The internet has been awash with news of Pastor Ezekiel being released on a Kenya Shillings 3 Million Bond and one surety of a similar amount or in the alternative, pay a Kenya Shillings 1.5 Million cash bail. Further, the Court ordered the Pastor to report to the Investigating Officer (IO) once a week and also barred him from commenting on the “Shakahola massacre” in public. Some internet users have since stated that he did not deserve to be released on bond or admitted to any bail terms. Are they right in their assertions? Join me as I dissect this issue of bail and bond.

Bail as defined by the Bail and Bond Policy Guidelines, 2015 means, 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, a sum of money or property directed by the court to be deposited will be forfeited to the court.

Bond on the other hand is defined as, 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. Some of the security documents accepted as bonds include: title deeds, motor vehicle log books, pay slips, bank drafts, and insurance bonds, among others. The alternative to bail/bond is being held in remand.

Any money or document deposited in Court as bail is refunded/returned upon the conclusion of the case. At times, Courts allow it to be commuted to a fine where the accused person is convicted to pay a fine. Where the fine is higher than the bail amount deposited, the accused is required to top up the difference. However, any money or Security document deposited as bail may be forfeited if the accused person fails to present him/herself in Court as directed. Bond terms may be revoked where the accused person goes against any of the directions issued by the Court.

The essence of bail is to secure the attendance of the suspect or accused in Court. As such, bail or bond amounts and conditions shall be no more than is necessary, to guarantee the appearance of an accused person for trial. Conversely, bail or bond amounts should not be so low, that the accused person would be enticed into forfeiting the bail or bond amount and fleeing as outlined in the Bail and Bond Policy Guidelines. The Court has to strike a balance.

Article 49 (1) h of the Constitution of Kenya, 2010 provides for the right of an arrested person, 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 provides 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 means that bail is a constitutional right but is however NOT an absolute right meaning that the court can under “compelling reasons” fail to admit a suspect or accused person to bail. Underline the word compelling reasons. We shall, later on, get to understand what are these compelling reasons. At times, the Court may impose further conditions in addition to bail e.g. the accused person is directed to deposit their passport in court or is required to report to the investigation officer after a certain period of time.

Before the promulgation of the Constitution of Kenya, 2010, persons suspected or accused to have committed capital offences that are punishable by death were not entitled to bail or bond terms. These offences included: murder, treason, and robbery with violence. Currently, every person is entitled to bail, the offence notwithstanding.

In Republic v Taiko Kitende Muinya [2010] eKLR The High Court stated that under the dispensation of the Constitution of Kenya, 2010 (which had been promulgated a few weeks before the bail application ruling), there was no longer a category of offences characterized as non-bailable, but went on to say that the right of an accused person to be released on bail, although a constitutional right, was not absolute.

Types of Bail

There are three broad classifications of bail in Kenya:

  1. Bail Pending Trial – This can be granted by the Court or the Police. Police officers are empowered to grant pre-trial release both on bond and on bail which is commonly known as a “police bond.” The Court grants this bail once the suspect has been presented before it.
  2. Bail Pending Appeal – This is granted by an appellate Court where an accused person has already been convicted and sentenced but goes ahead to appeal the decision of the trial court. This type of bail is not Constitutional but is at the discretion of the Appellate Court.
  3. Bail Pending Arrest – Popularly known as Anticipatory Bail. It is a preserve of the High Court. It is granted where an applicant demonstrates that his or her right to liberty is likely to be compromised or breached unlawfully by an organ of the state that is supposed to protect this right. Further, the applicant must demonstrate that the apprehension of arrest is “real and not imagined or speculative.

Factors Considered Before Granting Bail

Before a Court grants a suspect or an accused person bail, it considers some factors which include:

  1. The nature of the charge or offence and the seriousness of the punishment to be meted out 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 the case of minor offences, there may be no such incentives.
  2. 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.
  3. Character and antecedents of the accused person. The accused’s character, coupled with other adverse factors, may justify the refusal of bail or bond.
  4. The failure of the accused person to observe bail or bond terms on previous occasions.
  5. 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.
  6. The need to protect the victim or victims of the crime from the accused person.
  7. The relationship between the accused person and potential witnesses. Here, the Courts reason that 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 legitimate anxiety about the impact the accused person might have on the witnesses if he or she is released on bail pending trial.
  8. Child offenders. Where the accused person is a minor, the denial of bail or bond is considered not to be in the best interests of the accused person, who is a minor.
  9. 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.
  10. Whether the accused person is gainfully employed. The courts also consider the fact that an accused person is gainfully employed to enhance the likelihood that he or she will attend the trial.
  11. Public order, peace, or security. Whether the release of an accused person will disturb public order or undermine public peace or security.
  12. Protection of the accused person. Whether pretrial detention is necessary to protect the accused person. Previously, there have been instances of accused persons being released on bail and then being killed either by the co-accused, families of the victim, or the public.

It is important to note that the above considerations are not conclusive and the Courts determine bail and bond applications on a case-to-case basis. Remember the compelling reasons we talked about earlier? A Court in denying a person bail has to state the reason for the same. Some of the reasons will usually be from these factors stated above.

Do you have any questions regarding bail and bond, please send an email to info@karimico.ke for prompt action.

Comments and corrections are welcome in the Comments section below. Please share widely.

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