There is pre-trial bail and bail pending trial.  Pre-trial bail is the bail given to an accused person before trial.

Some of the things taken into account are

1.         Nature of Offence – considerationa should be given to its seriousness;  R v Kariuki Sunday Nation Jan 1976 at page 3, where the accused told the manager of Egypt air in Nairobi …

Another consideration is whether it is one that

2.                  An additional consideration to the nature of the offence is whether it is the kind of offence that may attract undue hostility to the accused – i.e. R V Gajjan Singh and others where a landlord was charged with a criminal offence and bail was opposed by the prosecution on the ground that such release may have led to a breach of the peace i.e. an attach on the …
The court said that “… that the application was opposed on the ground that the appellant might not appear to stand the trial but on the ground that there was a reason to apprehend breach of the peace by one side or the other … we consider that the attitude taken up by the prosecution advocate was very sensible and wise.

3.                  Severity or otherwise of sentence in case of conviction e.g. where it is likely to attract a fine rather than imprisonment the more reason to grant bail.

4.                  the court will consider what sort of person the accused is – his social standing, ties with the community, ownership of property in the areas, is he a citizen or non citizen, immigrant etc  the court may also consider the special circumstances of the accused e.g. illness which may be aggravated by incarceration. 

5.                  The court considers the length of the remand period, the longer it will take before the trial the more reason to grant bail under this head may also arise consideration to delays either by the prosecution or by the defence.  The longer it takes the court to hear a case the more reason to grant bail. 

6.                  Unnecessary delay by prosecution may result in grant of bail in cases where the court would otherwise not grant bail.

7.                  Delaying tactics by the defence may also lead to cancellation of bail R v Muturi Kigano Daily Nation 1976 of 18 and 19 November at pages 3.  If the court for any reason believes that adjournments sort by defence are not genuine, they can cancel bail and have the case proceed with expediency.

8.                 Where the accused person is to be released on surety, the court has to determine whether the accused may fail to turn up for trial especially where no deposit has been made.  Section 125 – deposits to be made. Some courts may consider that surety having given their personal information is sufficient amount of surety based on their earnings, the court can ask for payslips and if the court allows surety to be surety based on their earnings they have to be certain that if the accused does not turn up in court they would know how to find him.

9.                  Where the accused is to be released on sureties; are they capable of paying up in the event of accused failing to turn up for trial especially where no deposit has been made.

Central to all these considerations is whether the accused person will turn up for trial – whether or not there is likelihood of accused absconding.

10.              Whether or not the accused is likely to interfere with witnesses – this is a difficult matter for courts to evaluate this because the courts do not know the relationship of the accused and the witnesses – there may well be cases where it is possible to make an intelligent guess that the accused because of the nature of the offence may actually intimidate prosecution witnesses.  It is difficult for courts especially where there is no evidence of such an occurrence happening.

Usually it is the prosecution that makes the objection that there is likelihood of interfering with witnesses.  Where they do so then grounds supported by facts should be adduced to show reasonable cause for the alleged fears.  It is not sufficient for the prosecution to allege, they must show facts.

Character and antecedents of the accused persons in some jurisdiction this is taken into consideration – however in Kenya the practice is that the courts do not have access to previous records of the accused therefore they can only consider situations  where the accused had previously absconded or abused bail terms.

Depending on the nature of the case the magistrate may inquire into the kind of evidence in support of the accusation i.e. its cogency.

Views of the prosecution – the prosecution must be given opportunity to object to bail if they so wish.  However, the grant of bail is entirely the discretion of the magistrate – where the prosecution advances cogent reasons then it is advisable for bail to be denied.

Section 124 of the CPC states that bail should not be excessive, but no specific amounts are provided the court should consider whether the amount is reasonable.  The amount of fine or sentence generally that the offence is likely to attract.

The economic circumstances of the offender should be taken into account

Insufficient Bail Terms
Section 127 provides that where through mistake, fraud or otherwise, insufficient bail terms or sureties have been accepted, or if they afterwards become insufficient i.e. through additional more serious charges the court may require of the accused to find sufficient sureties failure of which he maybe remanded in custody.


It is the responsibility of the accused and his next of kin to find suitable sureties.  Sureties are examined by courts/magistrates to assess their suitability – such examination forms part of the court records.  The magistrates thus take responsibility in the event that something goes wrong.

The prosecution are also allowed to cross-examine sureties and to cross check any details that they supply to the court, such place of residence, employment, authenticity of any documents produced.

The examination of sureties includes finding out the nature of the relationship that exists between them and the accused - whether they can exercise authority to require the accused to attend court.  It also includes ensuring that the sureties understand the nature of their obligation to court and their undertaking to ensure that it is their responsibility where there is failure on the part of the accused to attend court.

Considerations will also be made to the financial resources of sureties or capability, character and previous convictions if any.  Proximity or relationship with the accused person is also taken into consideration.

It is essential that the surety should be interested in and looking after and if necessary using powers/or position of authority over the accused to prevent his escape.

They must attain the age of majority.

Under Section 128 the surety can apply at any time to be discharged from responsibility, there is no requirement for a surety to furnish the court with reasons.  In practice such applications are made during mention dates when the accused is present.  Where the accused is absent then a warrant of arrest may be issued to require attendance…

Section 129 provides that where a surety dies before a bond is forfeited, his estate shall be discharged from all liability in respect of the bond.  This provision should be understood within the context of the personal nature of the obligation of a surety to the court which cannot be assigned.

Section 130 and section 131 OF the CPC provides an elaborate procedure for forfeiture where an accused absconds, in summary it iis as follows;
A warrant of arrest is issued against the accused and a summons to the surety
If the accused comes to court he should give reasons as to why forfeiture should not take place if the court is persuaded the warrant may be ..

Where the accused is not arrested and continues with non attendance the surety will be required to show cause why forfeiture should not be ordered against them.

In practice the surety will be given time to look for the accused and it is only where he fails to do so that the forfeiture will ensue.

If penalty is not paid then an order can issue for attachment against property.
Where it is not possible to attach property the court can make an order for a term not exceeding 6 months.

The court may also enforce only part payment of the surety.
R v Forgobhai Jessa the accused was released the court held that the undertaking by a surety was not a mere formality.  A surety incurs duties in relation to the person whose attendance he had been bound.

If he fails to take reasonable precautions in the discharge of his duty he is liable to be ordered to pay the penalty of the bond. 

Nsubuaga v R 1968 EA 10 – it lays down procedure to be followed before forfeiture.  The accused was granted bail of Shs. 500 for trial on 25th July 1967, on which date the magistrate recorded that the accused was absent and issued a warrant of arrest.  On appeal IT WAS held that a mere statement by prosecution is not sufficient to satisfy requirements of Section 130(1) of the Uganda’s CPC which is similarly to Kenya’s section 131(1).   Evidence should have been given on oath.

The court must take into serious account the fact that rules of natural justice have been observed.  In practice courts adopt various practices when it comes to issuing orders of forfeiture.  There are courts that when the accused person is called and does not respond, they issue a warrant of arrest.  There is need to verify since it is possible for accused persons to have good reasons why they are not in court and if an order for forfeiture is made, they can suffer injustice, once an order for forfeiture is made the magistrate cannot recall it.

Some of the challenges that face the grant of bail are that because of the discretionary nature of bail, the practice of courts may differ from court to court.  There is lack of uniformity in approaching bail terms which confuses defence counsels and litigants alike.

The defence often view with hostility members of the bench who are conservative and with awe/admiration those they consider to be liberal with bail terms.  It is really a question of balance that the court has to strike as a person is innocent until proven guilty.  The court should seek to balance all this.

Courts are called upon to make bail decisions with very little information.  They therefore rely heavily on the prosecution.   Criticism has been levelled at judicial officers who do not grant bail as a matter of practice but wait for accused persons to apply. 

Section 123 - The High Court has powers to review cases where bail is denied by the police or the magistrates courts.  It also has powers to entertain bail applications in its original jurisdiction.  In practice where bail is denied the application may be renewed before the court trial secondly, where bail terms are considered unreasonable application may be made for review of the terms and appeal lies to the High Court.

Consideration by the trial court will be based on where or not there is a change of circumstances to warrant such an application. Where investigations are still going on the police are more likely to fear that the accused persons can intimidate witnesses not to record statements but once statements are recorded this minimises that fear.


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