BAIL AND BOND

CLASS A FIRM 1
2016 Criminal Litigation Project Work

……………
08-Apr-16
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016

TABLE OF CONTENTS

1.0 INTRODUCTION……………………………………………………………………………..3

1.1The law governing bail and bond in Kenya…………………………………………………3

1.2 The conflict between Section 123 of CPC and Art 49 (1) h of C.O.K…………………...…4

2.0 TYPES OF BAIL……………………………………………………………………………...…5

2.1 Police Bond/Bail…………………………………………………………………………….…5

2.2 Anticipatory Bail…………………………………………………………………………….…8

2.3.0 Bail Pending Trial...………………………………………………………………………….10

2.3.1Bail Pending Appeal…………………………………………………………………………14

3.0 SURETIES AND DISCHARGE………………………………………………………………16

3.1 Sureties………………………………………………………………………………………….16

3.2 Discharge of Sureties…………………………………………………………………………..17

4.0 FORFEITURE AND NON COMPLIANCE WITH BAIL TERMS…………………………19

5.0 RECOGNIZANCE……………………………………………………………………………..20

Conclusion…………………………………………………………………………………………..23

References…………………………………………………………………………………………..24.

2|Page
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016

1. INTRODUCTION.

Bail may be defined as an agreement between the accused (and his sureties as the
case may be) and the court and that the accused will pay a certain sum of money fixed
by the court should he fail to attend his trial.1

Black’s dictionary2 defines bail as a security such as cash or bond especially security
required by a court for the release of a prisoner who must appear at a future time.

Bond may be 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. In essence, Bond is the same
undertaking described in the definition of a bail except that the difference is the
security is not cash rather property of the required cash value.

1.1 The Law governing bail and bond in Kenya

The right to be granted bail or bond is provided for in Article 49(1) h of the
Constitution of Kenya. It is one of the rights of an arrested person to be released on
bond or bail, on reasonable conditions pending a charge or trial, unless they are
compelling reasons not to be released.3

The bulk of the law relating to bail and bond is outlined in the Criminal Procedure
Code.4 The Criminal Procedure Code provides for bail/bond under Section 123 to 133
outlining: the types of bail and bond, the discharge of surety and forfeiture of
recognizance. The Police Act5 has provisions on bail/bond in its sections 23 and 24.

1
Douglas Brown, Criminal procedures in Uganda and Kenya (2nd Ed), Sweet and Maxwell, London 1970.
2
Bryan A. Garner(Editor) Black’s Law Dictionary, (8th Edn, Thomsons West, 2004) 1482
3
Constitution of Kenya 2010, Article 49 (h).
4
Criminal Procedure Code Chapter 75 of the Laws of Kenya.
5
Police Act Chapter 84 of the Laws of Kenya.

3|Page
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
Section 23 gives the police authority to require a bond for attendance of court 6 while
section 24 outlines the fact that a bond should issue free of charge.7

Against Kenya’s prison background whose capacity is termed to be inadequate in that

the prisons hold twice the number of detainees it should hold, the judiciary adopted
the Bail and Bond Policy Guidelines of 2015. The rationale behind this step was that
nearly half of the entire prison population is made up of people in remand hence the
need to launch guidelines on the administration of bail and bond. The guidelines will
play a big part in how these prisons facilities can be managed to ensure that only
those persons who should be detained within the prisons are actually held within
prisons.8 The guidelines objectives are to guide police and judicial officers in the
application of laws that provide for bail and bond.

1.2 The conflict of Section 123 of the CPC and Article 49(1) h of the Constitution

Section 72(5) of the independence constitution provided that any accused person had
a right to apply and be granted bail. Act 20 of 1987 amended the same provision to
stipulate that bail was not available to capital offenders or offences that carried the
death penalty. This was codified in statute by Section 123 of the Criminal Procedure
Code which stipulates that any person can apply for bail unless person accused of
murder, treason, robbery with violence, attempted robbery with violence and any
related offence. This provision then locked out any persons accused of a capital
offences which meant that in turn they would be remanded until their case was heard.

Article 49(1) h of the Constitution however took the law to the post amendment era by
abolishing the qualifications for application of bail. It essentially reads that as a
fundamental right, every accused can apply for bail.

This issue of bailable and non bailable offences in light of section 123 of the Criminal
Procedure Code and Article 49(1) h of the Constitution of Kenya was adjudicated upon

6
Police Act CAP 84, section 23.
7
Police Act CAP 84, section 24.
8
Kenya Law, ’Judiciary Adopts Bail and Bond Policy Guidelines.’<
http://kenyalaw.org/kenyalawblog/bail-and-bond-policy-guidelines/ > accessed on 7/4/2016.

4|Page
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
in the case of Republic v Taiko Kitende Munya.9 The accused in this case was
accused of murder and had pleaded not guilty. He then applied for bail on grounds of
Article 49(1) h.

The court rejected his application for bail holding that indeed there were no bailable or
non bailable offences and the rejection or granting of bail was left to the discretion of
the court by virtue of the same article which stipulates that an accused may have his
application for bail rejected if there are compelling reasons to do so. The court further
stated that for it to decide if the reasons were compelling, the circumstances and
factors of the case would be studied. These include: seriousness of the offence,
sentence the offence attracts and the relationship between accused and witnesses.

The judge however in obiter said that he foresaw further developments as the case
unfolds which could result in a change on the position currently taken by the court.

2.0 TYPES OF BAIL

2.1 POLICE BOND/BAIL.

A police bond is given by the police officer in charge of a station who exercises his
power where it is impracticable to produce the alleged person before the court within
the reasonable time.10 This situation can arise when a person is arrested over the
weekend or when the courts are not in session.

Article 49(1) of the Constitution provides that an arrested person has the right to be
released on bond or bail on reasonable conditions pending trial. Under Kenyan law, an
arrested person can be granted bail by either the police or the court.

Section 36 of the Criminal Procedure Code empowers a police officer in charge of a

police station, where an accused person cannot be brought before a court with the
required time unless the offense appears to be of a serious nature, release the person
on his executing a bond, with or without sureties.

9
Republic V Taiko Kitende Munya [2010] eKLR.
10
Patrick Kiage, Essentials of Criminal Procedure in Kenya (Law Africa, 2010).

5|Page
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
At the police station a suspect may be released on cash bail, with or without sureties,
or personal bond or recognizance. The Police Force Standing Orders 11 require the
officer in charge of the police station to release any person arrested on a minor charge
on the security of cash bail, as a general rule, unless the officer has reasons for
believing that the person arrested will not attend court on the required date.12
However the only accused persons who may qualify for the release upon executing
such a bail bond are those charged with minor offenses and are not habitual
offenders. Bond can be given for prevention of offenses13 as well as security for good
behavior.14

This cash bail should be handed into court by the date on which the arrested person
should appear in court, and a receipt obtained.

In the case whereby a person who has been released on bail fails to appear in court,
the officer in charge of the police station should apply to the magistrate for a warrant
of arrest. At this point, the magistrate may either order the cash bail to be forfeited,
that is if it is demonstrated that there are sufficient grounds that justify an order for
forfeiture, or retained in court deposit until such time as the accused person appears.

It should be noted that the police standing orders are categorical that a person who is
released from custody on either bail or bond are required to appear before a
magistrate on a specified date, and not at a police station or other place.15

Where the accused person violates bail or bond, the police should cancel the bail or
bond, re arrest him or her, bring him or her to the police station, and then take them
to court.16

11
Police Force Standing Orders
<https://docs.google.com/file/d/0B53Zs7iJjhxWYmdiVTNMSndtNDNjV0d5TXdOTkU5WnAzVEpj/edit?hl=
en&forcehl=1 > accessed on 7/4/2016.
12
Police Force Standing Orders, Order 9(i).
13
Criminal Procedure Code (CAP 75) Section 43.
14
Criminal Procedure Code (CAP75) Section 44 and 45.
15
Police Force Standing Orders (N 10).
16
Police Force Standing Orders (N 10).

6|Page
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
Guidelines to be followed with regard to grant of bail and bond.

There has arisen a need to regulate police decision making with respect to bail and
bond and this is stipulated in part 3 of the bail and bond policy guidelines of 2015, by
the National Council on the Administration of Justice. The following deal with issues
to be taken into consideration as regards bail and bond17:

1. Police officers shall inform suspects that they have a right to be released on bail
on reasonable terms and to be issued with a receipt upon payment of the same.
2. In granting bail or bond, a police officer may attach conditions to bail or bond
that will be necessary to prevent the suspect from failing to enter appearance
and making sure the amount is such that it will secure the attendance of the
suspect to his or her trial.
3. Cash bail shall be reasonable.
4. The circumstances surrounding the commission of the crime shall be taken into
consideration.
5. In the event of a commission of a petty offence, police should give suspect a free
bond that is the police should release the accused person with his own
recognizance, or surety.
6. Police officers shall inform suspects of the reasons they have been denied bail
or bond, and the conditions attached to bail or bond in cases where the accused
has been granted bail.
7. Polices officers should release persons who are minors or vulnerable on a
recognizance being entered into by their parent or guardian or other responsible
person, with or without sureties, for such amounts as will, in the opinion of the
officer, secure the attendance of the minor or vulnerable person.18
8. Victims of crime are entitled to be informed of developments in their case,
including the decision to grant a suspect bail or bond, and any conditions
attached thereto.

17
Bail and bond policy guidelines, March 2015, part 4.4.
18
, Children Act, No. 8 of 2001, Fifth Schedule, (Child Offender Rules) Rule 5.

7|Page
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
9. Any person alleging an infringement of the aforementioned requirements on bail
and bond by may report the matter to the independent policing oversight
authority.19

2.2 ANTICIPATORY BAIL.

Anticipatory bail is an order to admit a person to bail issued before the person is
arrested. It is obtained as a constitutional remedy for likely violation or infringement of
a constitutional right. It is issued in anticipation of arrest where a person is
suspicious of apprehension.20

Its constitutional authority stems from Article 23 of the Constitution which provides
for the High Court’s jurisdiction to adjudicate on matters regarding a violation or an
infringement of or a threat to, a right or fundamental freedom of Bill of Rights. 21 By
extension sub article 3 gives the court powers to grant an appropriate relief to the
application mentioned.22

The Under Kenyan law, an arrested person can be granted bail either by the police or
the court by virtue of Section 123 of the Criminal Procedure Code CAP 75 of the Laws
of Kenya.23

Fundamentally, any person suspicious of arrest may seek court to grant him bail in
the event of arrest and the court may grant such if it deems fit. Procedurally, the
accused invites the court to arrest him and be released on bail thus forestall an
apprehended oppressive apprehension in the hands of the police.24

Previously courts were reluctant to grant anticipatory bail opting to grant bail once the
accused had been arrested. It remained a grey area of law until the High Court laid the

19
Independent Policing Oversight Authority Act 2011, Section 3(5)(a)
20
Patrick Kiage, Essentials of Criminal Procedure in Kenya ( Law Africa, 2010)
21
Constitution of Kenya 2010, Article 23(1).
22
Constitution of Kenya 2010 Article 23(3).
23
When a person, other than a person accused of murder, treason, robbery with violence, attempted
robbery with violence and any related offence is arrested or detained without warrant by an officer in
charge of a police station, or appears or is brought before a court, and is prepared at any time while in
the custody of that officer or at any stage of the proceedings before that court to give bail, that person
may be admitted to bail.
24
Independence Policing Oversight Act (N 18).

8|Page
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
matter to rest in the case of W’Njuguna v Republic25 where the court posited that the
right to anticipatory bail though not explicitly provided in the repealed constitution
was nonetheless envisaged under section 84(2) of the independence Constitution. On
grounds for seeking relief, the court stated that the remedy could be sought where the
circumstances of serious breaches of a citizen’s right by an organ of the state and were
it to wait for parliament to legislate the right to anticipatory bail, then it would be
shirking its responsibility as mandated by section 84(1) of the independence
constitution.

Worth noting is the fact that bail pending arrest gives no immunity from appearing
before police or any authority who would wish to question the accused in connection
to commission of certain offence.26 Further, it is not a blanket order neither is it an
absolute right. The accused person must demonstrate that his/her constitutional
rights have been threatened or infringed. In Gladys Boss Shollei v Attorney
General & 3 others27 the applicant by notice of motion prayed that she be admitted
to bail pending arrest in respect of allegations of violation of procurement law. In the
alternative she asked that the court do release her on her execution of bond for her
appearance upon institution of any criminal proceedings against her in respect of the
same allegations. It was held that the applicant had not demonstrated that any of her
fundamental freedoms and rights had been infringed as to warrant the granting of
anticipatory bail.

According to courts in Shollei’s case anticipatory bail shall be granted only when an
applicant demonstrates that his constitutional right has been violated or is likely to be
violated.

Kiage28 avers that a court may impose conditions in granting anticipatory bail which
includes;

i) A condition that the person shall make himself available for interrogation by

25
W’Njuguna V Republic, Nairobi Misc. Cr. Case No. 710 of 2002, [2004] 1 KLR 520.
26
Independence Policing Oversight Act (N 18).
27
Gladys Shollei v J.S.C Petition 39 of 2013 [2013] eKLR.
28
Patrick Kiage, Essentials of Criminal Procedure in Kenya (Law Africa, 2010).

9|Page
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
the police officer as and when required.

ii) The person shall not directly or indirectly make any inducement, threat or
promise to any person acquainted with the facts of the case so as to
dissuade him from disclosing facts to the court or police officer.

iii) The person shall not leave jurisdiction without prior permission of court

In conclusion Article 22(1) and (3) give the implication that an accused person has the
right to anticipatory bail as long as he can demonstrate the rule in Shollei’s case that
his constitutional right is being threatened.

2.3.0 BAIL PENDING TRIAL

It is the bail granted when an alleged offender has been charged and is set to enter
appearance.

Section 123 of the Criminal Procedure Code should be read together with section 125
of the Criminal Procedure Code which requires the release of a person once the bond
has been executed and if the person was already in prison the court admitting the bail
should order his release to the officer in charge of that prison and the officer on receipt
of that order shall release him.29

The Section also provides that The High Court has discretion either to admit the bail
with or without sureties. It may also reduce the bail directed by a subordinate court or
a police officer

This type of bail can be accorded at any time during the proceedings and also post-
conviction where the court adjourns the case in preparation of post sentencing
reports.

In the event the prosecution seeks to rebut the presumption by the objection to the
accused person being granted bail, the court will invite both the prosecution and the

29
Criminal Procedure Code CAP 75 Laws of Kenya section 125.

10 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
defence to make submissions on the matter. The court will give its decision after
hearing the prosecution’s objections and any counter objections.30

In Opinder Singh Naul v Republic 31 it was stated that the test to be applied before
bail pending trial is granted or refused is whether the accused person will appear in
court to take his trial. The test should be applied to several considerations such as:

1. Likelihood of appearance at the trial.

The trial of a serious offence cannot normally proceed in the absence of the
accused. In Republic Selwyn and 5 others32 the court said that the test to
govern the discretion of the court in deciding whether to grant or refuse bail is
the probability of the accused appearing to stand his trial. Where the court can
call for adequate sureties and impose suitable requirements to ensure the
attendance of the accused, bail should be granted.

2. Likelihood of interference with investigations

This is especially so where the investigations may be incomplete by the time the
accused is presented in court and particularly necessitated by the complex
nature of some cases. It may not entirely be just to release an accused person
at a stage where there is likelihood of his interfering with the investigation
including by concealment, destruction or tampering with evidence33

3. Interference with witnesses.

The court would deny bail to an accused person who is in a position to interfere
with witnesses whether by violence, which may even take the form of
elimination or threats or intimidation or even bribery and other forms of
influence so that the witnesses do not turn up or do not testify or alter their
testimony.

30
Patrick Kiage, Essentials of Criminal Procedure in Kenya (Law Africa, 2010).
31
Opinder Singh Naul v Republic Misc Criminal Application No.178 of 1981.
32
Republic v Selwyn and 5 others [1952] KLR 16.
33
Patrick Kiage, Essentials of Criminal Procedure in Kenya ( Law Africa, 2010)

11 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
4. The nature and seriousness of the offence.
In Watoro v Republic34the court held that the seriousness of the offence has a
clear bearing, which the court ought to bear in mind on the factors influencing
the mind of an accused facing a charge in respect of an offence whether it
would be a good thing to skip trial or not.

5. The likelihood of commission of more offences

Where a person is on bail and is charged with another similar offence alleged to
have been committed when on bail the court may be entitled to refuse bail. R v
Philips35 the accused had committed nine offences while on bail. The court
held that to let such a man loose in society until he has received for an offence
which is not in dispute is very inadvisable.

6. The severity of the punishment

The court should have regard to the likely sentence if the accused is convicted.
This is so because his perception of the probable consequence of a conviction
may be expected to have considerable effect on his reaction to bail.

7. Relative Strength of prosecution case

If the trial starts and the court is of the opinion that the prosecution case is not
very promising the court may grant bail to the accused.

8. Safety of the accused

The accused person should not be granted bail if the court is satisfied that he
should be kept in custody for his own protection where he poses danger to
himself or is charged with an offence that excites public revulsion such as child
sexual abuse.

9. The accused is serving a custodial sentence

An accused person who is already serving a custodial sentence for another
sentence cannot be granted bail in connection to new matters.

34
Watoro v Republic [1991] KLR 281.
35
R v Philips [1974] AC 111 334.

12 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
10. The accused character and antecedents

These include an accused persons previous convictions, abuse of bail in the

past or if the accused is on bail in respect of another charge.

Given that bail is a right, the courts today require the prosecution to discharge greater
burden before agreeing to curtail the right. This was illustrated in the ruling of
Republic v Danson Mgunya and Another36 the court held that if the prosecutor
objects to the release of the accused persons from detention pending trial then at the
first instance, the burden should be on the prosecution and not the accused person to
prove or at least demonstrate the existence of compelling reasons which must be
stated described and explained.

This was also cited in Aboud Rogo and Another v R Justice Ochieng considered an
application for bail pending fair trial filed by two persons charged with engaging in
organized crime by being members of Alshaabab, an outlawed organized criminal
group contrary to section 3 (3) and 4 (1) of the Prevention of Organized Crime Act
2010.It was held that the prosecution had not demonstrated any compelling reasons
to warrant the denial of bail to the applicant and the application of bail was therefore
granted.

Where the person is accused jointly with others, the court in its own discretion can
grant bail to one accused and denies the same to others. This position was illustrated
in the case of Nganga v Republic37 in this case the applicant was charged jointly with
four other persons with conspiracy to commit felony contrary to Section 393 of the
Penal Code. The first accused pleaded guilty, yet the other was granted bail. The
prosecution objected to bail for the applicant. He applied for bail in the High Court.
The Advocate argued that the denial for bail for the accused was discriminatory
subject to Section 82 of the then Constitution

36
Republic v Danson Mgunya and Another [2010] eKLR.
37
Nganga V Republic [1985] KLR 451, at 455

13 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
2.3.1Bail Pending Appeal

This is bail granted when a person who has been convicted or sentenced enters an
appeal and thereafter applies for bail.

Section 357 of the Criminal Procedure Code permits the admission to bail pending
appeal and the courts have the powers either to admit or reject the application for bail
pending appeal. If application is made to the subordinate court, and is rejected by that
court, an appeal to that decision can be made to the High Court which makes the final
decision.

No further appeal can be made to the Court of Appeal, this was illustrated in the case
of Michael Ademba v R38 in this case the appellant pleaded guilty to a charge of
impersonating a person employed in civil service contrary to section 10 (5)b of the
Penal Code. He was sentenced to twelve months imprisonment. He appealed against
the sentence to the High Court which declined to grant bail. He subsequently appealed
against the judge’s refusal to grant bail. It was held that the Court of Appeal has no
jurisdiction under the Criminal Procedure Code or the rules of the Court of Appeal to
entertain an appeal from a refusal of the High Court to grant bail pending an appeal to
that court.

Bail pending appeal is granted by the High Court or the Subordinate Court that
convicted or sentenced a person. It may also stay execution of a sentence or order
pending entering of an appeal on such terms of surety as may be reasonable to the
court.39

Bail pending appeal does not exist as a right and is issued only in exceptional cases
because the circumstances will have changed. The presumptions of innocence will
have been lost by the accused.40 This is because the courts presume that at this stage,
the accused was properly convicted and the burden is on him to show why he should

38
Micheal Ademba v R [1983] 1 C. A R 187.
39
Criminal Procedure Code. CAP 75 Laws of Kenya Section 356 1.
40
P. Kiage, Essential of Criminal Procedure in Kenya. (Law Africa 2010).

14 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
get bail pending appeal. Moreover an application for bail pending an appeal can only
be made in respect of an offence which was originally bailable.41

Bail pending appeal will depend on the cogency of the grounds of appeal although
ultimately its grant will depend on the exercise of the courts discretion on the
particular facts of the case. Bail pending appeal may be granted after considering

a. Whether leave to appeal has been granted

b. Whether there is a strong likelihood of success of the appeal and
c. Where there is a risk that if bail is not granted the sentence will have been
served by the time the appeal is heard.42

In Abdi v Republic, the court held that an application for bail pending an appeal is to
be granted in rare exceptional circumstances. To admit an applicant to bail is
discretion of the court which must be judiciously exercised keeping in sights all the
facts relating to the application, all the matters material to the trial at the lower court,
the grounds submitted in the petition and the chances of success.43 However it should
be noted that even in these circumstances, bail is not always automatic in the case of
Shah v Republic44 it was stated that rather than grant bail, steps should be taken to
see that the hearing of the appeal should be expedient.

Bail Pending Appeal on a Plea of Guilty

Section 348 of the Criminal Procedure Code provides that an appeal will not be
allowed if the accused is convicted on his own plea of guilty. An appeal will only be
allowed as regards the legality of the sentence. However in Merali v R45 the appellant
had been charged and convicted of an Exchange Control offence on his own plea of
guilty. He filed an appeal claiming that the plea was equivocal. He applied for bail
notwithstanding the plea of guilty, the court held that where and if requisite tests were
met, bail would be allowed. The bar in section 348 of the Criminal Procedure Code is
only to the extent that the plea is not bereft of legality that is it must be unequivocal
and be freely given by the accu

41
Ibid.
42
P. L. O Lumumba, A Handbook on Criminal Procedure Code in Kenya Business Trends Ltd 1998.
43
Abdi v Republic 1991 KLR 171.
44
Shah v Republic 13th August 1976 C.A [unreported].
45
Merali v R [1972] EA 47.

15 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
3.0 SURETIES AND DISCGARGE OF SURETIES

3.1 SURETIES.

The Black’s Law Dictionary defines surety as a person who is primarily liable for the
payment of another’s debt or the performance of another’s obligation and who receives
no obligation for assuming liability.46 A more inclusive definition is provided by
Professor Lumumba, who defines a surety as a pledge by some other person
guaranteeing that an accused person shall appear for his trial and if he does not, then
the surety shall pay to the court a certain sum which has been fixed by the court.47
The sum of money fixed by the court and which the surety stands to forfeit -should
the accused person fail to appear before the court- is known as recognizance.48 While
the amount of recognizance is entirely the discretion of the court, it should not be
excessive.49 Provisions for sureties are provided for from section 124 to 133 of the
Criminal Procedure Code Chapter 75 Laws of Kenya.

Courts give consideration to certain facts when considering the suitability of a surety.
They consider: his financial resources, his character and previous convictions, his
proximity to the bailed person and his interest and means in stopping the accused
from escaping.50 A court may however not refuse a surety for his political opinions or
otherwise inquire into his private interests or character.51

In Kenya, the standards for qualifying to be a surety are social standing in the
community and the rightful age which was previously 21 but was changed to 18 by
the Age of Majority Act Cap 33 of the Laws of Kenya.

In cases where the accused persons are not Kenyan nationals, the court will require
the accused persons to provide Kenyan nationals as sureties.

The procedure is that the surety presents himself before the court and under oath to
assure the court that he undertakes such a responsibility voluntary and that he has

46
Bryan A. Garner(Editor) Black’s Law Dictionary, (8th Edn, Thomsons West, 2004) 1482
47
P.L.O Lumumba, A Handbook on Criminal Procedure in Kenya (Business Trends Ltd, 1998)
48
P. Kiage, Essentials of Criminal Procedure in Kenya (Law Africa 2010).
49
ibid
50
North J in Consolidated Exploration and Finance Co. Ltd -vs. - Musqrave (1900)64 J. P.89.
51
R –vs.- Badger (1843) 7 J.P. 128

16 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
not been forced or coerced. The court then explains the consequences thereof should
the accused person fail to appear before the court as and when required.

The undertaking to secure the presence of the accused in court is absolute and the
liability of the sureties is unqualified. Essentially once one has confirmed themselves a
surety for the accused, they should be prepared to forfeit the amount fixed by the
court as recognizance when the accused fails to appear before the court.

The court has discretion to remit any portion of the penalty and enforce payment in
part. There are principles to be followed in the exercise of discretion. These were set
out by Lord Denning to primarily determine the extent of the fault of the surety. The
questions to be answered are:

- Did he connive at the disappearance of the accused man, or aided it or abetted

it

- Was he wanting in due diligence to secure the secure his appearance

- Did he use every effort to secure the appearance of the accused man

If the first two are affirmative and the third negative, the surety should forfeit the
whole amount or a substantial part of it, depending on the degree of fault. If a surety
desires the court to exercise its discretion to remit the whole or part of the amount he
has undertaken to pay, he must persuade the court that by his efforts, he deserves
such a remission or that his means are such that the forfeiture of the whole amount
would be unjust.52

3.2 DISCHARGE OF SURETIES

Sections 128 and 129 of the Criminal Procedure Code provides for the instances in
which a surety may be discharged. This may be through;

 Application by the surety

A surety may at any time apply to the magistrate to discharge the bond either wholly
or so far as it relates to the applicant or applicants.53 Upon such an application, the

52
Ibid kasanga
53
Criminal Procedure Code CAP 75 Laws of Kenya Section 128(1).

17 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
magistrate shall issue a warrant of arrest directing that the person so released be
brought to him54 and the magistrate shall call the accused to find other sufficient
sureties and if the accused fails to do so commit him to prison.

A surety need not state his reasons for a discharge.55

 Death of the surety

The Act provides that where a surety to a bond dies the bond is forfeited, his estate
shall be discharged from all liability in respect of the bond, but the party who gave the
bond may be required to find a new surety.56

 Upon the conviction or acquittal of the accused

Upon the completion of the case either as a result of the conviction or acquittal of the
accused, the surety will be discharged. Any instrument of title or money deposited by
the surety to the court will as such be returned/refunded.

 Upon discharge of the accused under any section of the Criminal Procedure Code

The Criminal Procedure Code provides for many situations where the accused may be
discharged. If the court discharged the accused pursuant to any section of the said
Act, the surety shall be automatically discharged

54
Ibid sect 128(2)
55
. Among the reasons that have been given however include;
- That the surety would wish to free the property deposited in order to sell it
- That the surety fears that the accused person is about to abscond
- That the surety is no longer able to perform his undertaking e.g. when the surety has been
declared bankrupt.

56
Criminal Procedure Code chapter 75, Laws of Kenya Section 129.

18 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
4.0 FORFEITURE AND NON-COMPLIANCE WITH BAIL TERMS

Forfeiture of bail occurs where the accused is released on bail and subsequently fails
to appear in court or otherwise violates any conditions set forth as conditions of their
bail.

An arrested person has the right to be released on bail, on reasonable conditions

pending trial, unless there are compelling reasons not to be released.57Bail is given
back to the accused person(s) regardless of whether they are convicted or acquitted.

Conduct that leads to forfeiture

a) Failure to comply with any conditions set out in the agreement as to conduct
while on bail,

b) Failure of the accused to appear and surrender himself according to the

conditions of his bail,

The consequences are that the judge shall declare the bail forfeited and Issue a
warrant of arrest, ordering for his immediate arrest.

Sufficient proof, by way of evidence on oath has to be adduced to warrant such

forfeiture. This is illustrated in the case of, Charles Ogutu V Republic58 where the
accused was charged with obtaining money by false pretence and was released on bail
he failed to attend trial because he was sick. Consequently he sent a person to inform
the Magistrate about his sickness. The Magistrate disbelieved it, cancelled the bail and
issued a warrant of arrest. On Appeal the order of cancelling the bail was quashed and
the bail restored with the court ruling that the accused had no intention of
absconding. A mere statement by the prosecutor that the accused was absent is not
enough.

In Nasubuga V Uganda,59 the accused deposited cash money in court as security for
his attendance in court and was released on bail. On the date of trial the Magistrate

58
Charles Ogutu V Republic Miscellaneous Criminal Application No.64 of (1989).
59
Nasubuga V Uganda (1968) East African Law Report.

19 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
recorded that the accused was absent and issued a warrant of arrest at the request of
the Prosecutor. The accused stated before the court that he had been present but his
name was not called out. The prosecutor stated that he had been absent but no
evidence was called to prove this. The Magistrate ordered the cash bail forfeited
against which the accused appealed. On appeal the forfeiture order was quashed as
the procedure adopted was wrong and the Court ruled that the evidence on oath had
to be led before making an order of forfeiture as opposed to acting on the mere
statement of the prosecutor.

Evidence on oath enables the accused to cross examine the prosecutor and the
witnesses. The accused person cannot do this in the case of statement by the
prosecutor. If an accused person is on bond his bail should not be cancelled unless
there is danger that he will abscond or there is danger that he may interfere with the
witnesses. 60

5.0 RECOGNIZANCE.

This is an obligation of record, entered into before some court of record or Magistrate
duly authorized with condition to do some particular act; as to appear at the assizes,
or criminal court, to keep the peace, to pay a debt, or the like.61

Persons Bound by recognizance absconding may be committed.

If a person bound by recognizance, is about to leave Kenya, the court may cause him
to be arrested and may commit him to prison until the trial, unless the court sees it
fit to admit him to bail upon further recognizance but this information must be on
oath.62

Release on one’s own recognizance.

60
P. Kiage, Essentials of Criminal Procedure in Kenya (Law Africa 2010).
61
The Law Dictionary <http://thelawdictionary.org/recognizance/> (Date Accessed 22 March 2016)
62
Criminal Procedure Code Cap 75 Laws of Kenya S.130. See also P. Kiage, Essentials of Criminal
Procedure 2014

20 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
In non-violent and less-serious misdemeanor cases such as shoplifting, traffic
violations, technical crimes, and first offenses, a Release on one’s own Recognizance
can be petitioned.

The constitution 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.”63 Further, it 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.”64

Generally, a judge will decide whether or not to grant the ROR based on a variety of
factors, including:

 The seriousness of the crime

 Previous offenses, criminal record, and history of court date appearances

 Whether or not the defendant is considered a flight risk

 A background check

 Family and ties to the community

 Employment

In most jurisdictions a minor is not entitled to bail, and if released it will be on his or
her own recognizance and under court supervision.

When a release on your own recognizance is granted, it is generally done so with many
stipulations. Judges will often require the defendant to check in with a supervising
officer and restrict travel privileges. Other times, a judge may also set a curfew, issue
stay-away orders, or require that the subject go to rehab are violated, or if the
defendant does not appear for any scheduled court dates, they will be subject to
arrest.

63
Constitution of Kenya, 2010 Art 49(1) h.
64
Ibid art 49(2)

21 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016

Forfeiture of Recognizance.

Where it is proved that an accused person has absconded, the court will issue a notice
to any person bound by the recognizance to pay his penalty or to show cause why he
should not pay.65

Where a sufficient cause is not shown or penalty paid the court may proceed to
recover it by issuing a warrant for the attachment and sale of the moveable property of
that person or his estate if deceased.66

The warrant endorsed by the magistrate of the jurisdiction where the property is found
may be executed within the jurisdiction of the court that issued it.67

If the penalty cannot be recovered by attachment of sale, the court will order the
imprisonment of such a surety for a term not exceeding six months.68

The court has discretion to remit a portion of the penalty mentioned and enforce
payment in part only of the amount of recognizance for which one had stood surety.69

Where an accused person commits an offence which constitutes violation or breach of

the conditions of his recognizance, and the same is liable to be forfeited a certified
copy of the judgment of the court that convicted him is admissible in evidence in
proceedings against his sureties in the matter of forfeiture.70

All orders made by a magistrate respecting the forfeiture of recognizance are amenable
to appeal to the High Court.71

In Benjamin Munyao Nzioka v Republic, 72 the appellant had been released on cash
bail of 20,000. On 1/11/2004, he arrived in court late and found that the prosecutor

65
Ibid s.131(1) See also Benjamin Munyao Nzioka v Republic [2004] EKLR 74 CA
66
Ibid s.131 (2)
67
Ibid s.131(3)
68
Ibid s.131 (4)
69
Ibid s.131 (5)
70
Ibid s.131(6)
71
Ibid s.131 (132) of the Criminal Procedure Code Cap 75 Laws of Kenya.
72
Benjamin Munyao Nzioka v Republic, [2004] EKLR 74 CA.

22 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
had applied for a warrant of arrest against him and asked for forfeiture of the cash
bail and that application was granted by the court.

In the subsequent court appearance, the appellant gave an explanation on why he was
late and ordered to be released on fresh bond terms of Ksh50, 000 with one surety.

The appellant contended that order for forfeiture of his cash bail was unprocedural
and offended provisions of s 131 of Criminal Procedure Code.

The High Court in agreeing with the holding in Antony Nsubuga v Uganda;73 that a
mere statement by the prosecutor is not sufficient to satisfy the requirements of
section 130 (1) of the CPC which is equivalent to our section 131 of the CPC and that
evidence needed to be given on oath.

Court held that the cash bail was forfeited and the court revised the order of the
Senior Resident Magistrate.

Conclusion

To apply and be granted bail or bond is a right-not withstanding its conditional

stature- subsisted by the Constitution. This is merely for the freedom factor during
and even before a case. This is to ensure a fair trial since ensure that the accused has
ample time to prepare for their case. It is therefore a fundamental right whose
substance will survive the elements of time and whose procedure should be protected
from err.

73
Antony Nsubuga v Uganda [1968] EALR 111.

23 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
REFERENCES

Books

1. Patrick Kiage, Essentials of Criminal Procedure in Kenya (Law Africa, 2010).

2. P. L. O Lumumba, A Handbook on Criminal Procedure Code in Kenya Business
Trends Ltd 1998.

Statutes

1. Constitution of Kenya 2010

2. Criminal Procedure Code CAP 75 of the Laws of Kenya
3. Police Act CAP 84 of the Laws of Kenya.
4. Children’s Act CAP 141 of the Laws of Kenya.
5. Independent Policing Oversight Authority Act 2011

Online sources

1. Kenya Law, ’Judiciary Adopts Bail and Bond Policy Guidelines.’<

http://kenyalaw.org/kenyalawblog/bail-and-bond-policy-guidelines/ >
accessed on 7/4/2016.
2. Police Force Standing Orders
<https://docs.google.com/file/d/0B53Zs7iJjhxWYmdiVTNMSndtNDNjV0d5TXd
OTkU5WnAzVEpj/edit?hl=en&forcehl=1 > accessed on 7/4/2016.

Cases

1. W’Njuguna V Republic, Nairobi Misc. Cr. Case No. 710 of 2002, [2004] 1 KLR
520.
2. Gladys Shollei v J.S.C Petition 39 of 2013 [2013] eKLR.
3. Opinder Singh Naul v Republic Misc Criminal Application No.178 of 1981.
4. Republic Selwyn and 5 others [1952] KLR 16
5. Watoro v Republic [1991] KLR 281
6. R v Philips [1974] AC 111 334.

24 | P a g e
 CLASS A FIRM 1 CRIMINAL LITIGATION PROJECT WORK
2016
7. Republic V Taiko Kitende Munya [2010] eKLR.
8. Republic v Danson Mgunya and Another [2010] eKLR.
9. Nganga V Republic [1985] KLR 451, at 455
10. Michael Ademba v R [1983] 1 C. A R 187.
11. Abdi v Republic 1991 KLR 171.
12. Shah v Republic 13th August 1976 C.A [unreported].
13. Merali v R [1972] EA 47
14. North J in Consolidated Exploration and Finance Co. Ltd -vs. - Musqrave
(1900)64 J. P.89.
15. R –vs.- Badger (1843) 7 J.P. 128
16. Charles Ogutu V Republic Miscellaneous Criminal Application No.64 of (1989).
17. Nasubuga V Uganda (1968) East African Law Report.
18. Benjamin Munyao Nzioka v Republic, [2004] EKLR 74 CA

Regulatory Guidelines

Bail and bond policy guidelines, March 2015

25 | P a g e