Revisiting the Right to Bail and Bond in Kenya
With the ever-increasing cases of arrests due to failure to adhere to statutory mandates in various commercial dealings wherein penal sanctions are imposed, knowledge of the right to bail and bond is crucial to secure the liberty of the individuals concerned.
The difference between bail and bond is a subtle one, but it ultimately comes down to who and what is securing the freedom of the accused person. Bail is an agreement between an accused person or his/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, the sum of money deposited as security, will be forfeited to the court. Bond on the other hand is an undertaking between the accused, a surety and the court in which an accused or his/her surety deposits a security to vouch for attendance of an accused person in court until final determination of the case against them.
Courts may accept the following as security documents, among others: title deeds, motor vehicle log books, pay slips, bank drafts, insurance bonds.
Legal regime governing grant of bail and bond
The legal regime governing the application of bail and bond is drawn from the Constitution of Kenya, 2010, the Criminal Procedure Code (Cap. 75 of the laws of Kenya), the Bail and Bond Policy Guidelines, 2015 and case law or judicial precedents.
Article 49(1)(h) of the Constitution of Kenya 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.
Further, Article 49(2) of the Constitution stipulates that “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.” This is important to note especially for most traffic offences which impose fines only or custodial sentences for less than six months. It is therefore illegal for the police to detain a traffic offender in such circumstances.
The National Council on the Administration of Justice (NCAJ) came up with Bail and Bond Policy Guidelines in the year 2015 which guide police and judicial officers in the application of laws that provide for bail and bond. These policy guidelines are not intended to fetter the discretion of police officers and judicial officers in bail and bond decision-making as they are guided by practice and procedure and judicial precedents.
Types of bail/bond applications
1. Bail at the Police Station
This applies where an accused person is arrested pending a charge or arraignment in court to take plea. At the police station, a suspect may be released on cash bail, with or without sureties, or personal (free) bond or recognizance. The Police Force Standing Orders require the officer in charge of a police station [OCS] to release any person arrested on a minor charge on the security of cash bail, as a general rule, unless the officer has good grounds for believing that the arrested person will not attend court when required to do so. Where the accused person violates bail or bond terms, the police are obligated to cancel the bail or bond, re-arrest the accused person and take him or her to court.
2. Bail pending trial
This applies after an accused person is presented before court to take plea. If the accused person takes a plea of ‘not -guilty’, the court releases the accused person on bail or bond pending trial. In this case, the burden of proof lies on the prosecution to establish the existence of compelling reasons that would justify the denial of bail, or the imposition of suitable bail or bond terms and conditions.
3. Bail pending appeal
This applies after an accused person is found guilty of the charge(s) preferred against him or her after trial and the aggrieved party seeks to be released on bail or bond pending hearing of their appeal. It is only granted in exceptional situations as the presumption of innocence no longer exists. The burden is on the accused person to prove chances of success in their appeal.
4. Anticipatory bail
It is given to a person pending their arrest, provided the applicant demonstrates that their right to liberty is likely to be compromised or breached unlawfully by an organ of the state that is supposed to protect this right as enshrined in Article 258(1) and 165(3) (b) of the Constitution. Persons admitted to anticipatory bail are free from any arrests but are mandated to report and cooperate with the investigative authorities.
What are the compelling reasons for grant or denial of bail or bond?
Given that the right to bail is not automatic, the determination of whether there are compelling reasons that can justify the denial of bail should be made by evaluating whether or not the accused person will attend his or her trial. In practice, courts have made this evaluation by considering the following non-exhaustive factors:
a. The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.
Where the charge against the accused person is serious, and the punishment heavy, the courts assume that there are more probabilities and incentives for the accused person to abscond, whereas in case of minor offences there may be no such incentives.
b. The strength of the prosecution case.
An accused person should not be subjected to pretrial detention where the evidence against him or her is tenuous, even if the charge is serious. Conversely, it may be justifiable to subject an accused person to pretrial detention where the evidence against the accused person is strong.
c. Character and antecedents of the accused person.
Although the character and antecedents of the accused person do not by themselves form the basis for denial of bail or bond, they may justify the refusal of bail or bond if they are coupled with other adverse factors.
d. The failure of the accused person to observe bail or bond terms on previous occasions is a good ground for denying bail or bond.
e. Likelihood of interfering with witnesses.
Where there is a likelihood that the accused will interfere with prosecution witnesses if released on bail or bond, he or she may be denied bail or bond. However, bail or bond will only be denied if there is strong evidence of the likelihood of interfering with prosecution witnesses, which is not rebutted, and if the court cannot impose conditions to the bail or bond to prevent such interference.
f. The need to protect the victim or victims of the crime from the accused person.
g. The relationship between the accused person and potential witnesses.
If the accused person is either related to the witnesses or stands in a position of influence vis-à-vis the potential witnesses, there could arise a legitimate anxiety about the impact the accused person might have on the witnesses, if he or she is released pending trial. However, this factor does not inexorably dictate that the accused person should be denied bail. Instead, it may simply require the police or the court to attach suitable bond or bail conditions to ensure that the relationship between the accused person and potential witnesses does not undermine the interests of justice.
h. The accused person is a flight risk.
Where the accused person is a foreigner who does not have a fixed abode or hosts in the country and Kenya does not have an extradition treaty with the accused person’s country, there is a presumption that he or she is a flight risk and may therefore fail to attend trial if granted bail or bond. The rationale for this presumption is that it would be impossible to prevail upon such a country to return its national to Kenya to be prosecuted should they abscond after being granted bond or bail.
i. Public order, peace or security.
Pretrial detention may be necessary to preserve public order where it is demonstrated that the public response to an offence is such that the release of the accused person would be likely disturb public order or undermine public peace or security.
j. Protection of the accused person.
Pretrial detention could apply where the accused is threatened with lynching for committing a crime.
There have been recent cases which are in the public knowledge where trial courts have set high bail terms that have on review by the High Court, been reduced substantially. This position taken by the High Court of Kenya in our view reflects the correct state of the law in Kenya in that there is a constitutional right to bail unless compelling reasons exist – and in any event, bail is meant to secure the attendance in court of an accused person not to convict an accused before trial.
The Constitution of Kenya has enhanced the right to bail by embodying bail as a fundamental right. Bail or bond ought to be granted unless there are compelling reasons to deny the same. The considerations taken by courts are not exhaustive and vary depending on the circumstances surrounding each case.