Bail and Bond

Article 49(1)(h) of the Constitution of Kenya 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.”

Key Definitions

What is Bail?

It is cash one pays to be released out of custody as the trial goes on. If he/she absconds a warrant of arrest is issues and the money deposited is forfeited.

What is Bond?

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.

What is a Security?

A sum of money pledged in exchange for the release of an arrested or accused person as a guarantee of that person’s appearance for trial.

What is a Surety?

A 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 title to a property, which can be forfeited to the court if the accused person fails to appear in court.

What are the Principles of Bail and Bond?

1. Right of accused person to be presumed innocent
2. Right of accused person to liberty
3. Accused person’s obligation to attend trial
4. Right to reasonable bail and bond terms
5. Consideration of rights of victims
6. Bail and bond determination must balance the rights of the accused person and the interest of justice

What are some of the considerations the courts and/police shall factor when giving bail or bond?

1. The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.
2. The strength of the prosecution case.
3. Character of the accused person.
4. The failure of accused person to observe bail or bond terms
5. Likelihood of interfering with witnesses and evidence.
6. The need to protect the victim or victims of the crime
7. If the accused person is a flight risk
8. Whether accused person is gainfully employed
9. Public order, peace or security
10. Protection of the accused person.
11. Age of the accused

What is the Process of paying Cash Bail in Court?

• Particulars of the accused person are given to the officer in charge of the registry.
• File is retrieved.
• Verification of cash bail payable and issuance of a cash bail/deposit payment advice
• Payment of cash bail through mobile money services, bank deposits or any other authorized mode of payment.
• Verification of payment at the court’s cash office.
• Issuance of cash bail deposit receipt.
• Signing of the bail bond form by the accused person and surety, where applicable.
• Issuance of the release order by the court in triplicate.
• Presentation of receipt and release order to the court orderly or officer in charge of prison to secure release of the accused person.

What is the Process of giving Bond within Court?

• Particulars of the accused person are given to the officer in charge of the registry.
• File is retrieved from the registry for verification of bond terms.
• Presentation of identification documents, which include:
a. Identification card/passport
b. Letter from the chief
c. Recent passport size photos

• Presentation of surety and security documents, which include:
a. Land ownership documents
b. Logbooks
c. Pay slips
d. Share certificates
e. Bank drafts
f. Insurance Policy

How are Bond/Security documents verified?

• The officer in charge of the registry shall make reference to the land registry, motor vehicles registry, registrar of persons and other relevant offices.
• The documents are certified by the issuing authority.
• Valuation of the security.
• The file is taken to the magistrate for examination and approval.
• Preparation of necessary documents, i.e., preparation of particulars of surety, release order, bond and bail bonds where the accused is in custody.
• Details of the surety are recorded in the Security Register.

NB: In all cases, in exercise of their discretion, the magistrates may request for further verifications/enquiries, as they deem necessary.
Where bail is not raised, a remand warrant is issued.

What is the process of release of Cash Bail/ Securities?

At the conclusion of every case, the magistrate shall make an order for the release of cash bail/securities.
Refund of Cash Bail
• Presentation of original deposit receipt, identification document and bank account particulars.
• File is retrieved.
• Receipt is verified.
• The file and documents presented are forwarded to Accounts section for processing.
• Payment Voucher is prepared.
• Money is refunded through cheque or EFT.
• The Head of the station shall at all times ensure prompt cash bail refunds

Release of Security
• Request may be made orally or in writing to the officer in charge of the registry.
• File is retrieved.
• Verification is done.
• Security is released to the surety.
• Depositor signs for receipt of the security in the securities register.

Police Cash Bail Refund
• Money is released to the accused in court before plea is taken.
• If the accused person does not attend court, the money shall be forfeited to the state by the court.

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