Kisembo Tito & 2 Ors v Uganda (Miscellaneous Application 52 of 2023) [2024] UGHC 411 (31 May 2024)


THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL

HCT-CR-MISCELLANEOUS APPLICATION NO. 052 OF 2023

(ARISING FROM BUNDIBUGYO CRIMINAL CASE NO AA 008 OF 2023; BUNDIBUGYO CRB NO 095 OF 2023)

A1. KISEMBO TITO

A2. ATUGONZA CHRISESTOM

A3 BYARUHANGA GODFREY====================APPLICANTS

VERSUS

UGANDA====================================RESPONDENT


BEFORE HON. JUSTICE VINCENT WAGONA

RULING


This is an application for bail pending trial in respect of the 3 applicants brought by way of Notice of Motion under Article 23(6)(c), 28(3)(a) of the Constitution; Section 14(1) of the Trial on Indictments Act Cap. 23; Rule 2 of the Judicature (Criminal Procedure) (Applications) Rules SI 13-8); and Sections 4, 5, 6, 11, and 13 of the Constitution (Bail Guidelines for Courts of Judicature) (Practice) Directions, 2022.


The grounds of the application are stated in the Notice of Motion and supported by affidavit of each applicant and the written submissions of Counsel Cosma A. Kateeba of KRK Advocates, Counsel for the Applicants and are that:


  1. The applicants were arrested on 2nd February 2023 and are charged with murder and are not yet committed to the High Court for trial but have spent more than 180 days on remand. The first applicant being aged 63 years is of advanced age. The 2nd applicant is aged 23 years while the 3rd applicant is aged 39 years.



  1. The 1st applicant has a fixed place of abode at Buhundu II village, Buhundu Parish, Ntotoro Subcounty, Bundibugyo District. The 2nd applicant is the son of the 1st applicant living in the same village. The 3rd applicant is son in law to the 1st applicant and lives in Buhundu III village, Buhundu Parish, Ntotoro Subcounty, Bundibugyo District.


  1. The 1st applicant holds National ID No. 013909107 NIN 59003103M41. The 2nd applicant has no national ID. The 3rd applicant holds National ID No. 013908021 NIN CM85003103A8LE.


  1. Each applicant has produced a substantial surety:


  1. The 1st applicant has brought: (1) Byamukama Ronald Kisembo a male adult aged 43 years. District Planner Bundibugyo District. Resident of Hakitengya II village, Hakitengya Parish, Tokwe Sub-county, Bundibugyo District; National ID CM800031014J4K. Telephone number 0781151368. Son of applicant; (2) Mrs. Batigwa Asita, female adult aged 57 years. Resident of Buhundu II village, Buhundu Parish, Ntotoro Subcounty, Bundibugyo District. National ID CF65003103CL4A. Telephone number 0787837362. Wife of applicant.



  1. The 2nd applicant produced: (1) Kabasomi Feresta, female adult aged 53 years. Resident of Buhundu II village, Buhundu Parish, Ntotoro Subcounty, Bundibugyo District. National ID CF70003103CLCD. Telephone number 0770356142. Mother of applicant; (2) Byamukama Brasio, male adult aged 46 years. Resident of Bundiwelume village, Bundinyama parish, Tokwe sub-county, Bundibugyo District. National ID CM7700310376VG. Telephone number 0784021342. Brother in law of applicant.


  1. The 3rd applicant brought: (1) Mugenyi Elijah a male adult aged 61 years. NRM District Administrative Secretary of Bundibugyo District. Resident of Kirumya Trading Center, Nyansoro Paris, Ntotoro sub-county, Bundibugyo District. National ID CM610031005LHD. Telephone number 0782160021. Uncle of applicant; (2) Kisembo Bhelogi, male adult aged 69 years. Sub county counselor for Older Persons. Resident of Kirumya Trading Center, Nyansoro Paris, Ntotoro sub-county, Bundibugyo District. National ID CM5300310136PJ. Telephone number 0775258294. Uncle of applicant.



The applicants were not produced in court but were represented by Counsel Cosma A. Keteeba of Ms. KRK Advicates who filed written submissions which I have considered, and later formally presented the sureties in court. I have also considered the written submissions of the state in opposition of the applications supported by the affidavit of the Investigating Officer No. 30020 D/CPL Bambalira John who among others stated that he has failed to complete the investigations for now more than one year, due to the non cooperation of principal witnesses.



CONSIDERATION BY COURT



Article 23 (6) of the Constitution provides as follows: Where a person is arrested in respect of a criminal offence—

  1. the person 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;

  2. ………..;

  3. in the case of an offence triable only by the High 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.



Section 14 (1) of the Trial on Indictments Act that provides for release on bail states as follows: The High Court may at any stage in 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 case, to appear before the court on such a date and at such a time as is named in the bond.”



Section 15 of the Trial on Indictments Act provides for refusal to grant bail as follows:

  1. 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—

  1. that exceptional circumstances exist justifying his or her release on bail; and

  2. that he or she will not abscond when released on bail.


  1. An offence referred to in subsection (1) is—

  1. an offence triable only by the High Court

  2. ……………

  1. In this section, “exceptional circumstances” means any of the following—

  1. 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;

  2. a certificate of no objection signed by the Director of Public Prosecutions; or

  3. the infancy or advanced age of the accused.

  1. In considering whether or not the accused is likely to abscond, the court may take into account the following factors—

  1. whether the accused has a fixed abode within the jurisdiction of the court or is ordinarily resident outside Uganda;

  2. whether the accused has sound securities within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail;

  3. whether the accused has on a previous occasion when released on bail failed to comply with the conditions of his or her bail; and

  4. whether there are other charges pending against the accused.


The accused is entitled to apply to the court to be released on bail, and the court has the discretion to grant or refuse bail.


In Col (Rtd) Dr. Kizza Besigye V. Uganda, High Court Kampala Criminal Application No. 83 of 2016 Hon. Justice Masalu Musene held that: “…..the court is given or left with the discretion to grant or refuse bail. It must always be borne in mind that where any legislation confers upon court the discretion to do or refrain from doing, grant or refuse to grant a relief sought, such discretion must be exercised without any malice, ill will, ulterior motives or regard to external influence or circumstances. In exercising that discretion, the court must be satisfied that the provision of the law have been complied with”.


In Tumwekwase Owen v. Uganda, Mbarara HCT-05-CR-MA 57/2019 Hon Justice Ssekaana Musa stated that: “According to Article 23 (6) (a) and 28 (3) of the Constitution of the Republic of Uganda, persons accused of criminal offences have a right to apply for bail. However, the grant of bail is discretionary to the court (see Uganda Vs Kiiza Besigye; Const. Ref No. 20 of 2005).” In the same case, the Judge stated that: “However the applicant is charged with a very grave offence in respect of which the law stipulates that in order to be released on bail, the applicant must prove to the satisfaction of court an exceptional circumstance (see section 15(3) of the Trial on Indictments Act, Florence Byabazaire vs Uganda High Court Miscellaneous Application Number 284 of 2006. The applicant has not proved any exceptional circumstance in this application. This court, of course, has in the exercise of its overall jurisdiction, powers to grant bail, even in absence of an exceptional circumstance being proved. Court does so through the judicial exercise of its discretion. The test this court has set is that: “The burden is upon the applicant to satisfy court by putting forth before court a set of facts, beyond the ordinary considerations for bail, upon which the court can act, in the exercise of its discretion, to admit the applicant to bail”(See: High Court of Uganda at Gulu Miscellaneous Application Number 0037 of 2008: Bongomin Richard Akal vs Uganda, unreported)”.



In this case, the court considers that the court has the discretion to grant bail but remains alive to the gravity of the offence of murder with which the applicants are charged. I am guided by among others the gravity of the offence; the nature of the offence; the likelihood of the applicants to attend court; the stage of proceedings; and whether each of the applicants has a fixed place of abode; and whether they have produced substantial sureties.


There is always a concern as to whether the applicant if granted bail, will return to face trial. In Aliobe Joseph & Ors v. Uganda, Miscellaneous Criminal Application Nos. 0015, 0016, and 0017 of 2016 Hon. Justice Stephen Mubiru stated that: “In Hurnam v State of Mauritius [2006] 1 WLR 857, PC, it was held that; A person charged with a serious offence, facing a severe penalty if convicted, may well have a powerful incentive to abscond or interfere with witnesses likely to give evidence against him, and this risk will often be particularly great in drugs cases. Where there are reasonable grounds to infer that the grant of bail may lead to such a result, which cannot be effectively eliminated by the imposition of appropriate conditions, they will afford good grounds for refusing bail, but they do not do so of themselves, without more. They are factors relevant to the judgment whether, in all the circumstances, it is necessary to deprive the applicant of his liberty. Whether or not that is the conclusion reached, clear and explicit reasons should be given.”


Regarding whether the accused will stand their trial if released on bail, in Obey Christopher & Ors. ACD Kololo MISC APPLIC-NO’s. 045, 046, and 047/2015, Hon. Justice Margaret Tibulya stated that: “This is a function of a number of factors which include the gravity of the offence(s), the likely penalty in the event of conviction, whether or not the applicants have known addresses and tangible interests within the courts jurisdiction, and the quality of sureties they have furnished.”



I am satisfied that the applicants deserve to be granted bail. Bail is granted upon the fulfillment of the following conditions before they are released:

  1. A copy of this ruling shall be served upon the ODPP Regional Officer.

  2. Each applicant is to execute and pay a cash bond of UGX 1,000,000/= (One Million Shillings Only).

  3. Each of the sureties will execute a non cash bond of UGX 20,000,000/= (Twenty Million Shillings only).

  4. Each applicant shall register their full contact details and those of their sureties and LC Chairpersons with the Office of the Regional Officer ODPP.

  5. Each applicant is to report to the Assistant Registrar of this Court and to the Officer in Charge of Criminal Investigations at Bundibugyo Police Station on the last Tuesday of every month starting in June 2024 until further Orders of this Court.

Vincent Wagona

High Court Judge / Fortportal


DATE: 31/05/2024

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