KABARAK UNIVERSITY

SCHOOL OF LAW

CRIMINAL PROCEDURE & PRACTICE

GROUP 5 – GROUP WORK

NAME REGISTRATION NUMBER

XBEN OMWANDHO LAW/M/1847/09/19

BRAMWEL TOO LAW/
CAROLINE KAARA LAW/
SAMWEL LEPORE LAW/MG/
BRIAN K. SIRMA LAW/M/2102/09/19
LAW/
LAW/
LAW/
LAW/MG/

BAIL AND BOND

a) Bail
 Bail can be defined as the release of a person subject to a duty to surrender to custody at
an appointed time and place.1 Bail therefore provides the accused with temporary
freedom to attend to his/her case from ‘outside’2 as opposed to remaining in police cells
or remand prisons.
Bail is also defined as;
“An agreement between an accused person or his/her sureties and the court that the
accused person will attend court when required, and that should the accused person
abscond, in addition to the court issuing warrant of arrest, a sum of money or property
directed by the court to be deposited, will be forfeited to the court”.3
In Ramadhan Iddi Ramadhan & 5 others v Republic,4 Justice Nyakundi defined
Bail/Bond as a means of procuring the release of an accused person from legal custody
upon posting sufficient security for his appearance at a time and place designated, to
answer to a criminal charge. Thus the Court gives liberty to an accused person and at the
same time, secures the intent of the law to punish the offender by insuring his future
attendance in court and by compelling him to remain within the jurisdiction of the court.
In some instances, the accused/defendant may secure his/her qualified temporary release
with money either paid to the Officer in Charge of a Police Station or the Court, in such
instances the accused is said to have been bailed out or he/she is out on bail.
It is also important to note that a court may demand for collateral as security for the
temporal release and the defendant will have to produce documents such as original title
deed or log book among others. When such collateral is given as security, then the
defendant is out on bond. In most petty offences, the accused may be released on either
free bond or signature bond.
In Kenya, the Constitution provides that an arrested person has 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.5 Bail and Bond is a very important joint in fair
administration of justice, specifically in a jurisdiction where any accused person of any

1
John Sprack, A Practical Approach to Criminal Procedure, (14th Edition, Oxford University Press,2012)
2
Outside means, not under the police custody or in the prisons remands.
3
Policy Guidelines on BAIL AND BOND issued by the national Council on the Administration of Justice in March 2015
4
Ramadhan Iddi Ramadhan & 5 others v Republic [2019] eKLR
5
Constitution of Kenya 2010, Article 49 (1)(h)
 offence is to be presumed innocent until the contrary is proved. 6 The same is also
anchored in Article 14 (2) of the ICCPR7 which Kenya is a party to subject to Article 2(5)
of the Constitution of Kenya 2010 providing that the general rules of the International
Law shall form part of the law of Kenya. The subject is meant to ensure that the innocent
is not punished as well as punishing the guilty. The courts are therefore left with the
discretion to decide and determine what is termed as reasonable conditions while granting
bail or bond.
The enjoyment of this right is not absolute and can be limited, if and when the courts are
convinced with the compelling reasons and the effects of such as far as fair
administration of justice is concerned.
The following are the various categories of bails and bond;
i) Police Bond or Bail;

During the arrest and charge procedure at the police station, the question of bail can arise
either as a result of the police charging the arrestee or as a result of their deciding that he
should be released from the police station without being charged. In the last resort, the
decision on whether or not the arrestee should be bailed rests with the custody officer,
although he will be influenced by the investigating officers.

In Kenya, section 53(1) of the National Police Service Act8 states that; indicates that a
police officer investigating an alleged offence may require any person to execute a bond
subject to the condition that the person shall duly attend court when required to do so.
This section gives the police powers to grant bail. The police may agree to grant bail at
the police station. It is usually the case that bail is granted without any need for surety
(e.g. money), only an undertaking (i.e a promise to appear).

An accused person may be denied bail at the police station if the police are convinced
that there are compelling reasons to do so and those reasons would ordinarily be similar
to those that the court will look at while assessing an application for bail. Although
police decision making on bail or bond is really unpredictable in Kenya9.

6
Ibid, Article 50(2)(a)
7
International Covenant on Civil and Political Rights, Article 14(2)
8
National Police Service Act, 2011, Chapter 84 Laws of Kenya.
9
Policy Guidelines on BAIL AND BOND issued by the national Council on the Administration of Justice in March 2015
 Note:

a) The bail receipt will indicate when and where the accused to either appear to police
station or court depending on which one comes first. The police may from time to
time amend the appearance date depending on the circumstances.
b) The bail amount should be handed into court by the date on which the arrested person
should appear in court, and a receipt obtained.

ii) Anticipatory Bail (Bail Pending Arrest);

This is a form of bail that is usually granted by the courts upon application when the
applicant anticipates that he or she will soon be arrested and be placed in police custody.
In circumstances when this application is granted, the applicant will not be at risk of been
arrested and be locked in police cells until formal charges are preferred against him or
her. It is more or less a temporary immunity from arrest.

The High Court may grant anticipatory bail, that is, bail pending arrest, provided the
applicant demonstrates that his or her right to liberty is likely to be compromised or
breached unlawfully by an organ of the state that is supposed to protect this right. 10
Further, the applicant must demonstrate that the apprehension of arrest is “real and not
imagined or speculative.”11

The Constitution of Kenya 2010, just like the previous constitutional regime, it does not
expressly deal with this ‘unique bail’. However, this has not made it technically
impossible for such applications to be brought before the courts. Most cases that have
been brought to court on this subject, have been based on the strengths in the provisions
of Article 22(1)12 which have accords every person the right to institute a proceeding
claiming that a right or a fundamental freedom in the Bill of Rights has been denied, is
being violated, infringed or threatened. While the High Court in Mailu v Republic and 2

10
Ibrahim Gichuhi Mugo v Inspector of Police [2013] eKLR
11
Samuel Muciri W’ Njuguna v Republic, Miscellaneous Criminal Appeal No. 710 of 2002, High Court at Milimani Law Courts,
Nairobi; Joseph Cherere Mwangi v Republic [2004] eKLR
12
Constitution of Kenya 2010, Article 22
 others13 utilized the provisions under Article 165,14 granted the High Court the
jurisdictions to hear and determine application for redress, violation or infringement of,
or threat to, a right or fundamental freedom in the Bill of Rights. The same is also
anchored in Section 123 of the Criminal Procedure Code15.

An application under this bail may be brought to court as a petition as it is backed by the
provisions in the Bill of right. Any application which is contrary to this may be rejected
as was in the case in Wafula v Republic16 because the application was brought by way of
notice of motion instead of a petition.

In the case of W’Njuguna v Republic17, where the Court held that anticipatory bail can be
granted:-

“…when there are circumstances of serious breaches of a citizen’s rights by an organ of

the state which is supposed to protect the same.”

When successful, the court may grant anticipatory bail with the following conditions as
was in Angelina Mumbua Mutuku & another v Inspector General of Police18;

a) The Applicants shall present themselves before the police when summoned, either in
person or accompanied by his lawyer, for the purposes of assisting the police with
investigations.
b) The Applicants shall attend Court if and when required to do so.

iii) Bail Pending or During trial;

13
Eric Mailu v Republic, Nairobi High Court Miscellaneous Application No. 24 of 2013, [2013] eKLR
14
Ibid, Article 165
15
Criminal Procedure Code, Cap 75
16
Eldoret High Court Miscellaneous Application No. 136 of 2012, [2012] eKLR
17
W’Njuguna versus Republic, Nairobi Misc. Cr. Case No. 710 of 2002, [2004] 1 KLR 520
18
MISCELLANOUS CRIMINAL APPLICATION NO. 72 OF 2017
Under the Constitution of Kenya 2010, bail is a right provided for in Article 49 (1)(h) stating that
an arrested person has the right to be released on pond or bail, on reasonable conditions, pending
a charge or trial, unless there are compelling reasons not to be released. In this case, an accused
person may be denied bail when the prosecution makes a successful case against bail. Such
prosecution success can only arise when the court is satisfied that in deed there are compelling
reasons as to why the accused should not be released on bail.

Under the previous constitutional regime19, bail was not available where one was charged with an
offence punishable by death. Exception could only be made for child offenders as provided for
in the Children Act which granted bail to child offenders. This provision was given strength by
section 123(1) of the Criminal Procedure Code20 categorizing offences such treason, murder
robbery with violence among others, as those which bail is not available for. This means, bail
was not generally available for capital offences.

The paradigm shift is in the Constitution of Kenya 2010, Article 49(1)(h) provides a possibility
of bail for any offence as was demonstrated in the case of Danson Mngunya.21

Before granting or refusing to grant bail, the court may take into account, inter alia, the;

a) The nature and seriousness of the offence and probable penalty upon conviction; in
this case the court while listening to the prosecution will have to determine the
surrounding circumstances and the nature of the offence. Whether it will be practical to
release the accused and allow him to roam freely in the society, considering what the
society can do in protest of such release as well as the possibility of the accused attending
trial. In John Kahindi Karisa and 2 others v Republic22, the judge held that;
“Self-preservation is a natural reaction for any human being and the risk of flight is real
when one is faced with a capital offence.”
b) Defendant’s or accused bail Record; If there are previous occasions where the accused
has absconded after being released on bail, then the courts may deny him/her based on

19
Section 72 of the repealed constitution of Kenya
20
Criminal Procedure Code, Cap 75
21
Penal Code, Section 203 and 204; the accused person had been charged with murder and was not qualified for bail under
Section 72(5) of the repealed constitution, murder being a capital offence, later after 2010, the accused approached court and
were granted bond in the sum of Kshs. 3 million with two sureties for a like amount.
22
Mombasa High Court, Criminal Case No. 23 of 2010,[2010]eKLR
 this. The accused may also be having several other cases affecting or tainting his
character as was in the case of Mary Wambui v Republic.23
c) Matters Relating to the Security of the state; In Republic v Diana Suleiman,24 the
accused person had been charged with murder, while presenting his objection to grant of
bail, the prosecution cited national security as the main concern. Indicating that the
accused together with others, stormed into a police station in Lamu, killed several police
officers while setting others held in police custody free. The court denied the accused
bail. Others include;
d) Age of the Accused; The Children Act25 indicates that; (1) Where a child is brought
before a court and charged with an offence, the Court shall inquire into the case and may
release the child on bail on such terms as the Court may deem appropriate. (2) Where bail
is not granted the Court shall record the reasons for such refusal and shall inform the
child of his right to apply for bail to the High Court.
e) The probability that the accused may not surrender himself for trial; if the prosecution
can convince the court that the accused, if released on bail may abscond may be based on
previous records of abscond then the court may deny him/her bail. This is also dependant
on the magnitude of the offence as was in the case of Mary Wambui Kinyanjui v
Republic26
f) Interfering with the witnesses; The burden of proving interference with witnesses is on
the prosecution and this must not be on mere allegations but must be backed with facts.
In R v Lucy Njeri Waweru & 3 others27, the court denied the accused persons bails as
there was direct relationship between them and the witnesses and the probability of them
interfering was very high.
g) Health of the accused;
h) Previous Criminal Record
i) Detention for protection of the accused; the safety of the accused may not be guaranteed
while out on bail.

23
High Court at Nairobi, Misc., Crim. Application No. 353 of 2006, [2006] eKLR
24
MISCELLANEOUS CRIMINAL APPLICATION NO. 55 OF 2014
25
Children Act, Cap 141, laws of Kenya.
26
Supra, note 23
27
Nairobi High Court Criminal Case No. 6 of 2013, [2013] eKLR
 iv) Bail Pending Appeal;

Appeal is an expression of dissatisfaction with the ruling or judgment from a specific court. It
therefore a request from a higher (to the previous court) court to look into possible error in
judgments by the junior court.

Appeals arising from the judgments made at the magistrate or court martial are lodged with the
high court, those from the High Court and lodged with the Court of Appeal with few arising from
the court of Appeal can be lodged at the Supreme Court. Bail Pending appeal must be
determined in the court with such jurisdiction to hear the appeal.

Section 356(1) & (2) of the Criminal Procedure Code states;

“(1) The High Court, or the subordinate court which has convicted or sentenced a person, may
grant bail or may stay execution on a sentence or order pending the entering of an appeal, on
such terms as to security for the payment of money or the performance or non-performance of
any act or the suffering of any punishment ordered by or in the sentence or order as may seem
reasonable to the High Court or the subordinate court.

(2) If the person in whose favour bail or a stay of execution is granted under this section is
ultimately liable to a sentence of imprisonment, the time during which the person has been
released on bail, or during which the execution was stayed, shall be excluded in computing the
term of his sentence, unless the High Court, or failing that court the subordinate court which
convicted and sentenced the person, otherwise orders.”

a) This means that one may decide to make the application for bail pending appeal at either the
subordinate court or in the High Court. If this Appeal is made at the magistrate court and the
court refuses to grant this bail, the applicant may only approach the high court to appeal on the
Refusal and some rare occasions Court of Appeal may also listen to Appeals arising from the
High Court’s refusal. In John Koyi Waluke & another v Republic28 the accused (now the
applicant), was convicted in the magistrates court(Anti-Corruption and Economic Crimes
Division) for corruption economic crimes relating charges, resulting from the what the court said
28
John Koyi Waluke & another v Republic, 2020 eKLR
to have been a well-choreographed scheme to steal money from the Kenya National Cereals and
Produced Board. The applicant approached the high court for bail pending Appeal. The counsels
for the applicant (Mr. Elisha Ongoya) raised the following grounds for such grant;29

a)  Firstly, the 1st Applicant’s appeal has high chances of success.

(b) There are exceptional circumstances on account of advanced age and sickness of the
1st Appellant to warrant his release on bail pending appeal.

(c) That the sentence imposed by the trial Court was illegal, irregular and in any event harsh in
the circumstances.

Being satisfied with reasons, the Judge granted the applicant Bail Pending Appeal.

SURETIES

30
In this case courts may want assurance of the bail by use of surety or sureties. A surety is a
person who promises to forfeit a sum of money or property fixed by the court known as a
29
Ibid
30
Section 124 of the criminal procedure code
recognizance if the accused person fails to accused attend court as required.31 In this case the
recognizance is determined by court and it should not be excessive. If the accused fails to attend
court or answer his bail, then the surety is liable part or the entire recognizance. The court must
access the sureties so as to ascertain itself the secure release of the accused person. The surety
must;

a) Appear in court
b) Give evidence on oath
c) Must confirm on them
I. Financial resources
II. Character
III. Previous convictions
IV. Relationship and proximity of the accused
d) Understand his obligation to the court if the accused fails to show up
e) Every time that the surety comes to court, he or she must carry documents of title being
offered as security
f) The property should be in the name of the surety as a registered owner
g) Value report confirming the property having sufficient and equivalent value to the
security

Discharge of sureties

In this respect if the surety is not assured of the behavior of the accused for example absconding
court or misunderstanding between the surety and the accused then a remedy comes in for the
surety in which he applies for a discharge at any time32

If a surety dies before the bail is forfeited the accused must look for another surety and may
remain in custody until he finds one. While the property of the deceased is discharged.33

31
ESSENTIALS OF CRIMINAL PROCEDURE IN KENYA Patrick Kiage
32
Section 128 of the criminal procedure code
33
Ibid S 129
If there is believe that the accused may escape to another country then the surety is required to
swear an affidavit in which a warrant of arrest is issued and he remains in prison unless courts
see fit for bail upon further recognizance34

Case law

In the case of John Otieno V Republic [2015] eKLR35, where the surety failed to bring the
accused to court and therefore his land was taken from him he appealed but his appeal was
dismissed because the surety failed to do his obligation. The surety however stated that he
wanted to discharge because the surety was not cooperative but was unable.

BAIL FORFEITURES

This is the situation when bail is released to the court without being able to do any future
repayment. It can be released either voluntary or involuntary, depending on the situation.

Voluntary bail forfeiture appears when the defendant releases the bail that they paid. He can do
that if he wants to cover court's costs, fines and legal fees.

Involuntary bail forfeiture happens when the person does not appear in court after he/she was
released from custody. He can still get his money back but only if there was a good reason.

Penalties for non-compliance with conditions of release bond penalties for noncompliance
with conditions of release bond

(a) If the defendant shall fail to appear as required by the defendant's bail or shall commit any
material breach of the conditions, the court shall issue a warrant and cause the arrest of such
defendant and the cancellation of any bail and the return to the court for a redetermination of the
disposition of the defendant.

(b) Upon the return of the defendant before the court pursuant to subsection (a) of this section of
the legislative act or if the defendant shall not be found, the court shall act with respect to the
34
Ibid S 130
35
eKLR
forfeiture of any form of guaranteed or not guaranteed conditions of release bond pursuant to the
Rules of the Superior Court and shall re-determine the type and amount of bail, and conditions of
the further release of the defendant. Notwithstanding any law to the contrary, no property, cash,
surety or other assets shall be forfeited except upon failure of the accused to appear as required
by any court.

(c) If the defendant knowingly fails to appear as required or knowingly breaches any condition of
release, each such failure or breach shall be a separate crime, and upon conviction thereof shall
be punished as per the case he/she committed.

(d) The Justice of the Peace Court shall have jurisdiction over violations of this section if
punishable as misdemeanors and if the jurisdiction over the underlying offense remains with the
Justice of the Peace Court.

(e) Any defendant released pursuant to this chapter shall notify the court, before which the case
is pending, of any changes of address or residence within 5 days of such change. Failure to make
such notification will result in constructive receipt of any subpoena issued to the defendant by or
on behalf of the court to the last address or residence given to the court by that defendant.

(f) Nothing in this chapter shall interfere with or prevent the exercise by any court of its power to
punish for contempt.

RECOGNIZANCE

Dictionary definition: a form of bail, promise made by the accused to the court that they will
attend all required judicial proceedings and will not engage in further illegal activity or other
prohibited conduct as set by the court.

Legal definition: An obligation entered into before a judge or magistrate where by the party
binds themselves to owe a sum of money in the event that he does not perform a stipulated act.

This is mostly common in criminal bail cases where the accused is released without a bail being
set commonly referred to as ’release on own recognizance’ (RoR) but they bind themselves to
owe a sum of money in the event that they do not conform to the release terms either by not
appearing before the court for hearing as required of him or further commission of illegal acts.
The amount pledged or to be forfeiture is a discretionary function of the court issuing the bail
and should not be excessive as every person has a right to be released on bond or bail, on
reasonable conditions, pending a charge or trial, unless there are compelling reason not to be
released.36 In the case of Republic v Hamisi Ali Mbwalame & 97 others [2016] the applicants
had been charged with the offence of forcible entry contrary to section 90 as read with section 36
of the Penal Code as count I and trespass upon private land contrary to section 3(1) as read with
section 11 of the Trespass Act as count II. They were released on a cash bail of Ksh 15,000/=
each for a security of bond of Ksh 50,000/=. Counsel for the applicants maintained that the
accused were poor people and that they could not afford such amount and stated that they still
lived upon the disputed land and could therefore not flee to anywhere. Appeal was allowed with
regards to Art 49 of the Constitution as read with section 124 of the Criminal Procedure Code
that provides for the release of an accused on his own recognizance upon executing his bond
without sureties. The accused were thereby released on a cash bail of Ksh 500/= each or
alternatively a bond of Ksh. 5,000/= with one surety of similar amount,

A surety maybe required to stand for and secure the bail in some instances and they are usually
bound it should any failure occur. The first duty of the surety is therefore to ensure that the
accused attends or presents himself before the court as required of him as the main essence of
bail and bond is to secure the attendance of the accused in court during the hearing of his case.37

In security for keeping the peace it maybe with or without sureties and it shall not exceed or
extend for a term longer than a year or if upon imprisonment shall not be longer than the longest
term of imprisonment38

FORFEITURE OF RECOGNIZANCE

36
Art 49 (h) Constitution of Kenya 2010
37
R v Hamisi Ali Mbwalame and 97 others [2016]eKRL
38
Paul Kiage, Essentials of Criminal Procedure in Kenya, Pg. 188.
Section 131 of the CPC clearly sets out the procedure that shall be followed should any non-
compliance occur.

If the said section is violated the aggrieved is entitled to appeal to the high court seeking for
revision orders.39

If the accused fails to answer his bail, the court issues a notice to any persons bound by the
recognizance to pay his penalty or prove why he is not to pay the recognizance.40

Misc. Appeal Case 10 of 2014, Dickson Kimathi v Republic [2014] the accused was admitted in
bail and pledged Ksh. 100,000/=. Subsequently he fell sick and could not present himself before
the court when summoned and the court went ahead to execute the forfeiture process. He
produced hospital documents in support of his illness which was not opposed by the prosecution
and not considered by the learned trial magistrate who went on to state that the process was
already complete and further ordered the accused to deposit a fresh cash bail. The appeal was
allowed with Lessit J stating that the two orders by the trial magistrate to forfeit the recognizance
and a new deposit of a cash bail were irregular and un procedural contrary to section 131 of the
CPC and therefore set aside and that the said amount of Ksh. 100,000/= be refunded to the
depositor forthwith.

If the penalty cannot be recovered, the surety is imprisoned for a term not exceeding 6 months 41.
However, this should be arrived at as the last resort if all the other options have failed as was
held in Criminal Revision 1 of 2019, Isaac Mwetish Chematai v Republic [2019], the applicant
had stood surety for the accused Moses Chematia Tutei who was charged with attempted
defilement contrary to section 9(1) of the Sexual Offences Act and was granted bond of Ksh
150,000/= with one surety of the same amount. Upon failure to appear before the court as
required the court issued a warrant of arrest for the surety held him in remand denying him the
chance to look or explain why he could not produce the accused and eventually committed him
to prison for 6 months. This was in violation of the right to a fair hearing 42 which accords any
person who is affected by a decision has a right to be heard and defend themselves and natural
justice. The appeal was allowed and the courts guided by Article 165(5) of the Constitution and
39
Section 132 of Criminal Procedure Code
40
Sec 131 (1) Criminal Procedure Code
41
Sec 131(4) Criminal Procedure Code
42
Art 50 Constitution of Kenya 2010
364 of the CPC ordered for the release of the applicant and that he pay the same of Ksh
150,000/=he stood for by 4th April 2019 at noon or produce the accused failure to which an
attachment of sale shall be issued without reference to the court.

PROCESS OF BAIL & BOND APPLICATION

SECURITIES

The Kenyan Courts recognize the following as securities:

1. Land Title Deeds

2. Salary pay slips
3. Car logbook
4. Shares Certificates.

They can be deposited in the Registry of the Courts during application of bail and bond terms set
by the Magistrates or Judges. This was evident in the case of Criminal Case 93 of 2014 -
Republic v Maureen Wanjiru Gakuro43

VERIFICATION PROCESS IN THE BAIL & BOND APPLICATION PROCESS

An application to be admitted to bail by an accused person is governed by Article 49 (1)

44
(f) of the Constitution and section 123, 123A, 124, 125 and 127 of the Criminal Procedure
Code (Cap 75 of the Laws of Kenya). Under the provisions of the code the accused person on
being indicted before a court of law for a cognizable offence has a right to be released on bail
save where the prosecution has demonstrated that compelling reasons exist not to release him on
bail. See the case of Job Kenyanya Masoni v Republic Cr. Application No. 399 of 2012 eKLR

43
Criminal Case 93 of 2014 : Republic v Maureen Wanjiru Gakuro
44
Article 49 CoK 2010.
45
the Judiciary in the year 2015 also developed bail and policy guidelines to augment the
Criminal Procedure Code and Practice and other relevant instruments to guide police and judicial
officers in application of the law on bail. In so doing the exercise of discretion to grant bail is to
be in conformity with the constitution and statutory provisions.

Bail in our criminal justice system is the security given for the release of an accused
person detained in custody pending trial or appeal furnished by signing a personal bond or a
surety signing a guarantee of ensuring his attendance before any court as required and specified.
As indicated under the code, section 124, 125 and 127 46the phrase sufficient surety or
cognizance runs through the provisions and the trial court is therefore mandated to consider.
What are the parameters does the court expect the judicial process to entail; the financial ability
of the surety or the accused to deposit the bond and meet the terms of bail. The character, age
and health of the accused or surety probability of the accused attending court when and as
required whether the surety understands the note of a surety as a guarantee before court to
commit in court to avail the accused for all court attendances, whether the surety is a resident of
the local jurisdiction where the case is to be heard and determined, whether the security property
may it be a logbook or certificate of title to land is worth the amount of the terms of bond granted
by the court and the obligations of the surety in the overall administration of justice during the
pendency of the case.

It is in this state of examination that the judicial officer determines the suitability of
surety before exercising discretion in his favour to deposit the securities as provided for under
the law. 47The risk factors as clearly reiterated in the Bond and Bail Policy of the Judiciary 2015
48
answers to the question that the accused and surety seeking bond must be interrogated and
answers provided before a decision is reached to release an accused person to bail. Both the
accused and the surety must place before the trial court the necessary facts that would allow
proper exercise of discretion judiciously. The seriousness of the offence, the strength of the case,
interference of witnesses, failure of the accused to have absconded or charged with another case,
the need to protect the victim, the security and safety of the accused, the likelihood of
absconding from the jurisdiction of the court and other factors must be weighed by the court in
the interest of justice.

All these matters in terms of law and procedure of the courts has to be undertaken by
examining the accused and the surety upon oath. The need to examine the accused on oath
besides the surety is to ensure the dual covenant entered between the two with the court to avail
themselves in all court attendance as scheduled. This inquiry requires more focus by the courts

45
Job Kenyanya Masoni v Republic Cr. Application No. 399 of 2012 eKLR
46
Criminal Procedure Code of Kenya – Cap 75
47
Essentials of criminal procedure in Kenya by Patrick Kiage
48
http://kenyalaw.org/kl/fileadmin/pdfdownloads/Bail_and_Bond_Policy_Guidelines.pdf <last accessed 25th Oct
2020>
because the prospect whether the accused person poses a flight risk starts in the quality
processing of bail applications/approvals.49

Examining the suitability of a surety is a judicial process and must be put on record. In R
v James Kiarie Mutungei (High Court at Kajiado Criminal Revision 1 of 2017), the court
held that the trial court must examine the surety and that examination must appear on record. The
courtnotedthattherecordfromthetrialcourtprovidednoindicationthat an examination had taken
place. The court also held that the prosecution ought to have been involved in the verification of
information provided by the accused and the surety.

This verification process was evidenced in the case of Republic v James Kiarie
Mutungei [2017] eKLR 50(Criminal Revision 1 of 2017) where the High Court quashed an order
that granted the accused bail. The accused person’s right to bail was determined to have been
reached at through improper means hence being an illegality. The accused is to be arrested and
remanded in custody. The proceedings on bail were ordered to commence denovo51.

49
Judiciary Criminal Procedure Bench Book
50
Republic v James Kiarie Mutungei [2017] eKLR (Criminal Revision 1 of 2017)
51
A Latin word meaning afresh; anew; from the beginning.