ABDURRAOOF SWALEH BAWAZIR
THE LAW REGARDING BAIL IN KENYA AND ITS PRACTICE
Bail is one of the rights protected by the Constitution, based on the notion that one is presumed innocent by the law until proven guilty. In general, an individual accused of a crime must be held in the custody of the court until his or her guilt or innocence is determined. However, the court has the option of releasing the individual before that determination is made, and this option is called bail.1 Bail is set by the judge during the defendant's first appearance. For many misdemeanors, bail need not be set. For example, the defendant may be released on the issuance of a citation such as a ticket for a driving violation or when booked for a minor misdemeanor at a police station or jail. But for major misdemeanors and felonies, the defendant must appear before a judge before bail is determined.
Bail is granted to ensure the attendance of the suspect at the trial. Bail, therefore, consists of the temporary release of an accused person while awaiting trial. It is an agreement between the accused (and his sureties if any) and the court that the accused will pay a certain amount of money fixed by the court should he fail to attend court as and when required by the court.2 Bail is temporary as it is based on the assumption that the accused will show up in court if and when required to do so. The sureties bind themselves to the court to forfeit whatever amounts they have bound themselves.
An accused person can also be released upon her or his own recognizance, which is the accused’s written, uninsured promise to return for trial. Such a release occurs only if the suspect has steady employment, stable family ties, and a history of residence in the community. Willful violation of the terms of a personal recognizance constitutes a crime.
Historical Development of Bail
According to Luyali in Right to Bail under the Kenyan Laws;3 “… bail has its roots in the legal system of Anglo-Saxon times. It arose out of medieval sheriffs’ desire to avoid costly and troublesome burden of personal responsibility for those in their charge. The sheriffs were heavily fined for the escape of the prisoner. In 1275, a first enactment was undertaken in the Westminster statute (in the UK) with the aim of reducing abuse by the sheriffs of their wide powers to refuse bail. The enactment systematized and codified the ad hoc arrangements between the sheriffs and the accused with the hope of standardizing the practice of bail.
The right to bond or bail is founded upon the need to protect the personal liberty of a person who has not yet been found guilty of any offence. Bail is a right. The rationale for granting bail is based on the principle of presumption of innocence, sometimes referred in Latin as Ei incumbit probatio qui dicit, non qui negat - one is considered innocent until proven guilty. Any person accused of committing a crime is presumed innocent until proven guilty in a court of law. Therefore a person charged with a crime should not be denied freedom unless there is a good reason. There is the need not to imprison people who may later be found not guilty. Invariably, human rights always find their best expression through Criminal Law, even at International Law…”
Bail is a mechanism used to ensure the attendance to court by an arrested person. Presumption of innocence places upon the government the burden of proving each element of the offence beyond any reasonable doubt. The presumption that a person is innocent until proven guilty is a fundamental precept of the criminal law. The question of bail involves a delicate balance between two competing values: the welfare of the society sought to be protected and fairness to the accused.
The presumption of innocence is the fulcrum of all fundamental rights and it is captured in Article 50 (2)...
Bibliography: Alexis de Tocqueville, 1835. Democracy in America. US
Cogan, J. K., 2002. International Criminal Courts and Fair Trials: Difficulties and Prospects. Yale
Farlex, S., 2008
K., C. J., 2002. International Criminal Courts and Fair Trials: Difficulties and Prospects. Yale
KLR Center, 2011
Luyali, E., 2011. Kenyaplex.com. [Online]
Available at: http://www.kenyaplex.com/resources/2038-right-to-bail-under-the-kenyan-laws.aspx
M. Lunguzi v R (1995) KLR.
Mavinda, C., 2011
Njuguna v R (2002) eKLR.
R v Hall (2002) All ER
R v Muneer Harron & 4 others (2009) eKLR.
Republic v Danson Mgunya & another (2010) eKLR
Republic v Danson Mgunya & another (2010) eKLR.
The Constitution of Kenya, 2010.
Children 's Act, 2001.
African Charter on Human and People’s Rights, 1981.
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