Right to bail under the Kenyan laws

  

Date Posted: 10/8/2011 4:35:28 AM

Posted By: luyali  Membership Level: Silver  Total Points: 120

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Bail defined
Bail may be defined as an agreement between the accused or his sureties and the court that the accused will pay a certain sum of money fixed by the court should he fail to attend his trial. It is some form of property or money pledged or deposited to a court to persuade it to release a suspect from jail on the understanding that the suspect will return for trial. It can also be defined as a written promise signed by a defendant or a surety to pay an amount fixed by the court should the defendant named in the document fail to appear in court for the designated criminal proceeding at the date and time specified.
A surety is a person who agrees to act on behalf of the other and for that matter the defendant. The surety may be an individual or an agent. He becomes liable to the court for the full amount. If the defendant fails to appear the court may issue a warrant of arrest and the amount of the bond forfeited to the court.

2.1.1 Historical development of bail
Bail has its roots in the legal system of Anglo-Saxon times. It arose out of medieval sheriffs’ desire to avoid costly and troublesome burden of personal responsibility for those in their charge. The sheriffs were heavily fined for the escape of the prisoner.
In 1275, a first enactment was undertaken in the Westminster statute with the aim of reducing abuse by the sheriffs of their wide powers to refuse bail. The enactment systematized and codified the ad hoc arrangements between the sheriffs and the accused with the hope of standardizing the practice of bail.
The right to bond or bail is founded upon the need to protect the personal liberty of

a person who has not yet been found guilty of any offence. Bail is a right. The rationale for granting bail is based on the principle of presumption of innocence, sometimes referred in Latin as Ei incumbit probatio qui dicit, non qui negat - one is considered innocent until proven guilty. Any person accused of committing a crime is presumed innocent until proven guilty in a court of law. Therefore a person charged with a crime should not be denied freedom unless there is a good reason. There is the need not to imprison people who may later be found not guilty. Invariably, human rights always find their best expression through Criminal Law, even at International Law.
Bail is a mechanism used to ensure the attendance to court by an arrested person. Presumption of innocence places upon the government the burden of proving each element of the offence beyond any reasonable doubt. The presumption that a person is innocent until proven guilty is a fundamental precept of the criminal law. The question of bail involves a delicate balance between two competing values: the welfare of the society sought to be protected and fairness to the accused.
The presumption of innocence is the fulcrum of all fundamental rights and it is captured in Article 50 (2) (a) of the 2010 Constitution which states,
‘Every accused person has the right to a fair trial, which includes the right to be presumed innocent until the contrary is proved.’
Equally, under Article 7 (1) (b) of the African Charter on Human and People’s Rights every person accused of a criminal offence is innocent until proved guilty or until he pleads so.



2.2 Stages for application of bail
The jurisdiction of litigating human rights issue is the preserve of the High Court. Articles 23(1) and 165(3) (b) of the Constitution clothe the High Court with jurisdiction to hear and determine applications for denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of rights.
The applicant must demonstrate how his rights under the Constitution have been violated. In making this observation, Gacheche J in Zakayo Kimutai Kimeto vs R, held that the issue that always confronts a judicial mind is whether by conducting criminal investigations, the police act unconstitutionally, and whether the court can curtail the powers of the police. Courts cannot entertain an application where the applicant has not demonstrated clearly how his rights have been violated. The Gicheru rules frown upon applications that are frivolous and vexatious.
The right to bail can be granted at various stages of trial, namely;
• Pre-trial bail,
• bail pending trial,
• bail pending appeal and
• bail pending appeal on a plea of guilty
2.2.1 Pre-trial bail
Article 49 (1) (h) provides for the release on bond or bail, ‘pending a charge or trial.’ This means it can be granted even before arraigning the person. Bail is non-penal in character. Neither the amount for bail nor the refusal of bail may be influenced by punitive notions.
Section 123 (1) of the Criminal Procedure Code also recognizes that a person may be released on bail or bond while still in police custody and before being charged in court. Further in sub-section 3, it empowers the High Court to grant bail or to reduce any bail granted by a subordinate court or a police officer. This can be done whether the accused has been committed to trial or not
Section 23 of the Police Act also empowers a police officer investigating an alleged crime, not being a disciplinary offence, to require any person to execute a bond in such sum and in such form as may be required, conditioned upon his due attendance in court if and when required to attend. In addition, section 24 while providing for bail bond prohibits the charging of a fee when giving such bail bond.
Pre-trial bail is significant in the judicial process and if a presumption is to exist in its favor, the question which then arises is, in what circumstances is it proper for bail to be refused?
Understanding the proviso, ‘on reasonable conditions’ and ‘compelling reasons,’ has been a challenging thing to the judges. With due respect to the learned judges who have had occasion to interpret the proviso, they appear to be on the high seas of confusion as to what exactly the rider means and what kind of reasons were envisaged by the framers of the constitution. There are two major decisions that have been rendered by courts in relation to the right to bail for murder in a capital offence where two Judges rendered very paradoxical rulings based on almost a similar set of facts and circumstances.
It seems then that the understanding of these two phrases depends on who will interpret and that there is no exact determining factor to this. Previously, however, several reasons have been suggested for refusing bail. These include:
• Fear of absconding: The purpose of bail is to ensure the attendance of the accused person at his trial whenever he is required to do so. Therefore, any remand or bail arrangement which fail to secure such attendance will be unsatisfactory. Lord Russell, in Rv Rose stated that ‘The requirements as to bail are merely to secure the attendance of the person at the trial.’
• Fear of committing further offences: Where the accused is likely to commit further offences, the society should be protected from him by denying him bail. In R v Philips
Justice Atkinson observed about a defendant who had committed nine offences while on bail that, ‘…to let such a man loose on society until he has received his punishment for an offence which is not in dispute is in view of this court very inadvisable.’
• Interferences with witnesses: This is another ground for refusing bail though it is hard for the court to evaluate. The British home office working partly on the issue of bail in its recommendations recommended that:
‘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 indications such as past record of violence.

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