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The Discretion Of Court To Grant Bail in the case of Kanyamunyu & 2 Ors V Uganda

Judgment on 10th day of January 2017.

The applicants were seeking for bail pending hearing.

Brief facts

The back ground facts to the application are that the applicants are jointly charged before the Chief Magistrate’s Court of Nakawa criminal case No. AA- 031 of 2016 under section 188 & 189 of the Penal Code Act, Cap 120 with the offence of murder of Akena Kenneth Watmon. Investigations in the criminal case are ongoing.  In the meantime, the applicants are on remand pending trial. Mr. Kanyamunyu Mathew Muyogoma, Miss Munwangari  Cynthia and Mr. Kanyamunyu Joseph, (hereinafter called respectively the 1st, 2nd and 3rd applicants) filed High Court criminal miscellaneous application No.0369 of 2016 under Article 23 (b), (a) and 28 (3) (a) of the Constitution of Uganda, 1995 and section 14 of the Trial on Indictment Act, Cap. 23 alongside Rule 2 of the Criminal Procedure (Application) Rules seeking release on bail. The grounds for the application are, Applicants are jointly charged with the offence of murder that is triable and bailable by the court, they are responsible members of society, the applicants have at all material times been law abiding citizens and have never been charged and/or convicted with any criminal offence, the 3rd applicant is married with a family whereof he is the sole bread winner, the applicants have fixed places of abode in Kampala District within the jurisdiction of this honorable court, and they shall not abscond if released on bail and have substantial sureties to ensure they shall attend court at all material times.

The application is opposed on the following grounds:

  • Applicants have no fixed places of abode,
  • They have failed to prove substantial sureties,
  • Applicants have not been committed to High Court, for investigations are ongoing thus the likelihood to interfere with witnesses,
  • The 2nd applicant’s status in Uganda is unknown,
  • Applicants have no exceptional circumstances in their favor,
  • Applicants did not voluntarily reported to police.

Held

The law applicable to bail is settled in the case of Uganda (DPP) Vs. Col (RTD) Dr. Kizza Besigye, Constitution reference No. 20 of 2005.  The accused has the right to apply to court to be released on bail and the court has the discretion whether or not to grant bail under Article 23 (6) (a) of the Constitution of Uganda, 1995 which provides that the  person is entitled to apply to the court to be released on bail and the court may grant that person bail on such conditions as the court considers reasonable – See also Malibano Abdu and Another V Uganda Criminal Miscellaneous application No. 5 of 2008 (High Court Kampala) unreported.

Capital offences such as murder are bailable. However, whether or not the court is inclined to exercise the discretion whether to grant or not grant bail is a matter depending on circumstances of each particular case to be weighed on individual merits or demerits of the case. It is established that release on bail is not automatic.

The application to grant bail was dismissed because the accused didn’t prove to have a permanent place of abode and this increases chances of absconding. With regard to all three applicants, there are no exceptional circumstances presented. The offence of murder is a grave offence.  Therefore there is a need to give the prosecution the benefit of doubt.