Wakilii

Nduhukire Nasser v Uganda (Criminal Application 31 of 2024)

High Court · [2024] UGHCICD 16 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for bail pending trial on charges of aggravated trafficking in children and defilement
Decision
Applicant released on bail pending trial on conditions set by the Court

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the applicant satisfied the requirements for bail under the Constitution and the Trial on Indictments Act. The court found that the applicant had a fixed place of abode within the jurisdiction and presented substantial sureties. The prosecution failed to adduce sufficient evidence to demonstrate that the applicant would abscond, interfere with witnesses, or pose a danger to the community. The court emphasised that bail should not be refused merely as punishment and that the presumption of innocence applies. The court also noted that proof of exceptional circumstances is not mandatory for granting bail and that the court retains discretion even for grave offences. Application granted with conditions including cash bail, non-cash bonds, passport deposit, travel restrictions, and monthly reporting.

Outcome

Applicant released on bail pending trial on conditions set by the Court

Facts

The applicant, Nduhukire Nasser, is jointly charged with Ateete Promise in Count 1 with aggravated trafficking in children under the Prevention of Trafficking in Persons Act, and alone in Count 2 with defilement under the Penal Code Act. The offences allegedly occurred between 3 May 2024 and 27 May 2024 in Kampala and Wakiso Districts, involving a 16-year-old girl, Namanya Nicole. The applicant states he was kidnapped in Nairobi on 20 September 2024 and returned to Uganda, then detained at Kira Road Police Station and subsequently remanded to Luzira Prison on 23 September 2024. The prosecution opposed bail, alleging the applicant evaded arrest in June 2024 by escaping through the back door of his premises and fleeing to Kenya through ungazetted border points, and was only arrested at Malaba in Tororo District on 21 September 2024. The prosecution also alleged the applicant had another pending criminal case at Kira Road Police Station (GEF 194/2024).

Issues

  1. Whether the applicant meets the grounds for grant of bail under Article 23(6)(a) of the Constitution and Section 15 and 16 of the Trial on Indictments Act.
  2. Whether the applicant has a fixed place of abode within the jurisdiction of the Court.
  3. Whether the applicant has substantial sureties to undertake that he shall comply with bail conditions.
  4. Whether the applicant will abscond if released on bail.

Orders

  • The application is allowed and the applicant is granted bail.
  • The applicant shall execute cash bail of three million Uganda shillings (UGX 3,000,000).
  • Each of the applicant's sureties shall execute a non-cash bond of fifty million Uganda shillings (UGX 50,000,000), which shall be forfeited if the applicant breaches bail terms and absconds.
  • The applicant's passport shall be called for by the Court's Deputy Registrar and deposited in his custody for safekeeping.
  • The applicant shall not travel out of the country without permission from the Court to be issued if required by the Deputy Registrar. Upon return, the passport shall be returned to the custody of the Deputy Registrar.
  • The Deputy Registrar shall notify the Immigration authorities of the order limiting the applicant's movement abroad and the conditions thereof.
  • The applicant shall report to the Deputy Registrar once a month from the date of his release; subsequent reporting dates shall be indicated on his bail/bond form but shall not exceed six (6) months.
  • The applicant shall attend trial when required.

Rules and key headnotes

Bail — Court's Discretion — Exceptional Circumstances Not Mandatory
The court retains discretion to grant bail even in the absence of exceptional circumstances listed under Section 16(3) of the Trial on Indictments Act. The use of the word 'may' in Section 15(1) of the Trial on Indictments Act indicates that the High Court retains discretion to either grant or not grant bail even where exceptional circumstances are not proved in respect of listed offences.
Constitutional Rights — Right to Bail — Presumption of Innocence
An accused person has a fundamental right to apply for bail under Article 23(6)(a) of the Constitution and is presumed innocent until proven guilty under Article 28(3)(a). The applicant should not be deprived of his freedom unreasonably, and bail should not be refused merely as punishment as this would conflict with the presumption of innocence.
Bail — Refusal Based on Allegations — Need for Substantiation
The refusal to grant bail should not be based on mere allegations. The grounds must be substantiated with credible evidence. Courts must act on tangible credible evidence, not on generalised presumptions or suppositions.
Bail — Fixed Place of Abode — Standard of Proof
A letter of introduction from an LC1 Chairperson confirming that an applicant is a resident of a particular local council area, together with a valid National ID, is sufficient to establish that an applicant has a fixed place of abode within the jurisdiction of the court. Production of a certificate of land title is not mandatory.
Bail — Substantiality of Sureties — Assessment Criteria
In determining the substantiality of sureties, the court considers the age of the surety, the work and residence address of the surety, character and antecedents of the surety, and the relationship of the surety to the accused person. Sureties who are employed, have fixed places of abode within the jurisdiction, and are related to the applicant satisfy the requirement of substantiality.
Bail — Pending Charges — General Enquiry Files
Courts are guided by the previous record of the accused having jumped bail, not the possibility of future charges that have not even been preferred or sanctioned. Reference to a 'GEF' (General Enquiry File) indicates that police are still conducting preliminary inquiries to determine whether there is a predicate offence, which may or may not result in charging the suspect. Unsubstantiated allegations of other pending charges cannot form a basis to refuse bail.
Constitutional Rights — Balancing Individual Rights and Societal Interests
In bail matters, the court must balance the rights of the accused person with the interests of society to prevent and punish crimes. The court should bear in mind the needs and interests of society at large while ensuring the rights of the accused are not unreasonably curtailed.

Legislation cited (16)

Cases cited (15)

  • Ateete Promise v Uganda (Miscellaneous Application No. 0025 of 2024)
  • Ms Quality Uganda Limited T/a Quality Supermarket v Uganda Performing Rights Society (UPRS) & 4 Others (Civil Suit No. 0444 of 2019)
  • Musoke Mike & Anor v Kulumba James (Revision Cause No. 0009 of 2015)
  • Makulo International Ltd v His Eminence Cardinal Nsubuga & Another [1982] HCB 11
  • Igomu v Uganda (Criminal Miscellaneous Application No. 01017 of 2013)
  • Foundation for Human Rights Initiative v Attorney General (Constitutional Petition No. 0020 of 2006)
  • Tigawalana Bokoli Ikobo v Uganda (Criminal Application No. 0023 of 2023)
  • Obey Christopher & Others v Uganda (Miscellaneous Application Nos. 0045, 0046 and 0047 of 2015)
  • Chelimo & Others v Uganda (Criminal Miscellaneous Application No. 0009 of 2023)
  • Col Rtd Dr Kizza Besigye v Attorney General (Constitutional Reference No. 0020 of 2005)
  • Uganda v Rtd Col Dr Kiiza Besigye (Constitutional Reference No. 20 of 2005)
  • Foundation for Human Rights Initiatives v Attorney General (Constitutional Appeal No. 3 of 2009)
  • Mugisha Ronald v Uganda (Criminal Miscellaneous Application No. 50 of 2018)
  • Tumwirukire Grace v Uganda (Criminal Miscellaneous Application No. 0094 of 2019)
  • Panjur v. R (EA)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Nduhukire Nasser v Uganda (Criminal Application 31 of 2024) [2024] UGHCICD 16 (18 December 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.