THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA
HCT- 00-CR-CM-0078 OF 2021
[ARISING OUT OF CRIMINAL SESSION CASE NO. 42/2018.
MUSISI STEVEN APPLICANT/ACCUSED
VERSUS
UGANDA RESPONDENT/PROSECUTOR
BEFORE HON. JUSTICE TADEO ASIIMWE
RULLING.
This application is brought by way of Notice of Motion under Article 23
(6) (a), article 28(3)(a) & 44(c) of the Constitution, S. 14 (1) ,15(1) & S4 of
the Trial on Indictments Act and rule 2 & 4 of the Judicature (Criminal
Procedure) (Applications) Rules S.l. 13-8.
The applicant is indicted for the Murder of Mugabe Vincent which is
alleged to have occurred at Zirobwe, Luwero District on the 4th day of
May 2018.
The grounds of the application as presented and supported by the
affidavit of the applicant are as follows;
1. That the Applicant and 10 others were charged with murder
contrary to section 187 &188 of the penal code act on 10th may
2018 at luwero court.
2. That the charges against 8 of the co-accused were dropped by the
DPP & the applicant with 2 co-accused were committed to high
court for trial before honorable justice Ann Mugenyi Bitature in
December 2020.
3. That the applicants trial was not completed and the case was
adjourned to the next convenient session leading to further
remand of the applicant.
4. That the offence with which the applicant is charged is bailable by
this honorable court.
5. That the Applicant has a permanent place of abode at Kiyiya Village,
Zirobwe sub- county, Luwero District within the jurisdiction of this
court.
6. That the Applicant has substantial sureties within the jurisdiction
of this court to ensure compliance with bail conditions.
7. That the applicant is willing to obey the conditions set by this
honorable court pending hearing and determination of the main
criminal case.
The application was opposed by DPP through an affidavit Kyomugisha
Barbra a state attorney dated 14th may 2021.
At the hearing, the applicant was represented by Mamawi Bill while the
respondent was represented by Apolot Joy a State Attorney. Both
counsel filed written submissions in respect of their respective cases and
made highlights on the hearing day.
Counsel for the Applicant contended that exceptional circumstances
warranting release of the applicant exist since the applicant is of
advanced age of 54years. He cited the case of John Kashaka Muhanguzi
vs Uganda CA criminal Appeal no. 797/2014 where court held that 50
years was advanced age. He further argued that the applicant is a
responsible person an LC1 chairman who will not abscond if released on
bail. That the applicant has been on remand for a long time since 2018.
He further argued thatthe applicant has sound sureties to wit-Namatovu
rose, specioza Nansubuga and Lumara swaba who reside/Vvithin the
jurisdiction of this court. rf/mtXTH 1I flT)
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On the other hand, the state attorney argued that the applicant is
charged with a serious offence of murder, has not proved his proof of
residence and that the sureties are not substantial. That the trial of the
case has already started and 3 witnesses have so far testified. That it is
in the interest of time that the matter be fixed to resume hearing.
Having listened to the arguments of both parties and in consideration of
the evidence provided there to, I have come to the following conclusion;
The legal essence behind bail is in respect to upholding one's right to
personal liberty. This is especially the product of the presumption of
innocence as protected under Article 28 (3) of the Constitution of the
Republic of Uganda.
An applicant must not be deprived of his/her freedom unnecessarily or
as merely punishment where they have not been proved guilty by a
competent court of law. This principle of protection of personal liberty
was further cemented in the case of Col (Rtd) Dr. Kizza Besigye v Uganda
Criminal Application No.83 of 2016 wherein court held that court has to
consider and balance the rights of the individual, particularly with regard
personal liberty..."
Further in the case of Abindi Ronald and Anor v Uganda Miscellaneous
Criminal Application No. 0020 of 2016 where it was held that;
"Under Article 28 (3) of the Constitution of the Republic of Uganda, every
person is presumed innocent until proved guilty or pleads guilty.
Consequently, an accused person should not be kept on remand
unnecessarily before trial."
The Court's discretionary powers to grant bail are enshrined under
Section 14 (1) of the Trial on Indictments Act and the conditions under
which bail is to be granted under Section 15. These circums ces are
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broken down to proof of exceptional circumstances like grave illness, a
Certificate of no objection from the Director of Public Prosecution,
infancy or advanced age; and the fact that the accused will not abscond
to be proved by the accused having a fixed place of aboard, sound
sureties, among others. However, it is trite law that proof of exceptional
circumstances is not mandatory as courts have the discretion to grant
bail even where none is proved.
In the instant case the applicant presented sureties who in the normal
circumstances would be substantial. However, the applicant being an
LC1 chairperson, he cannot be controlled by people who are not his
supervisors in the LC admiration Authority. In my view persons above
him in power like LC2, LC3, LC5 Chairpersons would be better placed to
stand surety for the applicant.
In addition, the applicant's trial has already stated and 3 witness are on
record. Therefore, the issue of over detention without trial does not
arise in the circumstances. The best option would be to ensure that the
trial is complete rather than an interim remedy of bail.
I therefore find no merit in this application and the same is dismissed.
The applicant is not granted bail.
ORDER;
The main case against the applicant should be fixed for further hearing
as soon as practicable.
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TADE ASflTv E
JUDGE
11th November 2021
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