Bail is one of the rights protected by the constitution – based on the notion that one is innocent until proven guilty.

Bail is governed by the constitution, the CPC, case law and practice adopted by various courts.  When we look at the processes and securities that are offered, most of these are not in the CPC and courts have adopted some of the practice.  In every station there is usually a procedure that the courts follow.

Bail is granted to ensure the attendance of the suspect at the trial.   Bail consists of the temporary release of an accused person while awaiting trial.  It is therefore an agreement between the accused (and his sureties if any) and the court that the accused will pay a certain amount of money fixed by the court should he fail to attend court as and when required by the court.  Bail is temporary as it is based on the assumption that the accused will show up in court if and when required to do so.

The sureties bind themselves to the court to forfeit whatever amounts they have bound themselves.

Section 123 (2) of the CPC provides that the amount of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive.  You cannot bind a person with conditions of bail that they are not able to meet.

Section 123 – there are two persons who can grant bail, the police can grant bail at the police station and if they don’t then the accused can make an application.  When an accused person is held for an inordinate period the accused can go before a subordinate court to apply for bail.  It does not happen often and what often happens is that when the accused is held, if the accused does not appear before the court a habeas corpus application can be made before the High Court.  Habeas Corpus tries to compel the person holding the suspect to produce the suspect before a court of law.  Section 123 gives the court power to grant bail.  Once the court has determined the amount of bail, the court will consider whether to grant bail or not. 

Where bail is to be denied it is still should be within the constitutional framework.  Article 72(1) (h) provides every person who is arrested has the right to be released on bond or bail pending a charge or trial on reasonable conditions unless there are compelling reasons to the contrary.

Once the court has identified that an offence is bailable, when determining what the terms of bail are going to be is that there is not table in the CPC that states bail terms.  There are three ways in which the court can grant bail

  1. Cash bail – cash deposited with court and a receipt obtained, the court will record that cash bail is granted and in addition the court will indicate the mention date and the date for hearing.  If it is within 14 days one does not need a mention day, anything longer than 14 days there will be a mention date. 

  1. Bond – bond can be granted as free bond, the accused is released on their own bond after signing a document which indicates an amount e.g. 5000 IN the event that the accused fails to turn up in the court when they eventually show up they are required to explain or forfeit the amount.

  1. Bond and surety – in addition one is required to produce a number of sureties which is discretionary upon the court whether one needs one surety or more.  Surety are brought before the court and examined by the court, the process is to ensure that the surety understands what there obligation to the court is and what their responsibility towards the accused person is.  Their responsibility is to ensure that the accused person comes to court.    if the surety agrees to become surety they are required to sign the documents binding themselves to amounts of money that they are prepared to forfeit to the State should the accused abscond.  One must have a Kenyan surety so that the likelihood of absconding is minimized.  The court has power to reject a surety and so it is not only the surety who can refuse but after examination the court can decide that a person is not suitable to be a surety.  The prosecutor is also given a chance to cross-examine the surety,  this is important since the courts do not have ability to trace the surety or the accused person in the event that they disappear but the prosecutor through the police force can trace the people.   The prosecutors can raise an objection and the court must consider it before allowing or disallowing the objection.  The Prosecutor has the responsibility to cross-examine the surety and are given the opportunity to object to bail even before it is granted.  Essentially if the prosecutor does not raise the objection the court is expected to grant bail.

In the US they have an institution of Bondsmen who are not part of the institution but they can sign bonds for accused with the responsibility of ensuring that the accused people show up in court, if the accused disappears, the bondsmen then are required to forfeit the money.

The courts may require that in addition to signing security documents, that security are deposited with court.  they include Titles, logbooks etc, in addition to bringing sureties they are required to deposit securities with the courts.  If it is a logbook a search must be done with the Motor Vehicle department and the court will go through all the documents and official communication must come from the registrar of motor vehicle confirming particulars of the logbook, if it is a title there has to be a search and the land is valued so in addition to showing up with a title, the registrar of land must confirm that it exists and is worth the amount being alleged.
The reasons why courts require these securities, when the accused abscond, it may be difficult to recover money from an accused but where the securities are available the state can recover what the accused is meant to have forfeited.  It depends on the court practice on how much they will require.  Some courts might reject title deeds and with sureties the court has to guard against professional sureties.  This happens in big cities where sureties are not easily recognizable and people become professional sureties in that they negotiate with accused persons who pay them and they produce fake documents and so when the accused persons disappears they cannot be traced and the securities turn out to be fake.


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