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Omusugu & Anor v Uganda (Criminal Miscellaneous Application No.94 of 2015) [2015] UGHCCRD 59 (23 December 2015)
- Citation
- [2015] UGHCCRD 59
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- HC: Criminal Division (Uganda)
- Panel
- Murangira, J
- Case number
- Criminal Miscellaneous Application No.94 of 2015
- Language
- English
More details
- Court
- HC: Criminal Division (Uganda)
- Panel
- Murangira, J
- Case number
- Criminal Miscellaneous Application No.94 of 2015
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that although the applicants had been in custody for two years and raised constitutional arguments for bail, they failed to rebut the respondent's affidavit challenging their fixed places of abode, substantial sureties, and dependants. The court considered the seriousness of the charge—aggravated robbery involving significant sums of money and gold—and the fact that the applicants were now aware of the evidence against them. The court concluded that there was a high risk the applicants would abscond if granted bail. Exercising its discretion, the court held that the interests of justice required denial of bail, and dismissed the application.
Court disposition
application dismissed
Orders
- The application for bail pending trial is dismissed.
02
Material facts
Parties
Omusugu Daniel
Applicant Counsel: Moses InguraMunikwa Joseph
Applicant Counsel: Moses InguraUganda
Respondent Counsel: Nandawula LillianAmounts and remedies
- Amount Allegedly Robbed (uganda Shillings): UGX 11,000,000
- Value of Gold Allegedly Robbed (us Dollars): USD 3,500
03
Procedural history
Posture
Criminal Miscellaneous Application / Bail Application Pending Trial
04
Questions and positions
Legal issues
- 01
Whether the applicants should be granted bail pending trial by the High Court.
- 02
Whether the applicants have demonstrated sufficient grounds for bail under the Constitution and the Trial on Indictments Act.
- 03
Whether the risk of absconding outweighs the applicants' right to bail.
Party arguments
- Applicant
- The applicants argued that they have been in custody for two years without trial, that it is their constitutional right to be released on bail, and that their families, including young children, are suffering due to their continued detention. They further submitted that the offence is only bailable by the High Court and that the delay in trial is prejudicial to them.
- Respondent
- The respondent opposed the application on grounds that the applicants failed to show fixed places of abode, did not provide particulars of substantial sureties, and did not prove they have dependants or exceptional circumstances. The respondent argued that the applicants are likely to abscond if released on bail, especially given the seriousness of the charges and the evidence against them.
05
Court’s reasoning
Legal principles
- 01
Article 23(6) of the Constitution of Uganda; Constitutional Reference No. 20 of 2005, Uganda (DPP) v. Col (Rtd) Dr. Kiiza Besigye
Courts have discretion to grant or deny bail under Article 23(6) of the Constitution.
- 02
Trite law on affidavit evidence
Unrebutted facts in affidavits are presumed admitted.
- 03
Trial on Indictments Act, Cap. 23; case law
The seriousness of the offence and likelihood of absconding are relevant factors in bail applications.
06
Ratio, limits and disposition
Ratio decidendi
The court found that although the applicants had been in custody for two years and raised constitutional arguments for bail, they failed to rebut the respondent's affidavit challenging their fixed places of abode, substantial sureties, and dependants. The court considered the seriousness of the charge—aggravated robbery involving significant sums of money and gold—and the fact that the applicants were now aware of the evidence against them. The court concluded that there was a high risk the applicants would abscond if granted bail. Exercising its discretion, the court held that the interests of justice required denial of bail, and dismissed the application.
Obiter and limits
- When a party raises facts in an affidavit and they are not rebutted, such facts are presumed admitted.
- Counsel for the applicants risked adducing evidence from the bar, which is not permitted in law.
Court disposition
application dismissed
- The application for bail pending trial is dismissed.
Source and reliance status
HC: Criminal Division (Uganda)
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
HC: Criminal Division (Uganda)
Judgment
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CRIMINAL DIVISION
CRIMINAL MISCELLANEOUS APPLICATION NO.94 OF 2015
(Arising from Makindye Magistrate’s Court, Criminal Case No. 119 of 2013)
1. OMUSUGU DANIEL
2. MUNIKWA JOSEPH ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS
VERSUS
UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
RULING BY HON. MR. JUSTICE JOSEPH MURANGIRA
1. Introduction
The applicants are represented by Mr. Moses Ingura from M/S Fredrick Kangwamu & Co. Advocates. Whereas the respondent is represented by M/S Nandawula Lillian State Attorney working with the Directorate of Public Prosecutions.
1. This application is brought by Notice of Motion and supported by an affidavit that was sworn by the applicants on 17th November,2015. This application is brought under Article 23 (6) (a), (c) of the Constitution of the Republic of Uganda, 1995, and Section 14 of the Trial on Indictments Act, Cap. 23, Laws of Uganda.
Badly
This application is for bail pending the applicants’ trial. This application is seeking the following Orders; that:-
1. The applicants be granted bail pending trial in the High Court.
2. The applicants have been in custody for a period of two (2) years without trial.
3. It is the accused’s Constitutional right to be released on bail pending trial.
4. It is in the interest of justice that the applicants be granted bail.
This application; further, is based on the following grounds; that:-
1. The offence with which the applicants are charged with is only bailable by High Court.
2. From May, 2013 when the applicants were committed, the trial has not commenced.
3. The applicants are young persons with young families that badly need their help as they are the only bread winners.
4. The education, welfare and parental care of their innocent children is at stake and if the applicants are finally found innocent, their families will have innocently suffered.
5. The applicants will highly be prejudiced if they are not granted bail.
6. The respondent filed in Court an affidavit in reply based on the following grounds; that:- 7. The applicants have not shown that they have fixed places of abode having not attached any documentary proof.
8. The applicants have not shown that they have substantial sureties having not attached their particulars.
9. The applicants have not shown that they have dependants having not attached any documentary proof.
10. The applicants have not shown that exceptional circumstances exist in the favour.
It is noted that the applicants never filed any affidavits in rejoinder to this application and in rebuttal to the respondent’s affidavit in reply. It is trite law that when a party raises certain facts in an affidavit, and the same is not rebutted in the affidavit in reply, it is presumed that the said facts were admitted by the opposite party. In his submissions, Counsel for the applicants tendered to cover the aforestated aspect. However, in doing so, Counsel for the applicants ran a risk of adducing evidence from the bar, which is not allowed in law.
The law regarding consideration of bail applications pending trial is settled. In the case of Constitutional reference No.20 of 2005, Uganda (DPP) -VS- Col (Rtd) Dr. Kiiza Besigye, the Constitutional Court of Uganda held that:-
“Under Article 23 (6) of the Constitution, Courts have the discretion to grant or not to grant bail.”
See also the case of Foundation for Human Rights Initiative –VS- Attorney
General Constitutional Petition No.20 of 2006.
In the instant application, I have considered the submissions by Counsel for
the parties for and against this application. I have also considered the
grounds under which this application is based on and the grounds in the
affidavit in reply. I had also the benefit of perusing the summary of the
case against the applicants and found them scaring enough. And since the
applicants now knew the evidence that is going to be adduced against
them, and for the facts that they are charged with aggravated robbery of
Ug. Shs. 11,000,000/= (eleven million shillings) and 50 grams of Gold worth
US$ 3500, the applicants are likely to jump bail and abscond from trial.
Therefore, this is a case where I have to exercise my discretion and in the
interest of justice to decline granting bail to the applicants.
Accordingly, therefore, I find that this application has no merit.
It is accordingly dismissed.
Dated at Kampala this 23rd day of December, 2015.
Joseph Murangira.
Judge.
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CRIMINAL DIVISION
CRIMINAL MISCELLANEOUS APPLICATION NO.94 OF 2015
(Arising from Makindye Magistrate’s Court, Criminal Case No. 119 of 2013)
1. OMUSUGU DANIEL
2. MUNIKWA JOSEPH ::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS
VERSUS
UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
PRESENTATION
The applicants are in Court.
Their lawyer is absent.
The State Attorney is absent.
Ms. Lillian Kagaso, the Clerk is in Court.
Court: Ruling is delivered to the applicants in open Court.
Joseph Murangira
Judge
23/12/15
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