1.There is no single legislative enactment in Kenya that defines the term “bail/bond”. #RightToBail
2.It should be noted that there is no legislative guidelines on bail and the Courts are left with an unfettered discretion to determine whether to grant bail. #RightToBail
3.The primary object of arrest and detention of an accused person is primarily to secure his or her appearance at the time of trial and to ensure that in case he/she is found guilty, he/she will be available to receive the sentence. #RightToBail
4.However, if he/she presence at the trial could be reasonably ensured otherwise than his/her arrest and detention, it would not be proper and or just to deprive him/her liberty during the criminal proceeding he/she is facing. #RightToBail
5.The law on bail has two conflicting demands, fundamental rights of an individual (suspect/accused) and the greater public interest. #RightToBail
6.There should be peace and safety of the public/people and their property. #RightToBail
7.The Courts of Law and all organs of Government have a duty to ensure that national and international security is preserved #RightToBail
8.The fundamental rights of an individual must be balanced with greater public interest. #RightToBail
9.Under the Constitution of the Republic of Kenya, the right to bail flows from the provisions of Article 49(1)(h) #RightToBail
10.“(1) An arrested person has the right— (h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released”. #RightToBail
11.It is important to note that in the previous Constitution, the right to bail was previously restricted. #RightToBail
12.The right to bail was not available to offences attracting maximum sentence of death. #RightToBail
13.It is to be noted that unlike in the past when an accused person had to demonstrate why he should be released on bail/bond, that duty now properly belongs to the State #RightToBail
14.Hon. Justice Fred A. Ochieng held in the case of Republic –vs- Ahmed Mohammed Omar & 6 Ors High Court Nairobi Criminal Case No. 14 of 2010, “ … the right to bail pending trial is not absolute”. #RightToBail
15.“...having taken into account gravity of the offence, which the accused has been charged& bearing in mind the fact that if were convicted he could be sentenced to death, I find that there is a real possibility of ... being tempted to abscond from jurisdiction. #RightToBail
16.In the same case, Republic –vs- Taiko Kitende Muinya Justice Fred A. Ochieng stated that although the constitution does not cite the seriousness of the offence with which an accused is charged as a factor, it is undoubtedly a relevant factor. #RightToBail
17.The approach Hon. Justice L. A. Achode in Republic –vs- Ahmad Abolafathi Mohammad & Anor to be a prudent exercise of the judicial discretion in grant of bail in grave offences such as terrorism. #RightToBail
18.The rights of the society must be balanced with the rights of the accused person. #RightToBail
19.Hon. Justice Emukule J in Republic –vs- Dorine Aoko took a different view in relation to cases which attract a maximum sentence of death. He held that, #RightToBail
20.“…to my mind again, those compelling reasons are the very same ones spelt out in section 72(5) of the repealed constitution, and elaborated in section 323 of the criminal procedure Code, #RightToBail
21.namely that the accused person, as the applicant in this case, is charged with the offence of murder, like treason, robbery with violence or attempted robbery with violence, are offences which are not only punishable by death, #RightToBail
22.but are by reason of their gravity (taking away another person’s life, disloyalty to the state of one’s nationality ...) are offences which are by their reprehensiveness not condoned by society in general. #RightToBail
23.It would thus hurt not merely society’s sense of fairness &justice, & more so, kin or kith of the victim to see a perpetrator of murder, treason or violent robbery (committed or attempted) walk to the street on bond or bail pending his trial. #RightToBail
24.A charge of murder, treason, robbery with violence, (committed or attempted) would thus be compelling reason for not granting an accused person bond or bail …” #RightToBail
25.Republic –vs- Margaret Nyaguthi Kimeu, Hon. Justice Thuranira Jaden held that; #RightToBail
26.“However, the Court has discretion to grant or refuse bail depending on the circumstances of each case. #RightToBail
27.The court is required to take into consideration settled principles of law when determining whether or not to grant bail pending hearing of a criminal case or pending the hearing of an appeal #RightToBail
28.The said principles include the following;
The nature of the offence;
The strength of the evidence;
The character or behaviour of an accused;
The seriousness of the punishment to be meted if the accused is found guilty.
#RightToBail
The nature of the offence;
The strength of the evidence;
The character or behaviour of an accused;
The seriousness of the punishment to be meted if the accused is found guilty.
#RightToBail
29.Another factor to consider is whether the accused will interfere with witnesses if he is released on bond.” #RightToBail
30.Hon. Justice Muchemi in Republic –vs- Lucy Njeru Waweru & Ors (supra) stated that; #RightToBail
31.“...the likelihood of interfering with the witnesses, of influencing them or of intimidating them are compelling reasons under Article 49(1)(h) of the Constitution. #RightToBail
32.It should be noted that there is no legal impediment in adducing evidence gathered by police during investigation. #RightToBail
33.The Prosecution is at liberty to disclose evidence so far gathered during the bail application while not losing sight of the presumption of innocence. #RightToBail
34.What are the compelling reasons? Should Court’s adopt the approach by Hon. Justice Emukule J in Republic –vs- Dorine Aoko in determining what constitutes compelling reasons? #RightToBail
35.While the Court’s have discretion in determining whether to grant bail/bond, the discretion must be and should be exercised judiciously by taking into account both the interest of the individual, and the community of which the individual is a part. #RightToBail
36.Based on the few authorities cited, it can be deduced that Courts must consider the some of the following criteria in determining whether to grant bail/bond; #RightToBail
37.The nature of the charge or offence and the seriousness of the punishment to be awarded if the applicant is found to be guilty: where the charge against the accused is more serious and punishment heavy, #RightToBail
38.there are more probabilities and incentive to abscond, whereas in case of minor offences there may be no such incentive; #RightToBail
39.Interference with prosecution witnesses. Where there is a likelihood of the accused interfering with the prosecution witnesses if he is released on bail, bail may be refused. He will obstruct the courts of justice; #RightToBail
40.In the case of DPP –vs- Mulvey Supreme Court (Ireland) Appeal no. 451 of 2013 the Court examined the right to bail in Ireland, it was stated that; #RightToBail
41.“ the prosecution must establish their objection to bail as a matter of probability and secondly, that the evidence supporting the objection must have the degree of cogency which satisfies the court itself that the objection has been made out as a probability.” #RightToBail
42.“The constitutional right of the applicant for bail to liberty must, in every case where there is an objection to the granting of bail, be balanced against the public interest in ensuring that the integrity of the trial process is protected. #RightToBail
43.Where there is evidence which indicates as a matter of probability that the applicant, if granted bail, will not stand his trial or interfere with witnesses, and the right to liberty must yield to the public interest in the administration of justice. #RightToBail
44.It is in that context that hearsay evidence may become admissible, where the court hearing the application is satisfied that there are sufficient grounds for not requiring the witness to give viva voce evidence. #RightToBail
