 of $\mathsf{S}$ 2005, it was held that the court ought to balance the constitutional right of the applicant and the need to protect society from lawlessness.

Since each of the applicants failed to show or prove their fixed places of abode by LC1 letters or their National IDs, and yet the same was averred in each of the affidavits in support of the application in paragraph 8, I would find that each of the 10 applicants have failed to prove to the court that they have a fixed place of abode within the jurisdiction of the court. This failure casts in doubt in regard to whether each of them will promptly return to face their charges during the trial if granted which is merely a temporary freedom from incarceration until completion of one's trial.

In the circumstances, I am inclined to reject each of the applicants' application for bail given the fact that none has proved either having a fixed place of abode within the jurisdiction of this court and have not proved any exceptional circumstances though they have provided substantial sureties.

Accordingly, this application is regrettably not allowed. 20

I so order accordingly at the Soroti High Court Circuit, this 25<sup>th</sup> day of April 2023

Hon. Dr. Justice Henry Peter Adonyo Judge

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