2020 Ughccrd 3 - 6

THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CRIMINAL DIVISION
MISCELLANEOUS APPLICATION NO. 158 OF 2019
5 KAYONGO BASHIR --------------------------------- APPLICANT
VERSUS
UGANDA ----------------------------------------------- RESPONDENT
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
10 RULING
By this Application made under the provisions of the Law cited in the
Notice of Motion. The Applicant sought orders of this court, releasing
him on bail pending his trial, and that consequential directions to be
issued to regulate Bail.
15
The grounds for the application are also set out in the Notice of Motion
and I do not find it necessary to reproduce them here. Suffice it to say
that, the Applicant is charged with aggravated defilement contrary to
Section 129 (4) (c) of the Penal Code Act.
20
While he was committed for trial on the 12th day of April, 2019, and has
been on remand since 28.09.18, the date for trial has not been set.
The application for bail is supported by an affidavit of the Applicant

25 dated 12.08.2019. There is an affidavit in reply of the Respondent.
When the application was called for hearing on 29.07.2020, Counsel for
the Applicant went through the Notice of Motion and supporting affidavit
and submitted that Applicant seeks to be released on bail pending trial.
30
1
He asserted that this Court has jurisdiction to grant bail, pointing out
that the Applicant has a fixed place of abode at Mabanda Cell, Matugga,
Gombe Division, Nansana Municipality, Wakiso District.
5 Also that, the Applicant has substantial sureties before Court and if
released will not interfere with the investigations as they are complete,
and he will not abscond.
Counsel the presented the National Identify card of the Applicant and a
10 letter from the LC1 Secretary as proof of residence. – See copies on
record.
The Sureties three in number were also presented and copies of their
National Identity cards and letters from the LCs put on record.
15
The first surety is a sister to the Applicant. The second surety is the
wife. While the third surety is a family friend.
The wife of the Applicant did not present her National Identity card as it
20 is said to have been lost. She instead presented a letter from Matugga
Police Station where she reported the loss and that she is in the process
of acquiring a new identity card.
It was then prayed that the application be allowed.

25
Referring to the affidavit in reply, Counsel for the Respondent opposed
the application.
She contended that the Applicant had not proved that he has a
30 permanent place of abode as he had not presented any proof of
ownership of a place of residence or any payment of Utility bills.
That therefore, he would be hard to trace.
35 Secondly that, the offence with which he is charged is a serious one that
carries a maximum sentence of death and he has been committed for
trial and he is therefore likely to abscond.
2
Further that, since he is a person of authority in the school where the
victim was a student, he is likely to interfere with witnesses.
Also that, no exceptional circumstances had been proved to warrant

5 release on bail and that he does not qualify. For example, that, he is
not of advanced age and there is no report indicating that he is a first
offender.
And that the sureties presented are not substantial. The first one
10 though a sister lives in Nakaseke while Applicant stays in Matugga.
Therefore, that, the surety will not be able to monitor the Applicant to
ensure that he answers the bail.
That the second surety although wife of the Applicant will not be able to
15 compel him to appear for trial. And that it is not clear if she has any
work and therefore may find it hard to comply with the terms.
While the third surety has not availed information as to what she does.
20 And that all the LC introduction letters provided bear the date of
30.07.2020 and 31.07.2019.
Therefore that, the documents are questionable and Court should not
rely on them.
25
It was then prayed that application be dismissed.
In rejoinder, it was the submission of Counsel for the Applicant that the
National Identity cards tendered together with the LC letters of
30 introduction are proof that the Applicant is a Ugandan and resident of
the area confirmed by the LCs.
That the role of sureties has been under estimated and the Applicant
cannot abscond.
35
While the charge is a capital one, it is within the jurisdiction of court to
grant bail.
3
Counsel reiterated that, interference with investigations is not possible
as the investigations are complete.
5 Relying on the case of Foundation for Human Rights Initiative vs.

Attorney General, Constitutional Petition 20/2006, Counsel
asserted that exceptional circumstances are no longer a requirement for
release on bail; as the court found S.15 (1) (a) of the Trial on
Indictment Act to be in contravention of the Constitution.
10
That while the offence is serious, the Applicant has no previous record
and is presumed innocent until proven guilty. He relied on the case of
Panjur vs. Rep. [1973] EA 282 cited with approval in the case of
Kanyamunyu Mathew Muyogoma vs. Uganda Cr. App. No.
15 0177/2017 where it was held that "if courts are simply to act on
allegations, fears or suspicions, then the sky is the limit and one
can envisage no occasion when bail would be granted
whenever such allegations are made”.
20 Counsel then prayed court to overrule the objections of the Respondent

and grant the Applicant bail.
After careful consideration of the submissions of both Counsel and after

going through the authorities cited in support of the application, I find
25 that I am more persuaded by the submissions of Counsel for the
Applicant.
It is trite law that “a person whose liberty has been deprived by

imprisonment before trial or when not serving a sentence is
30 free to apply for bail”. However, the discretions to grant or not
grant bail lies with court, which has to take all interests of justice of the
parties and the society as a whole into account.
In the present care, the investigations are complete and the Applicant
35 was committed for trial. The possibility of Applicant’s interference with
investigations is not likely.
4
He has presented sureties who have been well identified before court.
They are close family members that is, Sister, Wife and Family friend,
who have undertaken to ensure that Applicant attends court when
required to do so.
5
Counsel for the Respondent’s argument that they are women and
cannot therefore prevail upon the Applicant to appear is hereby rejected.
It is based on mere speculation. The sureties are substantial and if they
fail in their duty, there will be consequences.
10
While the offence of aggravated defilement is a serious one that carries
a maximum sentence of death, it still remains the law that an accused is
presumed innocent until proven guilty. It is therefore not right to act on
fears and allegations of the possibility of abscondment if one is granted
15 bail.
It has been established by case law that “if courts are simply to act
on allegations, fears or suspicions, then bail would never be
granted whenever such allegations are made”. – Refer to Panjur
20 vs. Rep. (Supra).
The contention that Applicant has no fixed place of abode is belied by

the letter of introduction from the LCs and his National Identity card,
together with that of his wife, the second surety.
25
The village, Parish and District are well known. The Applicant has
satisfied the onus placed on him to prove he has a permanent place of
abode. – See Mugyenyi Steven vs. Uganda Miscellaneous
Application. 65/2005, Justice Remmy Kasule.
30
With that address which is not disputed, his whereabouts can be traced.
While the Applicant has not deposited any title to show he owns
property/home or produced any Utility bills, that alone would not be
35 ground for denying him bail. – See the case of Kanyamunya
Matthew Muyogoma vs. Uganda (Supra).
5
What is important is that he remains within the jurisdiction of this court
and that the sureties ensure that he appears in court or complies with
the bail conditions set by court.
5 The Applicant was committed for trial but it is not certain when he will
be tried, contrary to the requirement for speedy trial.
As submitted by Counsel for the Applicant and rightly so, the

requirement for exceptional circumstances to be proved before a person
10 is granted bail pending trial have long been set aside by the Court of
Appeal. – See the case of Foundation for Human Rights Initiatives
VS. Attorney General (Supra).
For all those reasons, I allow the application. The Applicant is granted
15 bail on the following terms.
1) Cash bond of Shs. 500,000/-
2) Each of the Sureties is bound in the sum of Shs. 2,000,000/- not cash.
20
3) The Applicant to report to the Registrar of the Court once a month on
the first Monday of each month with effect from 03.08.2020 until
otherwise directed by court.
25
FLAVIA SENOGA ANGLIN

JUDGE
30.07.2020

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THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISCELLANEOUS APPLICATION NO. 158 OF 2019

5 KAYONGO BASHIR --------------------------------- APPLICANT

UGANDA ----------------------------------------------- RESPONDENT

BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN

The application for bail is supported by an affidavit of the Applicant

It was then prayed that the application be allowed.

That therefore, he would be hard to trace.

Also that, no exceptional circumstances had been proved to warrant

5 Relying on the case of Foundation for Human Rights Initiative vs.

20 Counsel then prayed court to overrule the objections of the Respondent

After careful consideration of the submissions of both Counsel and after

It is trite law that “a person whose liberty has been deprived by

The contention that Applicant has no fixed place of abode is belied by

As submitted by Counsel for the Applicant and rightly so, the

1) Cash bond of Shs. 500,000/-

FLAVIA SENOGA ANGLIN

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