Kampala, Uganda | THE INDEPENDENT | The murder case of former Makerere University medical student, Desire Mirembe will proceed in Mukono High court without the prime suspect, Mathew Kirabo. Mukono High Court Judge, Henry Kaweesa Isabirye delivered the ruling on Wednesday following an application by State Attorney, Happiness Ainebyona to proceed with the matter without Kirabo.
She asked the High court to wave Kirabo’s right to appear in line with Article 28(5) of the constitution. “My Lord, we are making an application to have criminal case number 434/2015 to proceed in the absence of the suspect while relying on Article 28 (5) of the constitution, section 14&13 of the Judicature Act, and section 14 of the Trail Act,” she said.
Article 28 (5) of the constitution allows the court to proceed without the accused who makes it hard for the trial to continue. While taking court down memory lane since the case started, the state told the court that 13 witnesses had already testified on behalf of the state.
She explained that the respondent (Kirabo) last appeared in court on October 29, 2021, when the matter was adjourned to November 3. The sureties and his lawyers have since maintained that they last saw the respondent on November 1, 2021. Since then, the prosecution case has stalled. The court issued an arrest warrant for the suspect who is still at large.
“It is from that background that we are filing this application while attaching an affidavit of the police officer who enforced the arrest warrant to allow us to proceed. The respondent denied himself the chance to be present by absconding,” she said. She then asked the court to rely on the principles applied in a similar case of Uganda Vs Hon. Herbert Kabafunzaki, where 15 witnesses had testified and the accused person jumped bail.
“The court granted the state’s application since it is against public policy to allow the frustration of court proceedings by the accused person who has chosen to abscond. The accused was convicted in his absence and the sentence was passed. We pray that this court is guided by this same authority to order the trial of the accused person continue in his absence” she argued.
The defense lawyer Ali Hassan Kato objected to the application on grounds that it was incompetent. “Rule 2 of the Judicature Act states that all applications to the High court be made in writing and where it is necessary, they shall be supported by an affidavit. My lord the affidavit attached to the motion is not in support of, but rather an affidavit of proof of executing the warrant of arrest,” he said.
He referred to the case of Damuilra Abudu Vs Mss xsaovo ltd of 46/2021 where the judge stated that an affidavit is an accompaniment of application by notice of motion but not separate like the state did. After considerably examining the submissions, Justice Henry Kaweesa Isabirye allowed the prosecutor to continue with the matter in the absence of the accused person.
“…This trail has already been frustrated. According to the defense’s arguments, the affidavit clearly states some of the issues presented in the application by the state. The state’s application is granted. Therefore, the trial will continue in the absence of the respondent” he ruled.
He however noted that he was adjourning the trial until further notice when the judiciary avails funds for the case. Justice Kaweesa said that the court reduced funds to hold the trial for 40 days, which has not been the case. “This matter shall therefore be taken to the Court Registrar who will in turn schedule the case upon receiving the funds.”
Kirabo is suspected to have murdered her fiancé Desire Mirembe,19, on July 10, 2015, and dumped her body in Lugazi Sugarcane plantations in Buikwe district where it was found on July 11, 2015. Kirabo confessed to the murder and was charged in Jinja High Court, remanded to Nalufenya Prison in Jinja.
The case was then moved to Mukono high court on the instructions of the then principal judge Yorokamu Bawine after the state complained that the crime had been committed in the Mukono jurisdiction. On October 6, the High Court in Mukono finally started hearing the case after 6 years.