Bail hearings & criminal trials under Kenya law are two aspects of
the justice system that people accused of a crime may have to go
through. The process provides for a series of motions and appearances as
a case moves from arrest to arraignment to trial. These proceedings are
a part of the process that occur after arraignment and before trial.
The purpose is to determine whether the court will force the defendant
to deposit cash or other assets. It is set when there is likelihood that
the defendant may try to leave town; and in cases where the defendant
is considered a danger to others it may be denied entirely. Bail
hearings & criminal trials are governed by the rules of court but
also involve rights protected by the Constitution.
How Is Bail Determined? Under the Kenya law,if you are arrested you may be able to pay a certain amount of money in
order to leave prison before trial. This is known as posting bail, but
the amount of bail can vary depending on the state and several
different factors. Generally, a judge under kenya law will use a bail schedule to
determine how much your bail should be. This schedule under kenya law can be affected
by things such as the suspect’s criminal record and history, the
seriousness of the offense, and the suspect’s ties to family, community
and employment. The main factor a judge will consider is the severity
of the crime, when a defendant is accussed of committing a violent crime
or a crime against a particularly vulnerable group, the judge may
increase the bail amount. When looking into a suspect’s ties to the
community, employment and family the judge is looking into the flight
risk of the defendant. The judge wants to make sure that the bail
amount will be enough to keep the person from fleeing, but also to
ensure the person will come to court in order to reclaim the bail
amount.
PROVISIONS AS TO BAIL :Bail in certain cases:Section 123 of the Kenya criminal procedure code states:
(1) When a person, other than a person accused of murder, treason, robbery with violence, attempted robbery with violence and any related offence isarrested or detained without warrant by an officer in charge of a police station, orappears or is brought before a court, and is prepared at any time while in thecustody of that officer or at any stage of the proceedings before that court to give
bail, that person may be admitted to bail:
Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearances provided hereafter in this Part.
(2) The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.
(3) The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.
Bail bond
Sec 124 of the criminal procedure code states that:"Before a person is released on bail or on his own recognizance, a bond forsuch sum as the court or police officer thinks sufficient shall be executed by that person, and, when he is released on bail, by one or more sufficient sureties,conditioned that the person shall attend at the time and place mentioned in thebond and shall continue so to attend until otherwise directed by the court or police officer."
Discharge from custody after payment of bond
Section 125 of the criminal procedure code states that
(1) As soon as the bond has been executed, the person for whose
appearance it has been executed shall be released, and when he is in prison the
court admitting him to bail shall issue an order of release to the officer in charge
of the prison and the officer on receipt of the order shall release him.
(2) Nothing in this section or in section 123 shall require the release of a
person liable to be detained for some matter other than that in respect of which
the bond was executed.
Deposit instead of recognizance
Section 126 of the criminal procedure code states that
"When a person may be required by a court or officer to execute a bond, with
or without sureties, the court or officer may, except in the case of a bond for good
behaviour, require him to deposit a sum of money to such amount as the court or
officer may fix, or to deposit property, in lieu of executing a bond."
Power to order sufficient bail when that first taken is insufficient
Sec 127 states:"If, through mistake, fraud or otherwise, insufficient sureties have been
accepted, or if they afterwards become insufficient, the court may issue a warrant
of arrest directing that the person released on bail be brought before it, and may
order him to find sufficient sureties, and on his failing so to do may commit him to
prison."
Discharge of sureties:Section 128 of the CPC states:
(1) All or any of the sureties for the appearance and attendance of a person released on bail may at any time apply to a magistrate to discharge the bond either wholly or so far as it relates to the applicant or applicants.
(2) On an application being made under subsection (1) the magistrate shall issue his warrant of arrest directing that the person so released be brought before him.
(3) On the appearance of the person pursuant to the warrant issued under subsection (2) or on his voluntary surrender, the magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicant or applicants,and shall call upon the person to find other sufficient sureties,and if he fails to do so may commit him to prison.
Death of surety to a bond:Sec 129 of the Cpc states:"Where a surety to a bond dies before 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."
Persons bound by recognizance absconding may be committed:Section 130 states that"If it is made to appear to a court, by information on oath, that 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 fit to admit him to bail upon further recognizance."
Forfeiture of recognizance: Sec 131 states:
(1) Whenever it is proved to the satisfaction of a court by which a recognizance under this Code has been taken, or, when the recognizance is for appearance before a court, to the satisfaction of that court, that the recognizance has been forfeited, the court shall record the grounds of proof, and may call upon any person bound by the recognizance to pay the penalty thereof, or to show cause why it should not be paid.
(2) If sufficient cause is not shown and the penalty is not paid, the court may
proceed to recover it by issuing a warrant for the attachment and sale of the
movable property belonging to that person, or his estate if he is dead.
(3) A warrant may be executed within the local limits of the jurisdiction of the
court which issued it; and it shall authorize the attachment and sale of the
movable property belonging to the person without those limits, when endorsed by
a magistrate within the local limits of whose jurisdiction the property is found.
(4) If the penalty is not paid and cannot be recovered by attachment and sale,
the person so bound shall be liable, by order of the court which issued the
warrant, to imprisonment for a term not exceeding six months.
(5) The court may remit a portion of the penalty mentioned and enforce
payment in part only.
(6) When a person who has furnished security is convicted of an offence the
commission of which constitutes a breach of the conditions of his recognizance,
a certified copy of the judgment of the court by which he was convicted may be
used as evidence in proceedings under this section against his surety or sureties,
and, if the certified copy is so used, the court shall presume that the offence was
committed by him unless the contrary is proved.