Wakilii

Obey & Ors v Uganda (Misc Application No's. 045, 046, And 047 2015)

High Court · [2015] UGHCCRD 43 · 2015 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Bail applications following commitment to High Court on charges of causing financial loss, abuse of office, corruption, false accounting and conspiracy to defraud
Decision
Applications dismissed; applicants to remain in custody pending trial

Observed later treatment

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Holding

Held that bail applications dismissed. The court found that the applicants failed to prove on a balance of probabilities that exceptional circumstances existed justifying their release. The court considered the gravity of the offences involving 88 billion shillings, unchallenged allegations that applicants had bribed investigators in an earlier similar case that was dismissed, the likelihood of interference with witnesses who were subordinates or acquaintances of the applicants, the inadequacy of the proposed sureties (some retired with reduced resources, others employees of the applicants), and the public interest in protecting the integrity of the justice system in a high-profile economic crime prosecution.

Outcome

Applications dismissed; applicants to remain in custody pending trial

Facts

Three applicants — Christopher Obey, Jimmy Lwamafa and Steven Kiwanuka Kkunsa — were jointly charged with multiple counts of causing financial loss, abuse of office, corruption, false accounting and conspiracy to defraud involving 88 billion shillings relating to pension funds. After committal to the High Court, they applied for bail. All three had previously been charged in a similar case (Criminal Case No. 10 of 2013 involving 165 billion shillings) in which they had answered bail, but that case was dismissed for want of prosecution amid newspaper reports alleging bribery of investigators. Lwamafa and Kkunsa claimed advanced age (60 and 57 years respectively) and health issues as exceptional circumstances. The applicants proposed sureties, some of whom had stood for them in the dismissed case. The State opposed the applications on grounds that the applicants were likely to interfere with witnesses (who were their former subordinates), had allegedly bribed investigators in the earlier case, the offences were grave involving large sums, and the proposed sureties were inadequate (some retired, others employees of the applicants).

Issues

  1. Whether the applicants should be granted bail pending trial on charges of causing financial loss, abuse of office, corruption, false accounting and conspiracy to defraud.
  2. Whether exceptional circumstances exist under s.15(1) of the Trial on Indictments Act justifying the applicants' release on bail.
  3. Whether the applicants would, if released on bail, stand their trial.
  4. Whether the applicants would interfere with State witnesses if released on bail.
  5. Whether the release of the applicants on bail would be in the public interest.

Orders

  • Applications for bail dismissed.
  • The Officer in Charge of Luzira Prison is ordered to ensure that the accused persons are taken to see a doctor should they request.

Rules and key headnotes

Bail — Right to Bail — Non-derogability — Constitution Article 23
The right to apply for bail is not non-derogable. Every person charged with a criminal offence may apply for release on bail at any time upon and after being charged, and the court may in its discretion grant the application irrespective of the class of criminal offence, but the grant of bail remains a matter of judicial discretion.
Bail — Overriding Principle — Interests of Justice
In exercising its discretion to grant or refuse bail, the court addresses one all-embracing issue: whether the interests of justice will be prejudiced if the accused is granted bail. In this context, it must be borne in mind that if an accused is refused bail in circumstances where he would stand his trial, the interests of justice are also prejudiced.
Bail — Subsidiary Considerations — Factors to Assess
In determining whether the interests of justice will be prejudiced by granting bail, the court must consider four subsidiary questions: whether the accused will stand trial if released; whether the accused will interfere with State witnesses; whether the accused will commit further crimes; and whether the release will be in the public interest.
Bail — Exceptional Circumstances — Economic Crimes — Suitability of Sureties
Sureties in economic crime cases involving large sums of money must demonstrate not only the ability to ensure that the accused answers bail, but also the ability to pay up the recognisance they will be required to sign. Bail terms are to reflect the realities of the case, including the value of the subject matter. Persons who are retired (with reduced mobility and income), those doing undefined businesses, and those on the applicant's payroll are not suitable sureties in such cases.
Bail Applications — Nature of Proceedings — Standard of Proof
Bail proceedings are sui generis. The State is not obliged to produce evidence in the true sense and is not bound by formality. The court may take into account whatever information is placed before it in order to form what is essentially an opinion or value judgment of what an uncertain future holds. The court must prophesy or prognosticate, and may have regard to whatever is placed before it to decide the matter.
Affidavit Evidence — Unrebutted Averments — Effect
Where allegations are made by affidavit and the applicants do not require the presence of the deponent for cross-examination purposes and file no sworn rebuttals, the court is to take the unrebutted averments in the affidavit as unchallenged.
Public Interest — Judicial Decisions — Constitution Article 126
Public interest is a relevant and valid consideration in judicial decisions. Article 126 of the Constitution provides that judicial power shall be exercised in conformity with law and with the values, norms and aspirations of the people. In considering bail, the court must balance the constitutional rights of the applicant against the needs of society to be protected from lawlessness.

Legislation cited (4)

Cases cited (5)

  • Uganda v Col Dr Kiiza Besigye (Constitutional Reference No. 20 of 2005)
  • Akbar Godi v Uganda (Misc Application No. 20 of 2009)
  • Kashaka Muhanguzi v Uganda (Criminal Reference No. 797 of 2014)
  • Attorney General v Tumushabe (2008) 2 EALR 28
  • Co-operative Bank Ltd v Vincent Kasaijja (HCCS No. 586 of 1994)

Full judgment

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

Obey & Ors v Uganda (Misc Application No's. 045, 046, And 047_2015) [2015] UGHCCRD 43 (30 August 2015)
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.