THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA SITTING AT MBARARA
(Arising from BUS-00-CR-AA-0088/2017)
- BYAMUKAMA ABEL
- MUSHARE HERBERT::::::::::::::::::::::::::::::::APPLICANTS/ ACCUSED
BEFORE: HON JUSTICE SSEKAANA MUSA
This is an application for bail pending trial. The applicants are indicted for the offence of Murder c/s 188 and 189 of the Penal Code Act.
The applicants are male adult Ugandans, a resident of Bugarama village in Bushenyi district. It is alleged that on the 26th of December 2016, at Bugarama village, the applicants and others still at large allegedly killed a one Kagumire Innocent Ntegyerize.
This application is premised on the following grounds that;
- The applicants deny committing the offence and have a constitutional right to apply for bail.
- The applicants have substantial sureties within the jurisdiction of this honourable court.
- The applicants have a fixed place of abode within the jurisdiction of High court and if released, will not abscond.
The applicants both filed their affidavits in support of the application.
They each presented two sureties each; the 1st applicant presented Mwesigwa Patrick from Buhimba B village, Itereero, Bushenyi district, a farmer, a cousin and village mate to the 1st applicant, aged 47 years as well as Bampabura Silver Kamugisha, aged 47 years, from Kitwe Central village, Bushenyi district. Both sureties provided copies of their National identity cards as well as their mobile phone contacts.
The 2nd Applicant, presented; Natukwasa Nelson, aged 45 years from Kitwe Central village, Bushenyi district and Kagwisagye Annington of Kitwe Central village, Bushenyi district. Both the sureties provided copies of their National identity cards as well as their mobile phone contacts.
The respondent opposed the application on grounds of the gravity of the offence and indictment attached and the gruesome manner under which the deceased was murdered. Counsel prayed that the application be dismissed.
At the hearing the applicants were represented by Tusubira Paul while the state was represented by Amy Grace
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).
This court is satisfied that applicants have permanent residence, there are substantial sureties to stand for them and there is no credible evidence that once released on bail, he will interfere with the investigations of the case. There are also no other criminal charges pending against the applicant.
However, the applicants 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 applicants have 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).
On the basis of the evidence put forward, court is not satisfied that this is a case where this court should exercise its discretion to grant bail to the applicants. The gruesome manner in which the murder was committed and the chances of jumping bail are very high.
Bail is denied.
The application is accordingly dismissed.
I so order.
24th January 2020