At Jafarali and Company Advocates, we are committed to walk with you through the criminal justice system. In this Article, we focus on the right to Bail and Bond.
1. Introduction
Until proven guilty, a person is presumed innocent of any criminal charge. Article 49(1)(h) of The Constitution of Kenya ,2010 gives an arrested person the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. The aim of bail and bond is to ensure that an accused person attends trial without being in police custody or remand. This article, examines the right to bail and bond, while elaborating the process towards securing bail for an accused person.
Bail is the release from custody of an accused person pending trial on the promise that; Money or property directed to be deposited in court will be forfeited in addition to the issuance of arrest warrants against the accused if he/she absconds court. On the other hand, Bond is an undertaking, with or without sureties or security, entered into by an accused person in custody under which he or she binds him or herself to comply with the conditions of the undertaking and if in default of such compliance to pay the amount of bail or other sum fixed in the bond.
Every accused person has the right to liberty. Pre-trial detention is a measure of last result. An accused person only needs to assure the court that they will attend trial when scheduled to be released on reasonable terms. In the section below, we discuss the different types of bail available and how they can be secured.
2. Types of Bail
The right to bail has a threefold application, when a person anticipates arrest, pending the trial process and pending appeal. In this section we will look at the circumstances upon which, each of this type will apply.
2.1 Bail Pending Trial
Immediately an accused person has been arrested they are entitled to Bail pending trial. This can be granted in two ways, either at the police station or by a Judge or magistrate in court.
2.1.1 Bail at the Police Station.
Upon arrest, a person should be produced in court within reasonable time. However, where it is impractical to produce the arrested person within reasonable time the officer in charge of the station (OCS) has discretion to grant bail at the police station. This discretion is only available to non-capital offences and upon satisfaction that the person will appear in court at the specified time. Where a person is arrested with a warrant, the warrant will expressly state whether they can be admitted to bail. Where the police initiate the arrest, they are at liberty to decide whether to grant bail or not.
2.1.2 Bail by the magistrate court
The court can grant bail at any stage of trial proceedings. Upon application by the accused person, the prosecution is allowed to object and give sufficient reasons as to why the accused person should not be granted bail. The court will thereafter make a ruling on merit, as to whether to grant bail or not. Normally, the court will consider; the nature of the offense, the severity of the punishment, the strength of the prosecution’s case, the antecedent character of the accused and finally the likelihood of the accused person to interfere with witnesses.
2.2 Bail Pending Appeal
Bail pending appeal does not exist as of right. It is issued in exceptional circumstances. Unlike in pre-trial bail, here, the presumption of innocence is not operative, the court will therefore proceed on a presumption that the accused had been properly convicted. The accused person ought to prove to the court why he/she should be granted bail. Notably, this type of bail only applies to offences that were originally billable. The applicant therefore needs to show to court that the appeal has very high chances of success. Where an accused is denied bail pending appeal, the hearing of the appeal is to be given a priority.
2.3 Anticipatory Bail
Also known as bail pending arrest. This type of bail is not directly provided for under the Kenyan law, it is therefore somewhat controversial and contentious, the applicant seeks for orders (from court) to be admitted to bail and it’s issued before the person is arrested. Any person who is suspicious that they will be arrested unjustly is eligible to this bail. It is important to note that, a person who applies for this bail, ought to convince the court that they are about to be unjustly arrested.
3. BOND REQUIREMENTS
When considering the suitability of a proposed surety, the court will interrogate the financial status of the accused person, the accused person’s character and relationship with members of the public, if the accused person has a conviction record and any other relevant factors as the judicial officer may deem fit. The common practice in the Kenyan court has been to deposit; title ownership documents, a log book or a pay slip. The following part delves into what is specifically needed when depositing the mentioned documents.
3.1 Title deed
- Original title deed
- Valuation report from a licensed valuer
- Certificate of official search and payment receipt from the Lands offices
- Two colored passport photographs (of the owner)
- Copy of Pin certificate (KRA)
- Original and copy of Identity card
Notably, during submission of the above documents to the court, the owner should be present for examination and authentication.
3.2 Log Book
- The Original logbook
- Valuation report from a licensed valuer
- Copy of records and copy of payment receipt
- Two coloured passport photographs (of the registered owner)
- Copy of pin certificate
- Motor vehicle or motorcycle itself
- Original and copy of Identity card and the owner in person
3.3 Pay slip
- Original current pay slip
- Introduction letter from the employer
- Binding letter from a SACCO
- Two colored passports photographs
- Copy of pin certificate
- Original and copy of Identification cared
3.4 Personal Bond
- Original and copy of identification card
- Letter from area chief confirming that the accused is well known and has an established area of residence in that location
- Letter from the village elder
- Copy of pin certificate
- Two coloured photographs
There are instances where an accused will not be eligible to Bail terms;
- Where one is a flight risk- A foreigner who does not have a fixed abode in Kenya is presumed as a flight risk. For such a person it will no be easy to guarantee their attendance for trial if Bail or bond is granted. In circumstances where Kenya the court does not have any extradition treaty with the foreigner’s country, it becomes even more difficult for the prosecution to proceed should they abscond court.
- Where the accused is likely to interfere with witnesses-If there is strong evidence that the accused will interfere with the witnesses of the prosecution once released on bond or bail, The court will be justified to deny them bail or bond.
- Protect the accused –There are instances where the safety of the accused person may not be guaranteed due the rage from members of the public who may attempt to lynch him/her.In such instances, the accused can be detained.
- For Public order, peace or security-Where the release of the accused person may ignite the public to disturb order or undermine public peace due to the gravity of the offences committed, the court will be required to deny the accused person bail.
Conclusion.
Bail and Bond rights are very important in the criminal justice system in Kenya to the extent that they have been provided for under the Bill of rights in the constitution of Kenya 2010.The goal is to ensure that accused persons are protected and not condemned unheard. Additionally, there exists a bail and bond policy guideline, that aims at streamlining the process and ensuring compliance.
Contribution by: Benard Kabi
Benard Kabi is a legal Assistant/Researcher at the firm. Currently, he is a trainee Advocate at the Kenya School of law.