By Amakobe Sidney

An arrested person has 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.” (Article 49(1)(h) of the Constitution of Kenya 2010). 

“A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.” Article 49(2) of the Constitution of Kenya 2010.

What is Bail

Bail is an agreement between an accused person or her sureties and the court that the accused person will attend court when required, and that should the accused person abscond, in addition to the court issuing warrants of arrest, a sum of money or property directed by the court to be deposited, will be forfeited to the court.

What is Bond

Bond is an undertaking, with or without sureties or security, entered into by an accused person in custody under which she binds herself to comply with the conditions of the undertaking and if she does not comply, to pay the amount of bail or other sum fixed in the bond.

What is Security?

Security is a sum of money pledged in exchange for the release of an arrested or accused person as a guarantee of that person’s appearance for trial.

What is a Surety?

A Surety is a person who undertakes to ensure that an accused person will appear in court and abide by bail conditions. The surety puts up security, such as money or title to a property, which can be forfeited to the court if the accused person fails to appear in court.

General Principles Guiding the Granting of Bail

  • Article 50(2) of the Constitution provides for the presumption of innocence until proven guilty.
  • Accused person’s Right to Liberty.
  • Accused person’s obligation to attend trial.
  • Right to reasonable Bail and Bond terms.
  • Bail determination must balance the rights of the accused persons and the interest of justice.
  • Consideration for the rights and views of victims.

Can the Police Grant Bail/ Bond?

The Criminal Procedure Code (CPC) empowers an officer in charge of a police station to release a suspect on either:

  • Cash bail with sureties
  • Cash bail without sureties
  • Free bond

As a general rule, the Police Force Standing Orders require the officer in charge of a police station to release any person arrested on a minor charge on the security of cash bail unless the officer has good grounds for believing that the arrested person will not attend court when required to do so.

Which Laws deal with Bail/ Bond

Children Act: empowers courts to grant bail to child offenders pending their appearance before a Children’s court (Section 185) 

The Prevention of Terrorism Act: provides that the rights of an arrested person may be limited to ensure the preservation of national security

The National Police Service Act: gives power to an investigating Police Officer to require any person to execute a bond in such sum and in such form as may be required

What does the court consider in granting Bail/ Bond

  1. The nature of the offence that the accused is charged with. The accused may not want to attend court if the offence is serious.
  2. The seriousness of the punishment if the accused person is found guilty. If the punishment is harsh, then the accused may not want to attend court.
  3. The strength of the prosecution case. If the prosecution case is strong eg. if the accused was found red handed, then chances are that the accused will not want to attend court.
  4. Character and past conduct of the accused person. For instance, if the accused has ever been arrested before, then they may not be willing to attend court. 
  5. Whether the accused has ever been granted bail before and failed to come to court or to keep the bail/ bond terms.
  6. Whether the accused likely to interfere with the investigation or with witnesses
  7. The need to protect the victims of the crime
  8. Whether there is a relationship between the accused person and potential witnesses that may affect the investigation or the case.
  9. Where the accused is a child, the court considers that it is in the child’s best interest to be granted bail/ bond.
  10. Whether the accused person is likely to run away from the law.
  11. Whether accused person is gainfully employed
  12. Whether the release of the accused will affect public order, peace or security. 
  13. Whether the accused person will be safe.

How much is bail?

The amount set for bail is determined by the Court. The court will consider the circumstances of the case and set an amount which should be reasonable. 

Powers of the Court in granting Bail

The court has power to:

  • Determine whether or not an accused person should be granted bail;
  • Determine the amount of bail;
  • Attach suitable conditions to the grant of bail;
  • Verify security documents;
  • Approve sureties;
  • Release accused persons who have been granted bail from police custody or prisons;
  • Commit accused persons who have been denied bail to police custody or prisons;
  • Review bail terms and conditions

What if you cannot afford the Bail

You can request the court to review the bail terms and give reasons why they should consider reducing the amount eg. you are the only one to provide for the family, and your children have no one to take care of them in your absence.

If you happen to get the amount later, you can ask the court to accept it even if the hearing has begun.

Source: The Judiciary Bail and Bond Policy Guidelines

Amakobe Sidney is a Law Graduate from the University of Nairobi, Mombasa Campus. He is currently an intern at LawQuery. 

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