Bigugu v Uganda (Miscellaneous Application No.83 of 2015) [2015] UGHCCRD 452 (9 November 2015)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CRIMINAL DIVISION

MISCELLANEOUS APPLICATION NO.83 OF 2015

(ARISING FROM Criminal Case No. 39 of 2014)

ROBERT BIGUGU ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

RULING BY HON. MR. JUSTICE JOSEPH MURANGIRA

1. Introduction

The applicant, Robert Bigugu, through his lawyers M/S Fitz Patrick Furah & Co. Advocates brought this application for bail pending his trial by notice of motion under Articles 28 (3) (a) and 23 (6) (a) of the Constitution of Uganda, Sections 14 (1) and 15 of the Trial on Indictment Act, Cap 23 and the Judicature (Criminal procedure) (applications) Rules Statutory Instrument No 13 -8. The application is supported by an affidavit sworn by Titus Monday, the biological father of the applicant. And whereas the respondent through Kwezi Asiimwe, State Attorney filed an affidavit in reply to this application, that was sworn on 3rd November, 2015 and filed in Court on 4th November, 2015.

1. The application is based on the following grounds, that:- 2. The applicant has a Constitutional right to apply for bail pending trial.

3. The charges preferred against the applicant are bailable in this honourable Court.

4. The applicant is still innocent and has a plausible defence on the charge laid out.

5. The applicant is suffering from a terminal illness, HIV which needs adequate medical care which case can only be attained outside prison.

6. The applicant has substantial sureties within the jurisdiction of this Court ready to stand surety for him.

7. The applicant is ready and willing to abide by all terms and conditions as this Honourable Court may be pleased to set.

8. The applicant has a fixed place of abode at Mawanda Road, Nsooba LC. I within the jurisdiction of this Honourable Court.

9. The applicant is not likely to interfere with the investigations if granted bail. 10. This application is opposed on the following grounds; that:- 11. The applicant has failed to show that he has a fixed place of abode having not attached any documentary proof of him being a resident of Mawanda Road, Nsooba LC. I.

12. The applicant’s ailment can be treated in Luzira Prison where he is detained pending his trial.

13. The applicant has not shown that he has substantial sureties having not attached their particulars.

14. The applicant has not shown that he has dependants having not attached any documentary proof. 15. Resolution of this application by Court.

In his submissions, Counsel for applicant, Mr. Fitz Patrick Furah, argued each ground of this application separately. He primarily based his arguments on Article 23 (6) (a) of the Constitution. He submitted in support of all the grounds of this application, and prayed that the applicant be granted bail pending his trial in the High Court.

In reply, Counsel for the respondent, Ms. Lillian Nandawula, State Attorney, does not agree with the submissions by Counsel for the applicant. She submitted that the application lacks merit and that the same application be denied by this Court.

From the onset, this application is not supported by the affidavit evidence of the applicant. One could wonder why the applicant/accused opted out to give evidence in form of affidavit evidence in support of his application. Such circumstances in my considered view do weaken the applicant’s application.

Thus grounds like applicant’s fixed place of abode, having a wife and children he is caring for, whether he believes the sureties to be substantial and whether he will comply with the bail conditions remain in doubt in the minds of the Court. Again, the affidavit in reply and the submissions by Counsel for the respondent created a big doubt in the applicant’s case.

On the applicant’s ailment, the applicant did not swear an affidavit to prove that he is terminally ill. Attached to the affidavit in support of the application are clinical notes from Mulago infectious diseases institute which were acquired before the commission of the alleged offence. There is no medical report from Luzira Prisons Hospital, Luzira to proof that the applicant is on medication and that the said Hospital Management have failed to manage the applicant’s sickness. Section 15 (3) (a) provides that:-

“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.”

As such, therefore, the applicant failed to prove that his ailment/sickness cannot be treated within Murchison Bay Prison Hospital, Luzira.

Furthermore, I take note that the applicant is already committed to the High Court of Uganda for his trial. His case is pending fixing for hearing soon than later. The Assistant Registrar of this Court is directed to his Criminal Session case for hearing in the next convenient criminal session of the High Court.

1. Conclusion

In closing, considering the affidavits evidence by both parties the submissions by both Counsel for parties, and my analysis of the facts and law pertaining to this application, I found that this application lacks merit. It is accordingly dismissed.

Dated at Kampala this 9th day of November, 2015.

Joseph Murangira

Judge.

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CRIMINAL DIVISIONAL

MISCELLANEOUS APPLICATION NO.83 OF 2015

(ARISING FROM Criminal Case No. 39 of 2014)

ROBERT BIGUGU ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

REPRESENTATION

9/11/2015

Mr. Fitz Patrick Furah for the applicant.

The applicant is in Court.

Mr. Bwiso Charles Senior State Attorney holding brief for Ms. Lillian Nandawula State Attorney for the state.

We are ready to receive the ruling.

Ms. Margaret Kakunguru the Clerk is in Court.

Court: Ruling is delivered to the parties in open Court.

Right of Appeal is explained.

Joseph Murangira

Judge.

9/11/2015