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Why Hajji Abdallah Kitata’s Case Was Before Military Court And Not High Court (Criminal Division) Sitting At Kampala

The Applicant, Abdulla Kitata, filed an application for Bail pending a trial by a Notice of Motion stated to be brought under Articles 23(6)(a), 43(2)(b), 50(1) 120(5) and 250(4) of the Constitution of Uganda, Section 14 of Trial on indictments Act, Rules 2 and 4 of Judicature (Criminal Procedure) Application Rules and all other enabling Laws of Uganda.

Facts
The Applicant was under a trial in Uganda Versus Haji Kitata Abdulla & 12 others – Criminal Case No.UPDF/GCM/005/2018 before General Court Martial. The application further stated that there is a pending application in the (Criminal Division), namely; Misc. Cause No. 42 of 2018 – Haji Kitata Abdulla Versus Attorney General and Others in which the Applicant challenges the jurisdiction of general court martial in the above mentioned ongoing criminal trial. During the hearing, the applicant was not in court but was represented by his counsel. The respondent (Uganda) was represented by a senior state attorney Mr Kawuma. The foundation of this application is that the Applicant, a civilian, was charged and is being tried by the General Court Martial under Criminal Case No. UPDF/GCM005/2018 – Uganda versus Abdulla Kitata & 12 Others. This application basically seeks bail as an interlocutory relief pending the disposal of the main application.

Issue
Whether this application is properly before this court?

Held
In view of Section 14 of Trial on Indictments Act that states: – “(1) The High Court may at any stage in the proceedings release the Accused person on bail — to appear before the court on such a date and at such a time as is named in the bond. This section permits the High Court to release a person on bail where it has practical control over the proceedings. The proceedings must be before the High Court or under its supervision. It is my view that for any court to exercise its discretion to grant bail, it should be fully possessed with the facts and the circumstances obtaining at the pending trial. This being so, it is the Court martial that has cognizance of the matter that can hear the bail application and not the High court. That the General Court Martial being subordinate to the High Court by law doesn’t warrant the ousting of its jurisdiction by filing in the High Court before a matter is fully heard and determined. It is undue and unnecessary interference with functions of courts of Law. The proper court to file this application was the Court Martial and not the High Court and therefore the matter for application of bail was in a wrong court.