Uganda v Mukasa (Criminal Application 20 of 1994) [1994] UGHC 77 (21 March 1994)

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CRIMINALAPPLICATION NO. 20 OF 1994

Original Criminal Case No. 389 of 1993 at Nakawa)

**UGANDA:**

PROSECUTION

## VERSUS

CHARLES MUKASA: .. ...................................... **BEFORE:** The Honourable Mr. Ar. Justice E. S. Lugayizi RULING:

The Applicant herein who is 68 years of age was charged with the offence of defilement of a girl under the age of 18 years contrary to section $123(1)$ of the Penal Code Act. He was remanded thereafter on the 31st/ August. 1993.

The Applicant applied for bail (through his Advocates Messrs Patel and Company Advocates) by way of Notice of Motion which was supported by two affidavits sworn by Mr. Janes Nangwala who is an advocate. The gist of the said affidavits was that the Applicant herein was known to the deponent as a client. He was of advanced age of 68 years. He had a proper place of abode at Dangwa, Masaka, and sureties who would ensure his return to court if bail was granted to him.

At the time of hearing the application herein, Miss Nanyonga Jacquiline from M/S Patel & Company Advocates contended that the Applicant had sufficiently shown that there were exceptional circumstances justifying his release on bail in that he was 68 years of age.

Counsel then produced two sureties in the persons of Mrs. Jane Namugenyi aged 60 years old. She is a sister of the Applicant and a headmistress at Kisubi Domestice Science School.

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She resides at Kawuku zone Kisubi. She was willing to stay with the Applicant at Kisubi and ensure his return to court to answer the charge herein once he was released on bail.

The second surety was Mr. Mike Mpagi who is aged 45 He is an uncle of the Applicant. He works for years. Empire Insurance Group and resides at Naguru I, parish. where he is the Vice-Chairman of the RC II. He also promised to ensure the return of the Applicant to answer the charge herein should he be released on bail.

I did not have the benefit of hearing from the DPP who never showed up for the application herein.

Be that as it may, section $1/A(1)$ of the Trial on Indictments Decree reads as follows,

> "Notwithstanding the provisions of section 14, a person accused of an offence triable only by the High Court or an offence under the Penal Code relating to acts of terrorism, cattle rustling, rape contrary to<br>section 117 of the Penal Code, issuing a false cheque contrary to<br>section 364 of the Penal Code, defilement contrary to sections $123$ and $124$ of the Penal Code and any other offence in respect of which a Magistrate's Court has no jurisdiction to grant bail or an offence under the Firearms Act punishable by a sentence of imprisonment of not less than ten years, shall not be granted bail<br>unless he proves to the satisfaction of the court,

- $(a)$ that exceptional circumstances exist justifying his release on bail, and - $(b)$ that he will not abscond when released on bail. - 2. In this section, exceptional circumstances shall mean any of the following, - $(a)$ .......... - $(b)$ ........... - $(c)$ $...$ or $...$ or - $(d)$ the infancy or advanced age of the accused".

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In this case where the Applicant who is 68 years of age is relying on the ground of advanced age, the obvious question to resolve therefore, is whether 68 years of age qualifier to be called "advanced age" in order to enable the Applicant to enjoy the advantage of being released on bail under the above law!!

At the beginning of the application herein, first of all I had some doubts whether the Applicant had sufficiently shown that he was indeed 68 years of age! However, counsel for the Applicant aptly pointed out to me that the state had already recognized that fact in the charge sheet herein, where the Applicant's age was cited as 67 years last year.

Secondly, there was also Annexture "A" to $M$ r. James Nangwala's affidavit which was a doctor's report in respect of the Applicant. It is quite clear too that within that report which is dated 18th January, 1994, the Applicant was described by Dr. Lorna Nsuuti of Rubaga Hospital as "MR. MUKASA CHARLES AGED 68 YEARS".

I am therefore quite satisfied now that the above is the Applicant's true age.

In deciding whether 68 years of age is "advanced age" for the purposes of the above law, counsel referred me to two High Court decisions, that is to say, Robert Kitariko v. Uganda Misc. Criminal Application No. 16 of 1992; and Adimola Andrew'v. Uganda Misc. Criminal Application No. 43/91.

In the first case, Robert Kitariko who was 58 years old and in the second case, Andrew Adimola who was 66 years old were both granted bail after court was satisfied that they were of advanced age.

Having failed to find a Supreme Court authority giving guidance on what advanced age for the purpose of the law in issue is, I am willing to use the above two High Court

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good law. decisions as laying down a clear guide as to what amounts to advanced age for purposes of section 14A of the Trial on Indictments Decree.

I therefore agree with learned counsel for the Applicant that nor client being 68 years of age is a person of advanced age within the meaning of section LAA of the T. I. D. and has accordingly shown special circumstances under that law which would entitle him to being granted bail.

I am also satisfied that the Applicant who has a propen place of abode at Dangwa Musaka has produced substantial sureties who will ensure his return to court to answer the charge herein. I accordingly grant him bail on the following conditions,

- $1.$ He is to crecute a bond of UGS. 100,000/= CASH. - $2.$ His two sureties shall likewise execute a bond of UGS. $1m/=$ each NOT C. SH. - The Applicant shall also report to the Central $3.$ Police Station Kampala once every month (beginning with the 21st day of April, 1994, until this case is disposed of, or this order is varied).

Needless to say, the Applicant will also continue attending to his appearances in this case as dictated by the lower court until he is committed to this Honourable Court for trial.

E. S. Lugayizi

AG. J U D G E $21/3/1994$

## Read before:

Miss J. Nanyonga for Applicant. Miss Nkasibwe for DPP. Mr. Kamyuka C/Clerk.

Lugayizi AG. JUDGE