A. INTRODUCTION
Bail is an agreement between an accused person (and his sureties as the case may be) and the court that the accused person pays a certain sum of money fixed by the court which money is forfeited by the accused person, or his sureties, should he fail to attend his trial. The Law relating to bail is founded on the Constitution of Kenya and the Criminal Procedure Code.[1] This is in respect to the constitutional right to individual liberty as set out in section 72 of the Constitution.
It is noteworthy that no right has been known to be absolute and the right to personal liberty has been qualified under section 72(1) of the Constitution of Kenya.[2] For instance, a person may be arrested and his liberty curtailed by a police officer if he has reasonable suspicion that the person has committed or is about to commit a criminal offence under the law of Kenya.[3]
In particular, section 72 (5), which refers to bail, states that:
“If a person arrested or detained….is not tried within a reasonable time, then, without prejudice to any further proceedings…, he shall, unless he is charged with an offence punishable by death, be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings…”.’
The question of bail involves a delicate balance between two competing values: the protection of the welfare of the society vis-a-vis fairness to the accused. The object of bail is to shield the individual from pre-trial incarceration, the consequences of which are that the individual’s liberty may be greatly compromised as he may be restrained in custody while the sufficient evidence is being sought against him.
B. AMENDMENTS REGARDING BAIL
Before the Constitution of Kenya (Amendment) Act of 1978 the Constitution provided that any person could be admitted to bail whether conditionally or unconditionally so long as his subsequent attendance was assured. In 1978, The Statute Law (Miscellaneous Amendment) Act No. 20 of 1978) amended section 123(3) of the Criminal Procedure Code to state that the High Court may in any case save where a person is accused of murder or treason, direct that a person may be admitted to bail.
The sub-section as amended created a contradiction. Whereas under section 123(1)[4] four offences- murder, treason, robbery with violence and attempted robbery with violence were non-bailable, under section 123(3)[5] only two offences- murder and treason were non-bailable. It was therefore quite possible for an accused charged with robbery with violence or attempted robbery with violence to be denied bail under sub-section (1) but get it under sub-section (3) because sub-section (3) allowed bail in any case save for murder and treason.
The lacuna, created in the 1978 amendment was filled in 1984 and sub-section (3) was amended to make it tally with sub-section (1). By Act No. 19 of 1984, robbery with violence and attempted robbery with violence were made non-bailable. The effect of this quick development was to make the four offences non-bailable under both sub-sections.
In 1985 a Constitutional Court in the case of Margaret Magiri Ngui -V –R[6] declared section 123 of the Criminal procedure inconsistent with the Constitution and therefore null and void by virtue of section 3 of the Constitution. In the case an application was made to the High Court under section 84(1) of the Constitution challenging the constitutionality of section 123 of the Criminal Procedure Code. It was argued on behalf of the applicant that in denying bail to persons accused/ charged with capital offences, the section was inconsistent with section 72(5) of the Constitution which allowed bail to persons charged with all offences. It was further contended by the applicant that the classification of offences into bailable and non-bailable offences was a feature alien to the constitution.
The constitutional court agreed with this argument and held section 123 to be inconsistent with the Constitution and declared it to be null and void. The court then proceeded on merit having first found it had power to grant or refuse bail. It held that bail, as a general rule, should not be granted where the offence charged carries a mandatory death penalty because the temptation to abscond in such cases is very high. The High Court thus refused to release the applicant on bail.
By Constitution of Kenya (Amendment) Act No. 20 of 1987 section 72(5) of the constitution was amended by replacing the phrase to read: ”he shall, unless he is charged with an offence punishable by death, be released either conditionally or upon reasonable conditions.” In 2003, Act no. 5 added on to the list any other drug related offence as being non bailable. This remains the legal position till today.
C. BAILABLE AND NON BAILABLE OFFENCES
The law on bailable and non bailable offences is found in the Criminal Procedure Code[7] and the Constitution of Kenya. Section 123(1) of the Criminal Procedure Code[8] provides for non bailable offences. These are;
· murder,
· treason,
· robbery with violence,
· attempted robbery with violence and
· any other drug related offence.
There is an exception, however, where the accused person is a minor. Rule 9 of the Child Offenders Rules, 5th Schedule of the Children’s Act empowers the courts to grant bail to children charged with any offence. This was illustrated in Republic v. Mutungi,[9] where the High Court granted bail to a child offender charged with a murder. Considering the generality of rule 9 of the Child Offenders Rules, the constitutionality of the rule is still a matter of debate as section 72(5) of the Constitution does not allow granting of bail in capital offences.
Section 72 of the Constitution deals with and provides for the right to personal liberty. Subsection 5 however qualifies this right.[10] It provides that one cannot be released on bail if they have committed an offence punishable by death. The above mentioned offences are punishable by death. Essentially it does not contravene the Constitution for courts to deny bail.
This also implies that all other offences not mentioned are bailable. This does not however mean that bail is guaranteed in all other instances save the aforementioned felonies. As such, in every other case bail is granted on merit.
D. PRE-TRIAL BAIL
The case of pre-trial liberty is dealt with in section 72(5) of the Constitution which states that: Unless one is charged with a capital offence:-
“If a person arrested…is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally upon reasonable conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial”
A number of issues are considered by the court in granting pre-trial bail. The court in Mary Wambui Kinyanjui v. Republic[11] considered the nature of the charge, seriousness of the sentence, character or antecedents of the accused and whether the accused may commit further offences.
a) Fear of absconding
The trial of serious offences cannot normally proceed in the absence of the accused. Any remand arrangements which fail to secure his attendance will be unsatisfactory, as Lord Russell said in the case of R-V-Rose[12] “The requirements as to bail are merely to secure the attendance of the prisoner at the trial. Similarly, the court in Gachara v. Republic[13] stated that:
“Generally and because of the presumption of innocence, an accused person should be granted bail unless it is shown by the prosecution that there are substantial grounds for believing, inter alia, that the accused will fail to turn up at his trial or to surrender to custody.”
b. Fear of further offences
It does not matter how many sureties are tendered, they will still not be adequate to meet the case if the true ground of objection is that the defendant will commit an offence or offences while on bail. While referring to a defendant who had committed nine offences while on bail, Atkinson J in the case of R-V- Philips[14] noted “……….to let such a man loose on society until he has received for an offence which is not is in view of this court very inadvisable”
c. Interference with further witnesses
The possibility of the defendant interfering with witnesses will usually be relevant only where the alleged offence is comparatively serious and there is some other indication such as past record of violence of the defendant.[15] Where there is a substantial ground for fearing such interferences this seems to be a very strong reason for refusing bail. It is prudent to note that such allegation should be supported by facts showing reasonable cause for the belief to avoid speculation by the courts. In Panju v. Republic, [16] the court averred that the allegation of interference with witnesses should be supported by facts.
d. Nature and seriousness of the offence
Courts have given great consideration to the gravity of the offence in determining whether or not to grant bail. The court in the case of R-V-Barronett and Allain,[17] stated that the more serious the offence, the stronger the temptation to abscond.
e. Seriousness of the offence
The probable sentence that the accused person receives upon conviction is a cardinal consideration in granting pre-trial bail. The court, in Muiruri v. Republic[18] stated that:
“In principle, because of the presumption that a person charged with a criminal offence is innocent until his guilt is proved, an accused person who has not been tried should be granted bail. But there are well defined grounds on which it is proper to oppose or refuse bail…The third ground is the seriousness of the offence charged.”
The rationale in declining to grant bail in serious offences is that there are more probabilities and incentives to abscond, whereas in minor charges, such incentives may be lacking.[19]
E. ANTICIPATORY BAIL
Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested. A person can apply for anticipatory bail if he apprehends that there is a move to get him arrested on false or trumped up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him.
The question of anticipatory bail in Kenya was dealt with in the case of W’Njunguna vs. Republic.[20] In this case the question was whether anticipatory bail was provided for in the Constitution under Chapter V thereof. In this case, the applicant sought a declaration that anticipatory bail is constitutionally provided for and that the same is lawfully available to persons under the provisions of Chapter V of the Constitution of Kenya. The court stated:
“From section 60(1) and 84 of the Constitution, the High Court has powers to make such orders that shall enforce and secure the fundamental rights of an individual as provided for in sections 70 to 83 of the Constitution…while the right to anticipatory bail or bail pending arrest is not specifically provided for by statute, the same right is envisaged by section 84(2) of the Constitution…the right to anticipatory bail has to be called out when there are circumstances of serious breaches of a citizen’s right by an organ of the state which is suppose to protect the same…if the High court were to wait for Parliament to legislate on the right to anticipatory bail, then the High Court would be shirking its responsibility as mandated by section 84(1) of the Constitution to enforce the protection of fundamental rights and freedoms as provided for by the Bill of Rights (Chapter 5 of the Constitution)…”
Further, in Devans Chilelo Mwangade Vs Attorney General,[21] the applicant sought to be granted bail on the basis of section 123(3) of the Criminal Procedure Code, as he feared arrest by the Kenya police for alleged sexual advances to two female pupils at Likoni Primary School. He claimed that the pupils had booked a malicious report at Likoni Police Station and an arrest warrant in his regard had been issued. J.K Sergon, in dismissing the bail application, lamented that no section to his knowledge of the Criminal Procedure Code provided for anticipatory bail.
To add to that, in Zakayo Kimutai Kimeto Vs Republic[22] the applicant had relied on sections 72(1) and 84 (which provides for the enforcement of the protective provisions of the constitution) of the constitution and section 123 of the CPC to seek anticipatory bail. Jeanne Gacheche, in dismissing the application for lack of merit, stated that anticipatory bail is not catered for in the Criminal Procedure Code.
These above cases serve to confirm that whereas the grant of anticipatory bail has not been legislated upon by the Kenyan Parliament, the jurisdiction of the High Court can be invoked under section 84(2) of the Constitution to grant the anticipatory bail.
F. BAIL DURING TRIAL
A person in custody may be released on bail before trial, or during any proceedings by the police or court. This is envisaged in section 123(1) of the Criminal Procedure Code[23] which states the right of bail can be invoked at any stage of the proceedings.
The principles for granting bail during trial were considered in Opondo v. The Republic[24] in the following words:
“…Once a trial has began, the further grant of bail is in the discretion of the trial magistrate. But an accused who has been on bail while on remand should not be refused bail during the trial, unless, in the opinion of the magistrate, there are positive reasons to justify this refusal, e.g. that a point has been reached where there is a real danger that the accused will abscond, either because the case against him is going badly for him, or for some other reason, or there is a real danger that he will interfere with the witnesses…”
Bail during trial shall be determined by the court at a fixed amount with due regard of circumstances and shall not be excessive[25]. This was reiterated in Michael Ng’ang’a Kanyi & another v Republic[26], the court held that bail amounts should be justifiable.
Before a person is released on bail, a bond for such sum as the court thinks sufficient shall be executed by that person conditioned that the person shall attend at the time and place mentioned in the bond and shall continue to attend until otherwise directed by the court[27]. As soon as the bond has been executed, the person for whose appearance it has been executed shall be released,[28] if however, through mistake, fraud or otherwise insufficient sureties have been accepted the court may issue a warrant of arrest directing that the person released on bail be brought before it[29].
The following situations demonstrate further bail during trial
i) In terms of section 327(1) of the Criminal Procedure Code, when a person has been convicted of an offence, the judge may reserve and refer for the decision of the court consisting of two or more judges of the High court any question which has arisen in the course of trial, pending the decision the person convicted shall be remanded to prison or be admitted to bail[30].
G. BAIL PENDING APPEAL
The Criminal Procedure Code under Section 356 permits bail pending appeal. Bail in this case is on such terms as may seem reasonable to the court. The appellant applies for grant through a Notice of Motion or Chamber Summons brought under Section 357 of the Criminal Procedure Code. Where an accused person is refused bail by a subordinate court, he may appeal against the decision of the subordinate court to the High Court.[31]
The principles that govern the grant of bail pending appeal differ from those governing bail before conviction. However, ultimately its grant will depend on the exercise of the court’s discretion on the particular facts of the case and in accordance with the laid down principles.[32] The court considers the following in determining whether or not to grant bail:
1) Whether leave to appeal has been granted.
2) Whether there is a strong likelihood of success of the appeal.
3) Where there is a risk that if bail is not granted the sentence will have been served by the time the appeal is heard.[33]
These conditions do not warrant the automatic grant of bail. In Shah V R,[34] the court held that steps should be taken to see that the hearing of the appeal is expedient rather than grant bail. The court emphasized that bail should only be granted in exceptional cases.[35] This position was recently endorsed in the High Court at Nyeri in the case of Sisto Kamaru V Republic.[36]The application for grant of bail pending appeal was opposed by the state counsel who stated that the practice in that court presently was to hear appeals expeditiously. The court found that there were no exceptional grounds to move the court to grant bail and the state counsel correctly stated that the appeals were being heard expeditiously. The application for grant of bail pending appeal was dismissed.
It is worth noting that the most fundamental ground for consideration is whether the appeal has an overwhelming chance of success and where this is shown then there is no justification for depriving the applicant his freedom. This issue was discussed in Raghbin Singh Lamba V R,[37]where the arguments for bail pending appeal were that the appeal could be more easily prepared if the applicant was on bail, previous good character of the applicant and the hardships to his dependants if he remained in prison. Spry J found that the court was not satisfied that there was an overwhelming probability that the appeal would succeed. The application was dismissed for want of satisfaction to the court that there was an overwhelming probability of success.
In contrast, Muli J in Motichand V R[38]denied force to the decision in the Lamba Case and granted bail on the ground that the appeal had a probable chance of success. He argued that the denial of bail would amount to the denial of fundamental rights and freedoms which the constitution guarantees.
The High Court in 2007 Maurice Okello Kaburu alias Samuel Obiero Ombewa V Republic[39] held that there was no radically significant element laid before the court which would dispose it towards the inference that the appeal as filed indeed carries overwhelming chances of success. The court perceived it as an appeal set to be fairly contested, and an appeal the outcome of which could go either way. The application was dismissed.
The court may consider other factors as well in determining whether to grant the bail pending appeal. The applicant in Mary Wambui Kinyanjui V Republic[40] was denied bond in the Chief Magistrate’s court on the ground that she had absconded in earlier case. The reason given for absconding was an alleged statement associated to the prosecutor of the court. The prosecutor’s name was not given and neither had he sworn an affidavit to confirm the information. The information wasn’t admissible. The court found that even if the alleged information from the prosecution were accepted as a statement of fact, it would not suffice to justifying a finding that it was a reasonable and plausible excuse for failing to attend court. The trial court refused to grant the applicant bond on the basis that she had absconded in the previous case and she had committed a second offence. It was held that the trial judge was justified to disallow bond. The application was dismissed.
The Court of Appeal has no jurisdiction under the Criminal Procedure Code or the Rules of the Court of Appeal to entertain an appeal against a refusal to the High Court to grant bail pending appeal. This was held in Michael Otieno Ademba V R[41]where the appellant pleaded guilty to a charge of impersonating a person employed in the public service contrary to section 105 (b) of the Penal Code and was sentenced to twelve months imprisonment. He appealed against the sentence to the High Court which declined to grant bail pending appeal. He then appealed to the Court of Appeal against the High Court’s refusal to grant bail. The appeal was dismissed.
H. BAIL BOND PROCESSES
A bail bond is a written promise given by an accused person to court or to police, with or without surety, to guarantee that the accused person will duly appear in court.[42] Theoretically, the effect of the release on bail bond with the surety is to transfer custody of the accused person from the officers of the law to the custody of the surety, whose undertaking is to deliver the accused to legal custody at the time and place stated in the bond. There are a number of bail bond processes in Kenya.
a) Bail bond by Police: Pursuant to section 36 of the Criminal Procedure Code, a police officer in charge of a police station has the power to release a suspect of minor offence(s) on bond in instances where it is impractical to arraign the suspect in court within 24 hours. The bond can be issued by the police with or without sureties. Further, the amount of the bond should be reasonable. The effect of this type of bond is to secure the attendance of the accused person before a subordinate court. The cardinal principle guiding the police in charge of a police station on whether or not to release a suspect on bond is the seriousness of the offence. This was emphasised in Ndede v. Republic,[43] where the court argued that if the offence appears to the officer in charge of a police station to be of a serious nature, the person is to be retained in custody but where a person is retained in custody, he shall be brought before a subordinate court as soon as practicable. The above section is emphasised by section 23 of the Police Act which requires a police officer investigating an alleged offence to require the accused person to execute a bond in such sum or form as to secure the accused person’s attendance to court.[44] As it has been argued by one scholar, the purpose of granting such bail bond is to ensure that the accused person(s) do not serve pre-trial custody/sentences.[45] Where after due inquiry, the police officer in charge of a police station is of the opinion that there is no sufficient evidence to sustain a charge, the police officer will release the suspect unconditionally.[46] As a safeguard against arbitrary exercise of discretion by the police, section 37 of the Criminal Procedure Code obliges a police officer in charge of a police station to report to the nearest magistrate, cases of all persons the police officer has arrested without a warrant, whether or not the suspects have been admitted to bail.
b) Bail bond for prevention of offences: section 43 of the Criminal Procedure Code empowers a magistrate to order a person to execute a bond to keep peace. This occurs in instances where upon the examination of an informant on oath, the magistrate is of the opinion that the person against whom the information is made is likely to commit or do any act likely to breach public peace or disturb public tranquillity.[47] In its obiter dicta, the court in Abdalla v. Republic,[48] that the person against whom the information is made is strictly not accused of any offence, so he is better referred to as ‘suspect’ or ‘subject’ rather than ‘accused’. The maximum period within which the suspect may be ordered to keep peace is one year, and the bond to keep peace may be executed with or without sureties.[49] Proceedings against the suspect to keep peace can commence before a magistrate only if the suspect has already been apprehended, or is within the local limits of the magistrate’s jurisdiction.[50]
c) Bail bond for good behaviour: Bond for good behaviour covers a number of suspects. First, under section 44 of the Criminal Procedure Code, a magistrate is empowered to order a person who disseminates or abets dissemination of libellous matter, a matter dangerous to peace and good order and libellous matter against a judge to execute a bond for good behaviour. Secondly, under section 45 of the Criminal Procedure Code, a magistrate to order a person who is deliberately concealing his presence within the jurisdiction of the court intentionally to commit an offence to execute a bond for a bond for good behaviour. Thirdly, under section 46 of the Code, a magistrate is empowered to order habitual robbers, housebreakers, thieves, recipient of stolen property, and members of unlawful societies, among others, to execute a bond for good behaviour for three years or to give a restriction order in a district where the suspect’s home situate for three years.[51]
Upon examination of an informant on oath, when a magistrate deems it necessary that there is need for a suspect to show cause why he/she (the suspect) should not be ordered to execute a bond, either to keep peace or to be of good behaviour, the magistrate must make an order in writing setting out the substance of the information received, the amount of bond to be executed, the period for which it will be in force and the number, class and character of sureties if any that are given and, for habitual offenders, the district in which the suspect is to be restricted for a three year period.[52] Once the magistrate has read out the order in court, he (the magistrate) shall proceed to make an inquiry into the informant’s information, and where there is need for further evidence, he shall take such further evidence.[53]
The inquiry takes the form of conducting trials and recording evidence before subordinate courts as specified by the Criminal Procedure Code.[54] In Abdalla v. Republic,[55] the appellant had been ordered by the magistrate court to sign a bond to keep peace for a period of one year in accordance with section 43(1) of the Criminal procedure Code. The appellant appealed against the order on the ground that the magistrate did not comply with section 47(a) of the Act which requires that the magistrate’s order requiring a suspect to show cause why he should not execute a bond specifying the substance of the information received. Also, the appellant argued that the magistrate did not inquire into the veracity of the information received from the informant as required by section 52 of the Act. The Court of Appeal held that in proceedings for binding a person to keep peace under section 43(1) of the Criminal procedure Code, it is mandatory that the magistrate should examine the informant on oath. The Court further held that an inquiry into the truth of information under section 52(1) of the Criminal Procedure Code can only occur once the magistrate has issued an order under section 47(a) of the Act. Because the magistrate failed to make the order under section 47(a) of the Act, he occasioned injustice to the appellant, and therefore the appeal was allowed.
Similarly, in Mwagona & 3 Others v. Republic,[56] the four appellants in the case appeared in court to show cause why they should not be bound to keep peace. Each of them stated that he was ready to sign a bond to keep peace. The magistrate thereupon ordered each appellant to keep peace and not to cause any disturbance for a period of one year. Each appellant executed a bond of Ksh. 10,000. The appellants argued the order to keep peace and to execute a bond was a nullity as the magistrate had not complied with the proper procedure. On appeal, the High Court held that before making an order to execute a bond, a magistrate must hold an inquiry as provided for under section 52(2) of the Criminal Procedure Code as nearly as the manner in which trials in criminal cases are conducted.
The nature of an inquiry into the truth of the information upon which the action has been taken does not envisage the recording of plea as there is no charge. As there is no charge, a person is not required to execute a bond merely because he accepts to sign it before the magistrate has held a full inquiry and satisfied himself that the information upon which the action is taken is true; the suspect should be given a chance to defend himself. The appeal was therefore allowed, the order of the magistrate to keep peace and not to cause disturbance quashed and the appellants discharged from the bond.
Generally, if, upon inquiry, the magistrate deems it necessary that the suspect should execute bond for keeping peace, for good behaviour or should be restricted, he shall so order.[57] However, where the suspect is a minor, the bond is executed only by his sureties.[58] In instances where it is not proved upon inquiry that the suspect should execute bond for keeping peace, for good behaviour or should be restricted, the magistrate shall release him.[59]
I. SURETIES
A surety is a person who guarantees that an accused who was granted bail will appear for trial on his next scheduled court appearance. A surety may be required to deposit cash with the court which may be forfeited if the person in whose favour the guarantee is given does not appear as guaranteed. A surety is defined as a pledge by some other person guaranteeing that the accused person shall appear for his trial and if he does not then the surety shall pay to the court a certain sum which has been fixed by the court[60]. A surety is simply a person who pledges to become answerable for the debt of default of another[61].
The undertaking by a surety to secure the presence of the accused person in court is absolute and the liability to forfeiture on default is unqualified[62]. When sureties enter into recognizance with an accused person they take on serious obligations and must forfeit, should the person abscond.
It is a matter of public knowledge that it is by no means difficult for accused persons on bail to abscond. That is a factor calling for special diligence on the part of sureties. Thus these instances compel the court to take the matter of bail and bond seriously and to forcefully convey to the potential sureties that they take on an onerous obligation when they enter into recognizances for anyone facing a trial for a criminal offence[63].
The qualifications that need to be met by one in order to stand as surety were discussed in the case of R vs Gabhai Jessa[64]. A person standing as surety must be a person of social standing in the community. He must also be aged eighteen[65] or above and must be capable of meeting his financial obligations as a surety[66].
Discharge of sureties
Discharge of sureties in Kenya is covered by section 128 and 129 of the Kenyan Criminal Procedure Code Cap 75 laws of Kenya. It may be commenced in 3 ways;
a) Application by surety for discharge
Any surety for the appearance and attendance of an accused person released on bail may at any time apply to the court that the bond in respect of himself be discharged as per section 128[67], Cap 75 of the Laws. On receipt of such application, the court will cause the accused person to be brought before it and will then direct that the bond in respect of such surety be discharged. The court will then call upon the accused person to find another surety. If he fails to do so the court may commit him to prison.
The Act does not require that the surety applying for such discharge to state reasons for his application; nor, it would seem, is the court required to make such inquiry from him. Perhaps it’s because a surety is a free agent when he offers to stand surety for the accused person[68].
b) Death of a surety
This is provided for under section 129[69] of Cap 75 of the Laws. In the event where the death of a surety occurs, the court may require the accused person to find a new surety unless the circumstances of the case are such as to show that the reduction of the bond by the death of the surety will not jeopardize the interest of justice[70].
c) Finalization of case against accused
A surety is discharged by the finalization of the case against the accused in respect of which the bond was executed. Once the case has been finalized, the bonds are automatically discharged. If a sum of money was deposited as cash bail, that sum is refundable.
Relevant case law on matters relating to sureties
There are instances where depending on the circumstances of the case, the surety put up by an accused person may be refunded. One of these instances is where the accused person is found to have been charged unfairly. Such instance in the eyes of the court is a breach of the fundamental rights of the accused among other rules of law. The relevant case law portraying this particular situation is the case of Isaiah Ngotho vs. Republic[71]
There are instances where the court may order the forfeiture of the surety put up in favour of an accused person. However, in ordering such forfeiture the court must adhere to the laid down procedures as per the provisions of section 131 of the Criminal Procedure Code. If any such orders are found to have appropriated the miscarriage of justice, then such orders may be set aside. The relevant case here is that of John Taracha Sindikhi vs. Republic.[72]
When an accused person is to be released on bond, the court has the discretion to impose the terms of the bond as it deems fit and is commensurate with the offence in question. It thus takes into account many factors and imposes these terms. However, the court in its capacity to impose such terms may not do so unfairly and unreasonably. Any such terms found to be unreasonable will cause the terms in question to be reviewed and this is effected vide an application by the afflicted parties. This can be evidenced by the following case. Thomas Kada Dalu and another v Republic.[73]
Where an accused person is released on bond and a surety or sureties of a similar amount, it is the courts understanding that the sureties will forfeit their money/property if the accused person jumps bail and absconds. The onus of proving that there should be remission of such property or money in whole or part lies in the hands of the sureties. The position here is that even after the court considers the circumstances surrounding such an event, there is no assurance of the orders of remission being granted given the fact that the court expects the sureties to fully understand the purpose of their being sureties for an accused person. The following case sheds more light in such an instance where the accused jumps bail and the sureties seek orders of part or whole remission of their surety amounts; Mulwa vs. Republic[74]
Sureties in whichever the case may have their surety bonds accepted by a court of law without their being subjected to rigours of justifying their means where it is clear to the court that they are persons of responsibility and respect.[75] Despite this being a probate cause, it is evident that matters of sureties do not only apply to criminal causes as is common and in principle, they do traverse a wide jurisprudential ground.
- RECOGNIZANCE
In criminal law, ‘recognizance’ means an obligation of record that is entered into before a court or magistrate, containing a condition to perform a particular act, such as making a court appearance. It is an obligation of record that is entered into before a court or magistrate, containing a condition to perform a particular act, failing which attracts a penalty e.g. forfeiture of money. [76] It is a personal obligation or undertaking whereby the arrested person pays a sum of money and pledges to assure the performance of an act. This includes the
· making a court appearance.
· the payment of costs in civil litigation (i.e., amounts of money losing parties must pay to winning parties for the expenses of litigation).
The party (the recognizor) acknowledges/recognizes that he owes a personal debt to the government and binds himself to pay the sum of money, whereby if he fails to perform the agreed stipulated act (if he fails to appear at the court during hearing ) the money may be collected in an appropriate legal proceedings.[77]
Under section 131, recognizance may be forfeited and penalty paid. The court may recover the penalty by issuing a warrant for the attachment and sale of the movable property belonging to that person, or his estate if he is dead.
- FORFEITURE AND NON-COMPLIANCE WITH BAIL TERMS
A person, who is in custody because he or she has been charged with an offence or is involved in pending criminal proceedings, may apply for the bail. A bail is a sum of money deposited to secure an accused person’s temporary release from custody and to guarantee that person’s appearance in court at a later date. Bail may be defined as an agreement between the accused (and his sureties as the case may be) and the court and that the accused will pay a certain sum of money fixed by the court should he fail to attend his trial.[78] In which the money is given back to him regardless of the conviction.
To comply with any conditions set out in the agreement as to conduct while on bail, a person who is admitted to bail and fails to appear and surrender himself according to the conditions of his bond, the judge shall declare the bond forfeited issue a warrant of a arrest and order for his immediate arrest.
But before court orders forfeiture of an accused’s bond there has to be sufficient proof by way of evidence on oath to warrant such forfeiture. This is illustrated in the case of, Charles Ogutu V Republic[79] where the accused was charged with obtaining money by false pretence and was released on bail he failed to attend trial because he was sick. Consequently he sent a person to inform the Magistrate about his sickness. The Magistrate disbelieved it cancelled the bail and issued a warrant of arrest. On Appeal the order of cancelling the bail was quashed and the bail restored with the court ruling that the accused had no intention of absconding. A mere statement by the prosecutor that the accused was absent is not enough.[80]
In Nsumbuga V Uganda,[81] the accused deposited cash money in court as security for his attendance in court and was released on bail. On the date of trial the Magistrate recorded that the accused was absent and issued a warrant of arrest at the request of the Prosecutor. The accused stated before the court that he had been present but his name was not called out. The prosecutor stated that he had been absent but no evidence was called to prove this. The Magistrate ordered the cash bail forfeited against which the accused appealed. On appeal the forfeiture order was quashed as the procedure adopted was wrong and the Court ruled that the evidence on oath had to be led before making an order of forfeiture as opposed to acting on the statement of the prosecutor.
Evidence on oath enables the accused to cross examine the prosecutor and the witnesses. The accused person cannot do this in the case of statement by the prosecutor. If an accused person is on bond his bail should not be cancelled unless there is danger that he will abscond or there is danger that he may interfere with the witnesses. [82]
Non-compliance and forfeiture go hand in hand because, when you don’t comply with whatever you have agreed before the court, a penalty will follow. For instance, when a person fails to appear in court on the date set or fails to comply with one of the conditions e.g. if the accused is not to travel outside the country, and he does so, this will result to non-compliance to bail terms.
[1] Criminal Procedure Code (Cap 75) Laws of Kenya
[2] Constitution of Kenya, s. 72(1) states:
“No person shall be derived of his personal liberty save as may be authorised by law….”
[3] Supra note 3, s. 72(1) (e).
[4] Supra note 2, s. 123(1).
[5] Ibid, s. 123(1).
[6] Criminal Appeal No. 59 of 1985, High Court of Kenya at Nairobi (unreported).
[7] Cap 75 Laws of Kenya
[8] Sec 123(1) “When a person, other than a person accused of murder, treason, robbery with violence attempted robbery with violence or any drug related offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail…”
[9] (2004) eKLR.
[10] Sec 72(5) If a person arrested or detained …is not tried within a reasonable time, then without prejudice to any further proceedings that may be brought against him, he shall, unless he is charged with an offence punishable by death, be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.
[11] (2006) eKLR. In this case, the accused had absconded bail in a previous criminal when offence and committed a criminal offence. The court declined to grant her bail.
[12] (1885-99) ALL ER at 851
[13] (2004) 1KLR, p. 373.
[14] (1974) A.C 111,334
[15] See Bwonwong’a M. (). Criminal Procedure in Kenya, p. 114.
[16] (1973) EA 282 (HCT). In this case, the prosecution objected to releasing applicant on bail arguing that he was likely to interfere with witnesses and escape since he lived near the Kenyan boarder.
[17] (1852) 17 Y.P 245
[18] (2004) eKLR
[19] Momanyi Bwonwong’a (1994). Procedures in criminal law in Kenya. Nairobi: East African Educational Publishers.
[20] (2004)1 KLR 520.
[21] [2006] eKLR
[22] [2006] High Court at Eldoret Misc Crim Appli 12 of 2006.
[23] (Cap 75) Laws of Kenya.
[24] (1976-80) 1KLR731.
[25] Criminal Porcedure, s. 123(2).
[26] (2007) eKLR
[27] Criminal Procedure Code,Section 124.
[28] Ibid, s. 125.
[29] Ibid, s. 127.
[30] Ibid, Section 327(2).
[31] Ibid, s. 357(1)
[32] Mundia V Republic (1986) KLR p 623
[33] P. L. O. Lumumba (2005), A Handbook On Criminal Procedure In Kenya, Nairobi-Law Africa Publishing (K) Ltd, p. 32
[34] 13 August 1976 CA UR
[35] Spry J in the Lamba Case noted that neither the complexity of the case nor the good character of the applicant nor the alleged hardship to his dependants would constitute exceptional or unusual reasons.
[36] Criminal Appeal 294 0f 2008.
[37] (1958) EA 337
[38] (1972) EA 399
[39] Miscellaneous Criminal Application 300 of 2007
[40] Miscellaneous Criminal Application 353 of 2006
[41] Court of Appeal Reports (1983) Vol 1, at 187, (1983) 1 CAR 187
[42] Garner B. (8th Edn: 2004). Black’s Law Dictionary, p. 187. USA: Thomson West Publishers
[43] Ndede v. Republic (1991) KLR 567. In this case, the accused person was charged of being a member of an unlawful society contrary to section 6(a) of the Societies Act and taking an unlawful oath contrary to section 61(b) of the Penal Code. The suspect was not released on bond owing to the seriousness of the offence.
[44] Police Act (Cap 84), s. 23 states:
“(1) A Police Officer investigating an alleged offence (not being an offence against discipline) may require any person to execute a bond in such sum and in such form as may be required, conditioned on his due attendance at court if and when required so to attend. (2) Any person who refuses or fails to comply with a requirement lawfully made under subsection (1) shall be guilty of an offence.”
[45] See Lumumba P.L.O. (1998). A Handbook on Criminal Procedure in Kenya, p.102. Nairobi: Business Trends Limited.
[46] Criminal Procedure Code (Cap 75), s. 36 (Proviso).
[47] Supra note…s. 43(1).
[48] Abdalla v. Republic (1984) KLR 667
[49] Supra note…, s. 43(1).
[50] Ibid, s. 43(2).
[51] Ibid, s. 46.
[52] Ibid, s. 47.
[53] Ibid, s. 52(1).
[54] Ibid, s. 52(2).
[55] Abdalla v. Republic (1984) KLR 667
[56] Mwagona & 3 Others v. Republic (1990) KLR 514.
[57] Criminal Procedure Code, s. 53(1).
[58] Ibid, s. 53(1) (iii).
[59] Ibid, s. 54.
[60] P L O Lumumba, PhD, A Handbook on Criminal Procedure (Nairobi; publishers, 1997) p.35
[61] P. Ramanatha Aiyar, The Law Lexicon (New Delhi; Wadhwa&co. Law Publishers, 2nd Ed, Vol II, 1997) p. 1841
[62] Simpson CJ , in Mulwa V Republic, Criminal Appeals Nos 1264 of 1982 & 19 of 1983 (consolidated)329
[63] Ibid note 3, p.333
[64] High Court Bulletin No. 54 /1963 at P.31.
[65] See the Age of Majority Act Cap 33 of the Laws of Kenya.
[66] Ibid note 1, p.36
[67] 128. (1) All or any of the sureties for the appearance and attendance of a person released on bail may at any time apply to a magistrate to discharge the bond either wholly or so far as it relates to the applicant or applicants.
(2) On an application being made under subsection (1) the magistrate shall issue his warrant
the person so released be brought before him.
the person so released be brought before him.
(3) On the appearance of the person pursuant to the warrant issued under subsection (2) or on his voluntary surrender, the magistrate shall direct the bond to be discharged either wholly or so far as it relates to the applicant or applicants, and shall call upon the person to find other sufficient sureties, and if he fails to do so may commit him to prison.
[68] B D Chipeta, J, A Magistrate’s Manual ( Tabora; T.M.P Book Department) p.59
[69] 129. Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond, but the party who gave the bond may be required to find a new surety.
[70] Ibid note 9
[71] Miscellaneous criminal application no. 81 of 2002.
[72] Revision case 727 of 2003.
[73] Criminal application 322 and 377 of 2000.
[74] See also Reg vs. Southampton Justices exparte Green (1975) 3 WLR 277; (1975) 2 All ER 1073 and Regina vs. Horsferry road stipendiary magistrate exparte Pearson (1977) 1 WLR 1197; (1979) 2 All ER 264.
[75] Probate and Administration Act of 1881, section 78. this particular proviso was referred to in the case of Re Kibiego, Probate cause No. 15 of 1972.
[76] www.lawyers.com Retrieved June 08, 2009
[77] Encyclopædia Britannica Inc. (2009). Retrieved June 08, 2009 http://www.britannica.com
[78] Douglas Brown, Criminal procedures in Uganda and Kenya, 1970, (Sweet and Maxwell, London) (2nd Ed).
[79] Miscelleneous Criminal Application No.64 of (1989)
[80]Momanyi Bwonwong’a (1994). Procedures in criminal law in Kenya. Nairobi: East African Educational Publishers, p 119.
[81] (1968) East African Law Report
[82] Supra note 2 paragraph 3
