Once a person has been charged in court, the common practice is for their lawyers or themselves to apply for temporary freedom as the trial drags on.
This application in Kenya and the Commonwealth (countries that are former British colonies) takes the form of bail or bond.
But what do these legal terms mean? How different are they? And which one suits which situations?
Let’s delve into this subject.
- What is bail?
In the Bail and Bond Policy Guidelines 2015, bail is defined as an agreement by an accused person, their sureties and the court that the accused person will attend court when required.
If the accused person absconds, courts issue warrants of arrest and the sum of money or property directed by the court to be deposited is forfeited to the court.
- What is bond?
Conversely, bond is defined as an agreement entered into by the accused in custody with or without sureties or security. The bond terms set out conditions the accused should comply with while out of remand.
When in default, the accused pays the sum fixed in the terms.
- Who is a surety?
This is the person who undertakes to ensure that an accused person will appear in court and abide by bail conditions.
The surety puts up security, such as money or a title deed, which can be forfeited to the court if the accused person fails to attend court proceedings.
- What is the difference between bond and bail?
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.
- Which laws govern the bail and bond procedure in Kenya?
In Kenya, a bail and bond application is governed by the Constitution, the Criminal Procedure Code, the Bail and Bond Policy Guidelines, 2015, the Police Force Standing Order and decided cases, as precedents.
1. Bail under the 2010 Constitution
Article 49 of 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.”
Further, Article 49(2) of the Constitution states 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.”
2. Bail under the Criminal Procedure Code
The Criminal Procedure Code (CPC), on the other hand, empowers officers in charge of police stations or a court to grant bail or bond to a person accused of an offence other than murder, treason, robbery with violence, attempted robbery with violence, et cetera.
Alternatively, the officer may release the accused on a bond without sureties.
3. Bail at the police station
This applies where an accused person is arrested and taken to the police station and before he or she is arraigned.
The Police Force Standing Orders empower officers in charge of police stations to release an accused person on cash bail, unless the officer has good grounds for believing that the person will abscond court.
This cash bail is handed over to the court by the date the arrested person appears for trial.
- What if the accused absconds court after their release on cash bail at the police station?
If the accused fails to appear, the officer in charge of the police station applies to a magistrate for a warrant of arrest.
The magistrate either orders the cash bail to be forfeited if there are sufficient grounds or for the money to be deposited in court until the accused person appears.
4. Bail and bond in the courts
The Constitution and the CPC give courts the power to release an accused person on bail or bond terms.
A bail hearing is a proceeding in which the court decides whether an accused person should be released or held in custody awaiting trial.
Notably, at present, there is no procedure for applying for bail.
In magistrates’ courts, the practice is that an accused person seeking to be released on bail pending trial applies for bail when arraigned.
The accused verbally requests the presiding judicial officer for bail.
Alternatively, the magistrate grants bail to the accused person without any application.
The flip side of this is the judicial officer does not establish from the accused person whether the bail terms are favourable.
- What is a bail report?
According to the 2015 Judiciary Bail and Bond Policy Guidelines, a bail report is an official background check and community ties of an accused person.
The purpose of the report is to verify information provided to the court by the accused and enable the court to impose reasonable bail terms.
- What happens when the sum of money is too high for the accused?
An accused person who complains about the bail terms simply seeks a review from the court.
Conversely, an accused person who seeks to be released on bail in the High Court is required to make a formal application.
- What is anticipatory bail?
This is bail by a person who is yet to be arrested but has reasons to believe that his freedom of liberty is about to be breached.
Anticipatory bail is only granted by the High Court on application.
Applicants have to prove that their right to liberty is likely to be compromised by a state organ.
Further, the applicant must show that the apprehension of arrest is “real and not imagined or speculative”.
Accused persons granted anticipatory bail are free from any arrests as long as they report to and cooperate with the investigative authorities.
- What is bail pending appeal?
This is a type of bail given after the accused is unsuccessful in the case against them but before the appeal stage.
The purpose of bail pending appeal is to secure their liberty during the appeal.
The burden of proof lies with the convicted person to demonstrate that there are overwhelming chances of success of their appeal.
The court grants an accused person bail, and attaches the conditions that are deemed necessary to ensure that the accused person attends court as and when required.
- What is bail supervision?
Bail supervision is the mechanism used by courts to monitor the accused person where appropriate.
A probation officer supervises the accused person who has been released on bail, with the goal of ensuring that they comply with bail conditions and attend court as and when required.
In Kenya, there is no bail supervision system at present, thus the enforcement of bail conditions is unfortunately not effective.
- How can you pay for bail or bond?
Acceptable modes include cash, a car logbook or other documents of title only.
- Is the money ever refunded?
There is no refunding of any sort since you are paying to be set free.
The money paid is refunded to you if you attend all your court appearances faithfully and are successful in the case.
- What are the compelling reasons for grant or denial of bail or bond?
The right to bail is not automatic since there is the determination of whether there are compelling reasons that can justify its denial.
In practice, courts make this evaluation by considering some of the following non-exhaustive factors:
- The nature and seriousness of the offence and the punishment to be meted out if the accused person is found guilty.
- The strength of the prosecution case.
- Character and antecedents of the accused person.
- The failure of the accused person to observe bail or bond terms on previous occasions
- Likelihood of interfering with witnesses.
- The need to protect the victim or victims of the crime from the accused person.
- The relationship between the accused person and potential witnesses.
- The accused person is a flight risk.