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The Basics
What is bail? This is the release from
custody pending a criminal trial of an
accused on the promise that money will be
paid if he absconds.
Can you see any competing interests in the
granting of bail? On one hand there is the
public interest not to allow dangerous
people back into society but on the other
there are c0nstitutional rights of the
accused to be upheld.
There is a general presumption in favor
of granting bail, a presumption which
can be rebutted by evidence against an
accused which shows that he should
not be given bail.
The key object of bail is to ensure that
the accused person attends trial,
without being detained in prison or
Bailable & Non-bailable offenses
Until 1978 the High Court had unlimited
power to release accused persons on bail
pending trial in all cases irrespective of the
offenses with which they were charged.
However, in that year the law was
amended to make murder and treason non-
bailable offenses. A further amendment
added robbery with violence and
attempted robbery with violence to the list.
Look at section 123 of the CPC. This
contrasted with Article 72(5) of the
then Constitution which then made
every offense bailable.
What happened in Margaret Magiri
Ngui v. R? the court held that bail
should generally not be granted where
the offenses charged carry a
mandatory death penalty.
Soon after that Act no. 20 of 1978
amended the Constitution to deprive courts
of the power to release persons charged
with offenses carrying the death penalty on
What does article 49(1) of the current
constitution provide? It would appear prima
facie that the classification between
bailable and non-bailable offenses has been
However, the High Court has retained the
discretion to refuse grant of bail where the
circumstances so warrant as was the case
in Republic v. Taiko Kitende Muinya.
In Joseph Wambua Mathenge and 3
others v. R the court held that there is no
automatic right to bail except where the
offense is punishable only by a fine or
imprisonment for no more than 6 months.
Why do you think the court in Republic v.
Danson Mgunya and another granted
bail to the accused persons even though
they were charged with a capital offense?
The fact that a person is charged with a
bailable offense does not mean that they
are automatically entitled to be released
on bail. Granting of bail is subject to the
discretionary power of the court.
Bail may be granted to an accused
person conditionally or unconditionally.
Bail should be fixed with due regard to
the circumstances of the case and should
not be excessive as this would defeat the
purpose of the bail itself. Look at the
case of Patrick Irungu Maina v. R.
After the accused appears in Court his
bail money should be returned to him.
Classification of Bail
Bail may be classified as follows:
i. Bail pending trial
ii. Bail pending appeal
iii. Anticipatory bail
Bail Pending Trial
This may be granted by the police or
by a magistrate.
If it is by a police officer usually the
OCS will exercise this power where it is
impracticable to produce the alleged
person before court within reasonable
time. If a person arrested is not
released on bail he must be brought to
court without undue delay.
If a person is arrested on a warrant
the warrant will state whether he is to
be held in custody or released on bail.
The key reason why police would
refuse to grant bail is to ensure that
evidence relating to an offence for
which the accused is under arrest is
The court may grant bail post charge
and prior to convictions at all stages
of the proceedings and post-
conviction prior to sentencing.
The prosecution and the defense will
make submissions on the matter of
bail and the court will make a final
decision based on the facts.
Is it unconstitutional to grant bail to
one co-accused person while rejecting
the application for bail by the other co-
accused persons?
Note that the propensity to abscond is
determined by individual
circumstances and being charged with
the same offense as others does not
equalize those circumstances.
Bail Pending Appeal
This does not exist as of right
(because the presumption of
innocence does not apply) and is only
granted in exceptional circumstances.
In these cases the burden is shifted
from the prosecution to the accused,
and the presumption is that the
accused has been properly convicted.
Look at section 356 (1) of the CPC.
The main consideration for bail pending
appeal is that the applicant must show
overwhelming chances of the appeal
Other secondary considerations include the
medical condition of the accused, nature of
the offense, the sentence imposed and the
likely delay in hearing the appeal.
Once a person entitled to appeal enters
an appeal the High Court or the
subordinate court may order that he be
released on bail or that the execution of
the sentence be suspended pending
hearing of the appeal.
Look at section 357(1) of the CPC.
Additionally, look at section 356 (2) of
the CPC.
Anticipatory Bail
Bail pending arrest or anticipatory bail is
an order to admit a person to bail issued
before that person is arrested.
In essence, the applicant invites the court
to arrest him and release him on bail
thereby pre-empting action by the police.
In granting anticipatory bail the High
Court exercises its supervisory powers to
prevent the abuse of executive powers.
Conditions to be imposed before
anticipatory bail is granted.
These include:
i. The person shall be available for
interrogation as and when required
ii. The person shall not make any
threats or promises to potential
iii. The person shall not leave the
jurisdiction without prior permission.
Factors to be Considered before bail
pending trial is granted
These include the following:
i. Likelihood of appearance at trial
ii. Likelihood ofinterference with investigations
iii. Likelihood of
interference with witnesses
iv. The nature of the offense
v. Severity of the punishment upon conviction
vi. Circumstances out of which the charge arose
vii. Likelihood of commission of more offenses
viii.Safety or security of the accused
ix. whether the accused is serving a custodial
sentence for another offense
x. Breach of bail terms
xi. Relative strength of the prosecution case
xii. Deposit in lieu of recognizance as per
section 126 of the CPC.
Look at section 124 of the CPC.
Who is a surety?
What is a recognizance?
What happens when the accused person
fails to attend the trial?
Before a court finds that a proposed
surety is suitable it has to be satisfied
that the surety understands his obligation
to ensure that the accused attends court.
Discharge and death of
Look at sections 128 and 130 of the CPC.
A surety may apply to be discharged at any
time in which case the court shall issue a
warrant of arrest for the accused person.
What happens when a surety dies? Look at
section 129 of the CPC. The estate of the
surety is discharged from all liability
consequent to the bond and the accused
must find another surety.
Forfeiture of
Look at section 131 of the CPC. Where it
is proved that an accused person has
absconded, the court will issue a notice to
any person bound by the recognizance to
pay his penalty or to show cause why he
should not pay. The surety may have to
sell his property or serve a prison
sentence not exceeding six months if he
cannot pay the recognizance.
As per section 132 of the CPC, all
orders made by a magistrate regarding
the forfeiture of recognizance can be
appealed to the High Court.

*Look at the 2015 bail and bond

policy guidelines available on the
judiciary website.
Isaac Kiplagat Mutai v Republic
(Revision 8 of 2013)
Republic v Mohamed Sudi Said
(Criminal Case No. 24 Of 2014)
Hassan Mahati Omar & another v
Republic (High Court Criminal Revision
No. 31 Of 2014)
Republic v Joktan Mayende & 3
others (Criminal Case 55 of 2009)