THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(ANTI-CORRUPTION DIVISION)

CRIMINAL APPLICATION NO……. OF 2024

(Arising from Chief Magistrate’s Court of Buganda Road attached to the Anti-
Corruption Division HCT-00-AC-SC-0022-2023)

MARK ONANA ……………………………………………………………s APPLICANT

VERSUS

UGANDA ……………………………………………………………………RESPONDENT

AFFIDAVIT IN REPLY TO BAIL PENDING APPEAL APPLICATION

I OKODEL SANDRIN OGWANG the Principal State Attorney P.O BOX 123 KAMPALA,
UGANDA do hereby solemnly make oath and state as follows;

1. THAT I am a male adult Ugandan of sound mind and the Principal State Attorney
from the office of the Director of Public Prosecution having worked there for ten
years and it is in that capacity I Depone this Affidavit.
2. THAT the contents of paragraph 1,2 and 3 of the applicants affidavit in support of
the notice are hereby admitted
3. THAT I have properly read and understood the Applicant’s Notice of Motion and the
affidavit in support and wish to respond there too as hereunder;
4. THAT the contents of the said application and the supporting Affidavit are full of
blatant lies and material falsehood aimed at misleading this honorable court and the
same shall be put to strict proof and the application disallowed.
5. That in respect to paragraph 4 the sentence is just and equitable as the offences of
embezzlement contrary to section 19(b)(iii) carries a maximum of 14 years as well as
the offence of causing financial loss carries 14 years and as such the sentence was
not harsh but just as he was given a sentence of 8years for count one and 3 years
for count 2.
6. THAT in reply to paragraph 5, the convict was sentenced to 8 years and 3 years by
the Chief Magistrates Court of Buganda Road for the offences of embezzlement
contrary to section 19(b) (iii) and causing financial loss contrary to section 20(1) of
the anti-corruption act 2009 and thus he is a convict
7. That in reply to paragraph 6, the Appeal filed by the Applicant is neither frivolous
nor vexious and has a high probability of success. This is not true as several
evidences was laid against the Applicant leading to his conviction and the same will
be done before this honorable court to water down the convict’s application.
(Herein attached is the copy of the judgment as Annexure marked “A” )
8. THAT in reply to paragraph 7 where the Applicant aver that there is likely to be
substantial delay in the determination of appeal is not true because Justice delayed
is justice denied, and as such we pray that this court fixes the matter for hearing.
9. THAT in reply to paragraph 8 where the Applicant contends that he is a sole
breadwinner for his family and his continued stay in custody would deter from
providing for his family basic needs. This is equally not true as the responsibilities in
a family are shared and as such the convict has a wife who shall take care of the
family however this position was not equally not the correct position as the same
was not mitigated for during the court proceeding in the Magistrate Court at
Buganda Road Anti-Corruption Court Kololo.
10. THAT in reply to paragraph 9 where the applicant avers that he has a fixed place of
abode is not true has the Applicant has not proved that he has a permanent fixed
place of abode and where the place is exactly located as well as land titles in respect
of the same.
11. THAT in reply to paragraph 10 where the Applicant contend that he will be present
whenever he is required by court and that his sureties are indeed credible is not
true and the Applicant is likely to abscond sine dire, he does not have a fixed place
of abode as well as being a convict.
12. THAT it is in the interest of justice that this bail pending appeal for the Applicant
should not be granted.
13. THAT this court has jurisdiction to entertain this matter.
14. THAT whatever I have stated herein is true and correct to the best of my knowledge
and belief.
SOWRN at Kampala this 13th day of May 2024
By the said OKODEL SANDRIN OGWANG …………………………….
DEPONENT

BEFORE ME
……………………………………………………………..
COMMISSIONER FOR OATHS/MAGISTRATE
DRWAN AND FILED
PRINCIPAL STATE ATTORNEY
P.O BOX 123 KAMPALA (U)
 THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA ROAD
ANTI-CORRUPTION DIVISION
CRIMINAL MISC. APPLICATION NO 01. 0OF 2024
Arising From High Court Criminal Appeal No 01 Of 2024
(Arising From Chief Magistrates Court Of Buganda Road Attached To Anti-
Corruption Court Kololo)
HCT-00-AC-SC–1-2024
ONANA MARK :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT
VERSUS
UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
RESPONDENT’S WRITTEN SUBMISSIONS
The application before this honourable court has been brought by way of notice of
motion supported by an affidavit in support by the application seeking bail pending
an appeal. It has been brought under Section 205 of the Magistrates Court Act
Cap 16, Section 40 of the Criminal Procedure Code Act Cap 116, and Rule 3 of
the Judicature Criminal Procedure Applications Rules S.I 13-8.
FACTS OF THE CASE
On the 26th/4/2024, Mark Onana while working with Posta Uganda, was charged at
Central police station Kampala with the offences of embezzlement contrary to
Section 19(b)(iii) of the Anti-corruption Act,2009, causing financial loss contrary
to Section 20(i) of the Anti-corruption Act, 2009. Its alleged that he purchased
computer parts from a company called vie.com and motor vehicle tyres from a
company called Uganda traders without following the rightful procedures as laid
down by the company regulations and all this cost 40,000,000/= each. The services
purported to have been procured were not supplied by both companies.
Investigations indicate that Vie.com is registered in the names of Mark Onana, the
accused and the proprietor. The matter proceeded to the chief magistrate Court of
Buganda Road Court and the accused pleaded not guilty and gave an unsworn
testimony. Both prosecution and defence didn’t file their submissions. Trial court held
that the accused was guilty of all counts. The accused sought for forgiveness from
court but during sentencing court held that he had shown no remorse. He was
sentenced to 8 years on count 1 and 3 years on count 2.
REPLY TO THE APPLICATION
My lord, we have carefully read the application of the applicant and find no
reasonable cause to warrant bail to the applicant in the circumstances.
We are also aware of the fact that the applicant has a right to apply for bail pending
appeal, however Section 204(1) Magistrates Court Act gives a right to appeal by
any person convicted on trial by a court presided by a magistrate to the high court. It
is always at the discretion of court for the grant of such application as upheld in the
case of Uganda Vs Dr. Kizza Besigye Constitutional Reference No.20 Of 2005.
Furthermore, it is important to ascertain what this court should consider in its
discretionary powers and this was established in the case of Arvind Patel Vs
Uganda CRIMINAL APPLICATION NO. 1 OF 2003 and furthermore enshrined in
the Constitution (Bail Guidelines for Courts of Judicature) (Practice)
Directions, 2022 Under Direction 19(e) laid down main considerations when
judiciously exercising its discretion as seen below;
(a) The character of the applicant;
(b) Whether the applicant is a first offender or not;
(c) Whether the offence for which the applicant was convicted involved
violence;
(d) The appeal is not frivolous and has a reasonable possibility of success;
(e) The loss incurred by the complainant or the victim;
(f) The possibility of substantial delay in the determination of the appeal; or
(g) Whether the applicant has complied with the bail conditions granted by the
trial court before the conviction of the applicant.
In the above mentioned case court upheld that “This is a discretionary
jurisdiction, which should be exercised judiciously”, hence the need for this
honourable court to make consideration into that account.
My lord, it is our prayer that since the applicant caused financial loss and embezzled
funds of the complainant coupled with the fact that he is a convict, the application be
dismissed and court finds the shortest date for his appeal.

First time offender

My lord, in the premises, it is a fact that the applicant has no evidence availed to
court in this regard. I know as a fact that the police issues certificates of criminal
record to whoever requests them to do so.
No effort was made to prove this ground. Counsel for the applicant must be aware
that police issues certificates of criminal record. This was upheld in the case of
Igamu Joanita vs. Uganda Criminal Application Number 0107 of 2013. And the
date of acquisition of such should be taken to account as such cannot be issued
after a conviction from the Chief Magistrate’s Anti-Corruption Court. ( a copy of the
judgement is hereto attached and marked as annexture “A”)
Applicant did not abscond bail in trial court.
My lord, in this case we must understand that the applicant was accorded justice
when he still was given the presumption of innocence which is a fundamental basis
of the bail in the trial court. But it is on record that the applicant is a convict and there
is no proof that he deserves to be accorded bail pending this appeal.
The case of Foundation For Human Rights Initiative vs. Attorney General,
Constitutional Appeal No.03 Of 2009 At Supreme Court Of Uganda, court stated
that ‘’society should be protected from lawlessness, the court must guard against
absconding because there may be a danger of interfering with evidence or
witnesses’’.
It would be a dangerous offer of bail to a convict given the nature of his offence since
they would temper with witnesses and evidence due to the fact that they are convicts
already.

Substantial sureties.
My lord, in this ground we would scrutinize each surety’s substantiality by
questioning the documentations proving the same.
In Odoki BJ “A Guide to Criminal Procedure in Uganda”, LDC publishers 206
(Third Edition) at page 91, it was opined that; “the court should inquire into the
worth and social position of sureties. The sureties have the means to answer for
sum involved (recognizance) and should be persons of some social standing in the
community”.
In this point, court must also be guided by the obligations of these sureties in such
bail application as enshrined under Direction 16 of the Constitution (Bail
Guidelines For Courts Of Judicature) (Practice) Directions, 2022, ignorance and
failure to oblige of which would lead to dismissal of this application.
Therefore any slight mistake or omission or act in regards to the substantiality of the
sureties produced would be to prosecution’s advantage.

Loss incurred by the complainant or victim.

My lord, according to our facts we realize that the complainant has suffered financial
loss and it has affected the complainant’s financial statements.
It is on court record that the applicant embezzled and caused financial loss to the
complainant of a tune of UGX 80,000,000/=. This has caused a great financial
implication to the complainant and its shareholders.
It would be of great risk if the applicant is awarded bail pending an appeal since it
would be of emotional stress to company shareholders who are now facing an
appeal to the state and also seek justice before this honourable court
Possibility of substantial delay
My lord, it is very important for us to understand that this application is subject to an
appeal before this honourable court, hence pending a hearing date for the said
appeal.
The ground raised by the applicant is not reasonable due to the fact that we all
entrust this honourable court to fix the appeal in the shortest and nearest reasonable
date possible. The fact that the applicant relied on such ground can easily be cured
by this court’s administration to see that the appeal before it is fixed as early as
possible.
I therefore pray that this court avoids excuses brought by such application on basis
of possible delay of the appeal by fixing the matter at the nearest possible date in the
interest of justice for all parties.

Sole bread winner of family.

My lord, the applicant relied on the fact that his is the sole bread winner of his family
in this application for bail pending an appeal. This is a very flimsy ground by the
applicant and not substantial at all.
The applicant has a family taken care of by his other relatives and family members
who would see to it that they are well enough. It would be a miscarriage of justice to
rely on such a ground otherwise he should have considered this fact before
committing the offences he is convicted of.
In this we shall be guided by the Article 28 (3) (e) of The 1995 Constitution of the
Republic of Uganda As Amended which calls for the need to balance the rights of
the applicant and the interests of justice. And the same position was reiterated in the
case of Constitutional Appeal No. 03 Of 2009 Between Foundation for Human Rights
Initiative Vs Attorney General court stated that “Society should be protected from
lawlessness. The court must guard against absconding because they may be a danger of
interfering with the evidence of witnesses where an accused person is charged with a serious
offence whose punishment attracts a death penalty at un considering the status of and position
in his employment

In conclusion;
My Lord, guided by the case of Human Rights Initiative Vs. Attorney General
Supra Supreme Court At Page 14 it was stated that; “ with respect to bail
matters it therefore follows that whereas court is supposed to bear in mind the
rights of an accused person when considering his or her bail, it should not
lose sight of the needs of society to prevent and punish crimes committed
within its midst that Article 126 of the 1995 constitution imposes on court the
duty to ensure that they do not only consider the rights of an accused person
applying for bail. Rather courts should also consider the interest of the society
at large. This in turn calls for the need to balance the competing interest of the
accused person on the other hand. To ensure this balance, courts must at all
times when dealing with a bail application bear in mind this fundamental
aspect under Article 126 of the 1995 constitution with regard to exercise of
judicial power”
Basing on the above case bail must be considered by taking into account the fact
that the accused is answerable for his crime towards the complainant or victim.
My lord, the respondent verily believes that this honourable court shall take into
consideration the nature of the offence and the principle of deterrence in criminal law
to the effect that convicts must be in lawfully gazetted areas away from society to
prevent further criminal offences while serving for the same crimes.
Finally we submit that in the event court is inclined to grant bail then court should
award stringent conditions on both the applicant and his sureties bearing in mind the
fact that the applicant is a convict and capable of interfering with any evidences or
witnesses.
My lord it is in the interest of justice that the applicants have not presented any
reasonable ground for grant of bail. We pray that this honourable court dismisses
this application and fix the appeal in the nearest date possible so that the matter is
determined and justice accorded to both sides.
We so pray,
Dated at Kampala this 12th of May, 2024.

…………………………………………..
OGWANG SANDRIN AYAGABAGA
STATE ATTORNEY- ANTI CORRUPTION COURT
FOR; DIRECTOR PUBLIC PROSECUTION.