The Right to Bail in Kenya: A Case Study of the Anti

The Right to Bail in Kenya: A Case Study of the Anti-Corruption and Economic

Crimes Division of the Courts in KenyaJ Victor Owiti*

Abstract

Arrests and charges against individuals suspected of corruption and theft of public funds in Kenya has become a common happening in the last about twelve months or so. These have been attributed to a number of things including a conducive political environment for the war against corruption and a like-never-before cordial relationship between the main agencies involved in the investigations and prosecution of corruption-related crimes. With the intensified war against such suspects of corruption, the number of arrests has increased by the day with increased allegations of alleged breaches of various fundamental rights including the right to liberty among others. There has also been a corresponding increase — understandably — in the number of applications for the redress of such alleged breached with an increase in applications for release on bond: anticipatory or pre-trial. This paper examines the place of such arrests and the related applica-tions for release of persons so arrested and the need by judicial officers to strike a balance between the two important yet opposing interests of the individual to his right to liberty on the one hand,, and on the other, the pub-lic interest, or rather the interest of the society to have the integrity of the subject investigations resultant trials protected to ensure that those that would be found guilty of stealing from the public coffers do not jeopardize the process to their undue advantage.

* LL.B (University of Nairobi); LL.M (Ongoing, University of Nairobi); Advocate of the High Court of Kenya, Prosecution Counsel, Office of the Director of Public Prosecutions (ODPP)

Kabarak Journal of Law and Ethics 4(2019) 113-134

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1. Introduction

The war against corruption and economic crimes in Kenya has in the recent past intensity and publicity in courts across the Country. This has seen the arrest and arraignment of a number of public officers and other persons working for and with government agencies and institutions before court. The invigorated war has seen the intended and actual prosecutions including against the country’s Deputy Chief Justice,1 and the cases relating to the National Youth Service (NYS)2, the Kenya Power and Lightning Company (KPLC),3 the Kenya Bureau of Standards (KEBS),4 the National Land Commission (NLC),5 the National Cereals and Produce Board (NCPB) and a number of county governments.6 Unfortunately, the country has witnessed an alarming rise in corruption and economic crimes, which has affected the fibre of the country’s economic structure.

The arrests now christened “Kamata Kamata Fridays” have not been without criticism from various quarters. The Law Society of Kenya (LSK) has challenged the arrests and criticized the Office of the Director of Public Prosecutions (ODPP) and the Director of Criminal Investigations (DCI) of deliberately preferring to conduct the arrests on Fridays. The mischief behind the so called Friday arrests is to ensure that the arrested persons spend at least a weekend in custody before a possible release on the next working day. The LSK has challenged the legality of

1 Republic vs Philomena Mbete Mwilu & Another Nairobi Chief Magistrate’s Court ACC Criminal Case No 38 of 2018.

2 Republic vs Lilian Mbogo Omollo & 36 Others Nairobi ACEC Case No 10, 13, 16 & 17 of 2018.

3 Republic vs Dr. Ken Tarus & 8 Others Nairobi Chief Magistrate’s Court ACC No 25 of 2018; Republic vs Dr. Ben Chumo & 14 Others Nairobi Chief Magistrate’s Court ACC No 26 of 2018; and Republic vs Catherine Wamwara Mwangi & 29 Others Nairobi Chief Magistrate’s Court ACC No 29 of 2018.

4 Republic vs Charles Ogega Ongwae & 8 Others Nairobi Chief Magistrate’s Court Criminal Case No 1151 of 2018; Republic vs Charles Ogega Ongwae & 16 Others Nairobi Chief Magistrate’s Court Criminal Case No. 1152 of 2018; Republic vs Cole Kiprono Bullut & 8 Others Nairobi Chief Magistrate’s Court Criminal Case No 1780 of 2018; Republic vs Cole Kiprono Bullut & 9 Others Nairobi Chief Magistrate’s Court Criminal Case No 1781 of 2018; Republic vs Cole Kiprono Bullut & 8 Others Nairobi Chief Magistrate’s Court Criminal Case No 1782 of 2018; Republic vs Cole Kiprono Bullut & 9 Others Nairobi Chief Magistrate’s Court Criminal Case No 1783 of 2018.

5 Republic vs Prof Mohammed Abdalla Swazuri & 16 Others Milimani Anti-Corruption Case No 33 of 2018.

6 For example various Corruption and Economic Crimes related charges against former and current Governors or other officers of the Bungoma, Nyahururu, Nairobi and Samburu Counties.

The Right to Bail in Kenya: A Case Study of the Anti-Corruption and Economic Crimes Division of...

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the Friday arrests in court vide two Constitutional petitions7 in which the society is seeking, among other orders, a declaration that the right to bail is a right of every citizen which should not be unreasonably denied by any person or institution, and that where bail is denied, the denial must be founded in law with written reasons being proffered to the subject suspect.

Despite the uproar against the arrests or arraignment of the said persons in court, almost all those arrested in relation to the said corruption matters have been released on bond or on cash bail or upon availing of security surety.

This paper gives an overview of the scope of the Right to Bail in Kenya with a bias to the experience and practice at the Anti-Corruption and Economic Crimes Division of the Magistrates’ and High Courts. While the paper does not attempt to suggest a distinguishing of the practice of the grant and or denial of bail in Anti-Corruption and Economic Crimes matters, most of the cases referred to are corruption-related.

2. Right to Bail

While there is no statutory definition of bail in Kenya, the word bail has been defined in the Black Law’s Dictions in the following terms: as a verb, the word bail means:

To obtain the release of (oneself or another) by providing security for a future appearance in court8 and as an agreement between the accused (and his sureties as the case may be) and the court and that the accused will pay certain sum of money fixed by the court should he fail to attend his trial.9

2.1 Constitution of Kenya, 2010

According to the Constitution of Kenya, every 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 so released.”10 Further, the Constitution prohibits the remanding in custody of arrested persons for offences

7 Law Society of Kenya vs. Director of Public Prosecutions & 4 Others Nairobi High Court Petition No. 8 of 2019 -; and Law Society of Kenya vs Director of Public Prosecutions & 4 Others Nairobi High Court Petition No. 9 of 2019.

8 Black’s Law Dictionary, (9th Edition), 161.9 P L O Lumumba, Criminal Procedure in Kenya, (Law Africa Publishing (K) Ltd, 2008) 23. 10 Constitution of Kenya, 2010 Art 49(1) (h) .

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punishable by a fine only or by imprisonment for not more than six months.11 This however does not necessarily mean that all persons accused of committing offences that are punishable by a fine only or by imprisonment for not more than six months are entitled to free bonds or release on personal recognizance. Appropriate bail or bond terms must be imposed when releasing such offenders as there is a real probability that many persons who are charged with offences that attract only fines or that attract imprisonment for six months or less, will not bother to turn up in court for their trials.12

2.2 Statutory Provisions on Bail

Apart from the foregoing Constitutional provision on bail, the Criminal Procedure Code (CPC),13 the National Police Service Act14 and the Bail and Bond Policy Guidelines15 are also relevant in the discussion of bail as far as Corruption and Economic Crimes are concerned. The statutes and guidelines are critical in helping to regulate the administration of the right to bail and pre-trial detention. Pre-trial detention refers to the confinement of accused persons in facilities such as police cells or prisons, pending the investigation, hearing, determination or appeal of their cases.16

2.3 The Criminal Procedure Code (CPC)

The Criminal Procedure Code enumerates the relevant circumstances that the Court should have regard to in making a decision on bail and bond. Such circumstances or factors may include17 the nature or seriousness of the offence,18 the character, antecedents, associations and community ties of the accused person,19 the defendant’s record in respect of the fulfilment of obligations under previous grants of bail,20 and the strength of the evidence of his having committed the offence.21

11 Ibid, Art 49(2). 12 Clause 3.1 (d) of the Bail and Bond Policy Guidelines.13 Chapter 75 of the Laws of Kenya.14 Act No 11A of 2011.15 Judiciary Bail and Bond Policy Guidelines March 2015.16 Clause 1.5 of the Guidelines.17 Sec 123A of the Criminal Procedure Code.18 Sec 123A (1) (a) CPC.19 Sec 123A (1) (b) CPC.20 Sec 123A (1) (c) CPC.21 Sec 123A (1) (d) CPC.


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The Criminal Procedure Code also reiterates the constitutional right to bail. A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;22 or where the Court considers that keeping him in custody would assure his own safety/protection.23

Even before the 2010 Constitution, the Criminal Procedure Code permitted, and still does, an officer in charge of a police station or a court to admit a person accused of an offence. The only exception provided under the Code is murder, treason, robbery with violence, attempted robbery with violence or any related offence where one is not entitled to bail or release.24 Alternatively, such a police officer or court may, instead of giving bail to the accused person, release him or her upon executing a bond without sureties.

2.4 The National Police Service Act

Relatedly, the National Police Service Act gives a police officer investigating an alleged offence, save for an offence against discipline, broad discretionary power to “require any person to execute a bond in such sum and in such form as may be required”25 on condition that the person shall duly attend court if and when required to do so. It is an offence to refuse or fail to comply with the bond requirements set by such a police officer.26 However, this power of the police must be “exercised in strict accordance with the Criminal Procedure Code.”27

2.5 Judiciary’s Bail and Bond Policy Guidelines28

The Judiciary’s Bail and Bond Policy Guidelines (2015) provide for the procedures to be to be used when considering the question of bail.29 The Guidelines

22 Sec 123A (2) (a) CPC23 Sec 123A (2) (b) CPC.24 Paragraph 1.2 of the Guidelines. 25 National Police Service Act, No 11A of 2011, s 53(1)26 Ibid sec 53(2).27 ibid sec 53(3).28 n (12) 16.29 Page 25 of the Guidelines. Available on http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/

Bail_and_Bond_Policy_Guidelines.pdf (accessed 9 September 2019).

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also recommend a number of considerations in the grant or refusal of bail. These considerations include the fact that the Prosecution satisfies the Court, on a balance of probabilities, of the existence of compelling reasons that justify the denial of bail so as to persuade the court to deny the accused person bail, whether or not the accused person is likely to fail to attend court proceedings, or that the accused person is likely to commit, or abet the commission of, a serious offence, or that the exception to the right to bail stipulated under Section 123 A of the Criminal Procedure Code is applicable in the circumstances, or that the accused person is likely to endanger the safety of victims, individuals or the public; or that the accused person is likely to interfere with witnesses or evidence; or that the accused person is likely to endanger national security; or that it is in the public interest to detain the accused person in custody.30

3. Purpose of Bail

It is trite law that the primary objective of release on bond is the attendance at Court by the accused person.31 Put differently, the primary object of arrest and detention of an accused person is to secure their appearance at the time of trial and to ensure that the accused person will be available to receive the sentence when found guilty. An accused person should be released where the Court is satisfied that he will turn up to answer charges.32 Where, therefore, the presence of an accused at trial could be reasonably ensured otherwise than by arrest and detention, it would not be proper or just to deprive the accused of their liberty during the trial.

In Kelly Kases Bunjika vs. Republic,33 E.M. Muriithi, J held inter alia that:

It is clear that the primary consideration for bail is whether the accused will attend his trial for the charges facing him, and it must, therefore, be a compelling reason if it is demonstrated that “the accused person is likely to fail to attend court proceedings”. The question in this matter becomes whether there is, on a balance of probabilities evidence that the accused is likely to abscond. The accused claims to have a good defence to the charge of escape from custody. The nature of such defence and evidence is not disclosed. The accused merely asserts his “constitutional right to be granted Bond/Bail on reasonable and favourable terms.

30 Paragraph 4.26 of the Guidelines.31 Justice GV Odunga sitting in the High Court at Machakos in Republic vs Robert Zippor Nzilu

[2018] eKLR.32 Okello Augustine vs Uganda Crim Misc App No. 006 of 2012. Patrick Kiage, Essentials of

Criminal Procedure in Kenya (Law Africa Publishing (K) Ltd 2012) 111.33 Kabarnet High Court Miscellaneous Criminal Application No 64 of 2017); [2017] eKLR.


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3.1 Integrity of Trial

Other than ensuring that an accused person attends trial when needed, bail also serves to ensure that the integrity of the trial is protected such that a trial court may refuse to grant an accused person bail where it is clear that the accused person shall jeopardise the fair administration of the justice of the case.

In Republic vs. Fredrick Ole Leliman & 4 Others,34 Lady Justice Lesiit held inter alia that:

…the object of keeping him [accused person] in custody prior to trial is not on the theory that he is guilty and not just on the necessity of having him available for trial but more importantly on the greater need to preserve the integrity of the prosecution evidence...

3.2 Presumption of innocence

Related to the Right to Bail is the Right of Presumption of innocence meaning that every accused person must be presumed innocent.35 The presumption of innocence is the primary rationale for the release of arrested or accused persons on bail or bond. Pre-trial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management.36 The freedom of an accused person during criminal process is regarded as desirable because of the value society places on individual freedom especially where the trial takes a considerable long time and in light of the constitution guarantee of presumption of innocence. Pending hearing and determination of cases, accused persons should not be kept under the harsh conditions of remand when they may ultimately be found innocent. The presumption detests pre-trial incarceration.

It has, however, been held that the mere opposition to grant, or denial, of bail to an accused does not violate the presumption of innocence.37 Where bail has been denied, the object of keeping an accused person in custody prior to trial is not because he is guilty but on the necessity of having him available for trial. The

34 [2016] eKLR. 35 Article 50(2) of the Constitution of Kenya, 2010.36 For example, accused persons should not be subject to the same rules and regulations as

convicts. In this respect, the International Covenant on Civil and Political Rights (ICCPR) provides that “accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.”

37 Lady Justice Lesiit in Republic vs. Zacharia Okoth Obado [2018] eKLR at para 18.

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right to be presumed innocent is available both to those being held in custody and those admitted to bail and one is not admitted to bail because they are presumed innocent, rather, they are admitted to bail because there are no compelling reasons to deny them that right.38

In Rex vs. Hawken, Farris C.J. stated thus:39

The question of bail is sometimes misunderstood. When a man is accused he is nevertheless still presumed to be innocent and the object of keeping him in custody prior to trial is not on the theory that he is guilty but on the necessity of having him available for trial. It is proper that bail should be granted when the Judge is satisfied that the bail will ensure the accused appearing at his trial.

Similarly, in Republic vs. Fredrick Ole Leliman & 4 Others,40 Lady Justice Lesiit in addressing the question of bail in relation to the presumption of innocence stated:41

The mere fact that an accused is denied bail does not mean that he stands convicted. Such an accused is nevertheless still presumed to be innocent and the object of keeping him in custody prior to trial is not on the theory that he is guilty and not just on the necessity of having him available for trial but more importantly on the greater need to preserve the integrity of the prosecution evidence, the safety of the witnesses, victims and other interested persons whose lives may be in jeopardy including that of the accused.

And finally, in Republic vs. Zacharia Okoth Obado,42 Lady Justice Lesiit held, inter alia, that:

This court recognizes the importance of Article 50 that an accused person should be presumed innocent until proved guilty. The accused person should be released on bail or bond whenever possible. Those are the words from the Bail and Bond Policy Guidelines [BBPG]. Opposition to granting of bail is not a violation of that right.

38 Republic vs. Nahashon Muchiri Mutua [2016] eKLR.39 (1944) 2 DLR 116.40 n 34.41 At para 80.42 [2018] eKLR.


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4. Balancing the Right to Bail against the Public Interest

The judicial process of granting or denying bail has two conflicting demands that need to be balanced. The process entails the delicate balancing of the accused person’s fundamental right to liberty and to be presumed innocent on the one hand, and public interest and the interest of justice43 on the other. The public interest consideration is important for the protection of the integrity of the trial process. The Constitutional threshold of the existence of a compelling reason before an accused person can be denied bail is itself an appreciation of the need to balance the rights of accused persons with the interests of justice. While every accused person is presumptively entitled to bail or bond, bail can be denied where convincing evidence is availed to justify such denial. The fundamental rights of an individual must be balanced with greater public interest. On the one hand, police officers and judicial officers should endeavour to preserve the liberty of an accused person, who is presumed to be innocent and should be allowed to keep the fabric of his or her life intact by, for example, maintaining employment and family and community ties. Preserving the liberty of an accused person also permits him or her to take an active part in the planning of his or her defence. On the other hand, the State has a duty to prosecute those who commit crimes, which may entail qualifying the individual right to liberty. The State has a duty to ensure public safety between the time of arrest and trial of accused persons, and a duty to protect the integrity of the criminal justice system. There should be peace and safety of the public and their property. Courts of law and all organs of Government have a duty to ensure that national and international security is preserved44.

Where, therefore, there is ample evidence to show that an accused person may undermine the integrity of the criminal justice system, by, for example, intimidating witnesses or interfering with the evidence, then a need arises to either deny such a person bail or bond, or set stringent bail or bond terms. Equally, where there is convincing evidence that the accused person will endanger a particular individual such as victims of the crime or the public at large, or even commit a serious crime, it also becomes necessary to subject an accused person to pre-trial detention. The interests of justice therefore demand the protection of the investigation and prosecution process against probable hindrance by accused persons. The public have an interest in the effective prosecution of offences.

43 Clause 1.5 of the Bail and Bond Policy Guidelines.44 Okello Augustine vs. Uganda (n 32).

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In The People (Director of Public Prosecutions) vs. McGinley, Justice Keane held inter alia that:45

The constitutional right of the applicant for bail to liberty must, in every case where there is an objection to the granting of bail, be balanced against the public interest in ensuring that the integrity of the trial process is protected. Where there is evidence which indicates as a matter of probability that the applicant, if granted bail, will not stand his trial or interfere with witnesses, and the right to liberty must yield to the public interest in the administration of justice.

Closer home, in Robert Karuru Njuguna vs. Republic, the High Court at Nyeri (Mativo, J) held inter alia:46

Granting bail entails the striking of a balance of proportionality in considering the rights of the applicant. It is the duty of the court to ensure that crime where it is proved, is appropriately punished, this is for the protection of society; on the other hand it is equally the duty of the court to uphold the rights of persons charged with criminal offences, particularly the human rights guaranteed under the constitution.

The learned Mativo, J relied in the decision of the Supreme Court of India in Gulabrao Baburao Deokar vs. State of Maharastra and Others,47 in which the Supreme Court (of India) cited its previous decision in Masroor vs. State of Uttah Pradesh and Another, where it stated as follows as follows:48

There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned.

5. Right to Bail is Automatic but not Absolute

The right to bail was previously restricted in the pre-2010 Constitution era49: bail was not available to accused persons facing capital offences; that is, offences

45 [1998] 2 I.R 408 at p. 414.46 Criminal Appeal Number 35 of 2014); [2015] eKLR.47 Criminal Appeal No. 2113/2013 @ Special Leave Petition (Criminal) No. 6020 of 2012.48 2009(14) SCC 286, para 13. 49 P.L.O Lumumba (n 9) 24 – 27.


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attracting maximum sentence of death. 50 Currently, however, all offences are bailable. The Constitution does not discriminate amongst accused persons as far as offences are concerned: there is no longer a distinction of offences as far as bail is concerned. In Republic vs. Pascal Ochieng Lawrence, the High Court at Kisii held inter alia that:51

Prior to the 2010 Constitution, persons charged with murder and other offences which attracted a death penalty on conviction could not be released on bail/bond. There is therefore no doubt that the Constitutional provisions under Chapter Four – The Bill of Rights – of the Constitution are great paradigm shifts from the old constitutional order.

Despite several decisions of superior courts in the land in the contrary, it is my considered view that the right to bail is automatic although not absolute. This paper argues that an accused person does not need to make an application to be granted bail. Bail is an automatic right and should be granted as a matter of right where there is no objection from the prosecution. Even in the case of unrepresented accused persons, who may not be aware of their right to bail, it is my argument that the court must automatically grant bail where there is no opposition and even where such opposition exist, grant bail where there are no compelling reasons.

6. Limitation of the Right to Bail

The Right to bail, just like many other rights or fundamental freedoms in the Bill of Rights, can be limited by law52. However, any such limitation has to be only to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.53 The only limitation of the right to bail is in the nature of compelling reasons; that is, reasons for not granting bail, and reasonable conditions which refer to the terms attached to the release of accused persons on bail, either monetary or non-monetary.

50 Murder, Robbery with Violence, Treason etc.51 Criminal Case Murder No. 129 of 2013); [2014] eKLR; para 2..52 Article 24 of the Constitution.53 Article 24 (1) (d) of the Constitution.

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6.1 Opposition to Grant of Bail

There seem to be no settled agreement as to the form of evidence the prosecution should present to persuade the courts of the existence of compelling reasons for the denial of bail. Although some courts insist that the prosecution must produce an affidavit sworn by the investigating officer54, others do not. In Republic vs. John Kahindi Karisa & 2 Others, for example, the Court held inter alia that:55

I do not think it was necessary for the Republic to file an affidavit to prove or substantiate such fears or misapprehensions. Of course, I would overrule any suggestions of possible interference with witnesses and evidence unless there is some tangible or at least some prima facie material that the Accused had attempted to do this or likely to do so by some known incident or specific conduct/demeanour.

6.2 Compelling Reasons for the Denial of Bail

The right of an arrested or accused person to be released on bond or bail, on reasonable conditions pending a charge or trial can only be limited where it is shown that there exists at least one compelling reason not to be released.56 Bail is now a constitutional right of every accused person which can only be limited where there are compelling reasons which compelling reasons must be proved by the prosecution on a balance of probability.57 However, what amounts to a compelling reason as envisaged under the Constitution is not defined. The closest attempt is the Criminal Procedure Bench Book58 which has outlined compelling reasons as stated in various cases, policy guidelines and others to include the likelihood that the accused will fail to attend court (s. 123A (2) (a), CPC). In Job Kenyanya Musoni v R (High Court at Nairobi Criminal Application 399 of 2012), the court stated that the key consideration when deciding the issue of bail is whether the accused will attend the trial or whether there is a likelihood of absconding. Reiterating this position, the court, in R v Salim Said Nassoro & 2 Others (High Court at Nairobi Misc. Criminal Application No. 351 of 2016), stated that the seriousness of the offence, per se, is not a ground for denying bail. An accused, a foreigner charged

54 See Aboud Rogo Mohamed & Another vs. Republic [2011] eKLR.55 [2010] eKLR.56 Article 49(1) (h) of the Constitution of Kenya, 2010.57 Republic vs. David Muchiri Mwangi [2018] eKLR.58 The Criminal Procedure Bench Book is a quick reference for judges and magistrates presiding

over criminal proceedings.


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with a terrorism offence, who had no ties in Kenya and who failed to provide a Kenyan surety, was considered a flight risk in Oluseye Oledaji Shittu v R.59

In Hassan Mahat Omar & Another vs. Republic, Lady Justice Achode held:60

What amounts to compelling reasons as envisaged in Article 49(1)(h) of the Constitution is a matter of judicial discretion. Kenya does not have statutory guidelines to govern the granting of bail. However, a glimpse at pertinent laws of other common law countries such as the Bail Act of England and Section 60(4) of the Criminal Procedure Code of South Africa, gives us examples of issues to consider in determining whether or not compelling reasons exist in a given case.

The court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public and other similar considerations. A trial court should, therefore, only deny an accused person bail where compelling reasons in the form of convening evidence is availed to demonstrate the release of such an accused person will present risks, and that such risks cannot be managed, even with the attachment of appropriate conditions.

There has been a plethora of judicial decisions as to what amounts to a compelling reason. In Republic vs. Danson Mgunya, & Another61 the High Court (Ibrahim, J) in relying on the decision of the Supreme Court of Nigeria in Alhaji Mujahid Dukubo-Asari vs. Federal Republic of Nigeria62 in which Justice Ibrahim Tanko Muhammad JSC restated the criteria that has been out for consideration by trial courts in the exercise of the grant of bail which criteria include among others, the nature of the charges, the strength of the evidence which supports the charge, the gravity of the punishment in the event of conviction, the previous criminal record of the accused if any, the probability that the accused may not surrender himself for trial, the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him, the likelihood of further charges being brought against the accused, the probability of a finding of guilt, detention for the protection of the accused, the necessity to procure medical or social report

59 High Court at Nairobi Miscellaneous Criminal Application No 130 of 2016.60 Nairobi High Court Criminal Revision No 31 of 2013.61 Criminal Appeal 21 of 2016; [2016] eKLR.62 SC208/2006.

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pending final disposal of the case among others. It’s important to note that the list is not exhaustive and every case must be considered on its own merit.

In Robert Karuru Njuguna vs. Republic,63 Mativo, J quoted the decision of the Court of Appeal of Uganda in Igamu Joanita vs. Uganda64 in which the Court had stated that the conditions stated therein for the release of an accused person on bail – compelling reasons in the context of Kenya – “are guidelines and are not exhaustive or mandatory and that they need not all be present. A combination of two or more of the said conditions will suffice.”

Other factors include the accused person’s own safety, security and protection, whether or not the accused person is likely to pose public danger by being released on bail, whether or not by releasing the accused on bail public confidence in the administration of justice will be dismissed and the character antecedents, associations and community ties of the accused person.

6.3 Burden of Proof of Existence of Compelling Reasons

Another departure from the pre-2010 jurisprudence as far as the question of bail is concerned is the fact that the burden rested on an accused person to demonstrate why he should be released on bail. That burden is now vested on the State65 to prove the existence of the said compelling reasons for the denial of bail to an accused person.66 In Republic vs. Pascal Ochieng Lawrence,67 the Court further stated that it is to be noted that unlike in the past when an accused person had to demonstrate why he should be released on bail/bond, that duty now properly belongs to the State.

6.4 Standard of Proof of Existence of Compelling Reasons

The standard of proof of the existence of such compelling reasons should be on a balance of probability and not beyond reasonable doubt as is the threshold for proof of criminal liability. At the point of determining whether or not to grant bail, the Court should only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence

63 n 46.64 Criminal Application Number 0107 of 2013) [2013] UGCA 6 (5 July 2013).65 Kisii High Court Criminal case No. 129 of 2013.66 Ibid .(para29).67 n 51.


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in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.68

In Clive Macholewe vs. Republic69 J. Katsala, J of the Malawi High Court stated:

In my judgement the practice should rather be to require the State to prove to the satisfaction of the court that in the circumstances of the case, the interest of justice requires that the accused be deprived of his right to release from detention. The burden should be on the state and not on the accused. He who alleges must prove. This is what we have always upheld in our courts. If the state wants the accused to be detained pending his trial then it is up to the state to prove why the court should make such an order.

6.5 Reasonableness of the Terms of Bail/ Bond

Where the court has made a decision to grant bail, the accused has to be released on reasonable conditions of bail.70 The reasonable conditions as mentioned in the Constitution refers to the bail terms including the amount of money in the case of cash bail, the security in the case of the surety bond and the other non-monetary terms thereto. What is reasonable will vary from case to case such that the bail terms attached where bail is granted depends on the circumstances of each case. This is where judicial discretion comes in. The court hearing the issue of bail shall, upon making the determination that bail is granted, exercise discretion. The discretion must however be exercised judiciously and judicially.

In Republic vs. Kenya Revenue Authority Ex-Parte Stanley Mombo Amuti, Mativo, J restated the principle that judicial discretion must be exercised judiciously thus: 71

It is well settled that whenever the court is invested with the discretion to do certain act as mandated by the statute, the same has to be exercised judiciously and not in an arbitrary manner and capricious manner.

The court quoted, with approval, the classic definition of “discretion” by Lord Mansfield in R. vs. Wilkes72 to wit:

68 Nimmagadda Prasad vs Central Bureau of Investigation (Criminal Appeal No.728/2013).69 171 of 2004 (2004) MWHC 53.70 Article 49(1)(h) of the Constitution.71 Judicial Review Application No 102 of 2018); [2018] eKLR.72 1770 (98) ER 327.

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Discretion when applied to courts of justice means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, `but legal and regular.

The emphasis on the need to attach reasonable conditions in respect of the accused person’s right to the presumption of innocence and right to liberty. Bail or bond amounts and conditions should be no more than is necessary to guarantee the appearance of the accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial.

Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.73 The High Court has the power to “direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.74 Before a person is released on bail or on his own recognizance, a bond for such sum as the court or police officer thinks sufficient shall be executed by that person, and by one or more sufficient sureties.75

The Anti-Corruption Courts have, in ensuring fairness to the suspects by taking into account the personal circumstances of each suspect also have by way of legal innovations, employed means to ensure that bail terms are not exorbitant and that the said terms do not otherwise amount to a denial of bail through backdoor. Such means include staggering of bail terms or the consolidation thereof.

6.6 Staggering of Bail Terms

The Anti-Corruption Courts have in a number of cases given different bail terms to different suspects facing charges under the same charge sheets. The Courts have continuously staggered such terms depending on a number of factors peculiar to each accused person and whether or not the accused person is in employment, the age, whether or not the accused is sick, the number of counts against each accused et cetera.

73 Criminal Procedure Code, Cap 75 Laws of Kenya s 123A (1).74 Ibid, s123 (3). 75 Ibid, s 124.


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In Republic vs. Reuben Marumben Lemunyete & 9 Others,76 the High Court in revising the Orders of the Chief Magistrate’s Court with respect to bail in Nairobi Republic vs. Moses Kasaine Lenolkulal & 10 Others77 granted staggered bail terms to the various accused persons in the following terms:

64. Having considered the personal circumstances of the applicants as placed before me in the applications for review, I make the following orders:

a. The 2nd, 3rd, 5th, 6th, 8th, 10th and 11th accused persons are granted a bond of Kshs. 5,000,000 with one surety of the same amount or cash bail of Kshs. 2,000,000.

b. The 4th and 7th accused persons who are said to be retired and no longer in the service of the County shall be released on a bond of Kshs. 1,000,000 with one surety of the same amount or cash bail of Kshs. 500,000.

c. The 9th accused person who is also said to be retired shall be released on a bond of Kshs. 500,000 with one surety of the same amount or cash bail of Kshs. 200,000.

6.7 The Doctrine of Consolidated Bond

Where an accused person faces several counts in one charge sheet, it would be prudent, reasonable and fair that instead of the court attaching specific bail terms for each count that consolidated terms in respect of all the terms is set.

In Stephen Gitau Karanja vs. Republic78 the learned C. Meoli, J in considering the accused person’s applications including one of consolidation of his cases and bond, held inter alia that:

Bail terms are set to ensure the attendance of an accused person for his trial. Under Article 49 of the Constitution, the Applicant is entitled to reasonable bail terms. And while there is no express provision in the Constitution or the Criminal Procedure Code specifically providing for consolidated bail terms, in appropriate cases, such order may be made in furtherance of the Accused’s rights under Article 49 and 50 of the Constitution. Each case must be considered on its merits and circumstances remembering always the presumption of innocence in favour of the Applicant. But also the rights of the complainants under Article 50(1) and the Victims protection Act. There will be cases where it may not be prudent or even practical to allow a single bail term to apply in separate trials.

76 Nairobi ACEC Revision No 12 of 2019 (consolidated with ACEC Revision No 11 of 2019).77 Nairobi ACEC Case No 3 of 2019.78 Kiambu High Court Miscellaneous Criminal Application No70 of 2017 [2018] eKLR.

J Victor Owiti

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7. Rights of Victims

In considering whether or not to grant bail, the courts must take into account the rights of victims and consider the views of the victims. A trial court is obligated to take into account the interest of victims and to be given an opportunity to be heard at any time when making a decision that is likely to affect their rights and interest before making decisions that affect them.79 The Court should consider the safety of victims and victims’ families in fixing the amount of bail and the release conditions for suspects and accused persons apart from the victims being informed about the bail conditions imposed on suspects and accused persons, particularly those designed to protect victims and victims’ families. Victims who have so requested should be kept informed about any bail applications made by suspects and accused persons, and the outcomes of such applications.

In Republic vs. Samuel Muthiora Wamboi,80 although the prosecution did not oppose the release of the accused person on bail for having no compelling reasons only asking the court to release the accused on condition that he did not interfere with witnesses, Justice Wakiaga relied on a Pre-Bail and Social Inquiry Report prepared in compliance with the provisions of Bond Bail Policy Guidelines on the suitability of the accused being admitted to bail and which included the Victim Impact Report as per the provisions of the Victim Protection Act to deny the Accused person bail. The Court held inter alia that:

From the Pre-bail report it is clear that the accused and the victim’s family are neighbours and know each other including witnesses who are likely to be interfered with or intimidated by the accused. I have also taken into account the fact that the accused has connection with Uganda Mbale where he attended school and having taken judicial notice on how it is easy to cross over borders, I have come to the conclusion that there are compelling reasons to enable the court deny the accused his constitutional right to bond at this stage.

In Republic vs. Leliman & Four Others,81 Lady Justice Lesiit while addressing the issue of Victim Participation held inter alia that:

It is clear from the recent developments in the law that victims of crime should be given an opportunity to be heard, including on matters of bond as a decision on that issue is likely to affect them... The role of the victim at the bail stage is to voice how the likelihood of the accused release on bond will or has affected them. They

79 Victim Protection Act, No. 17 of 2014, s 4 (2) (b).80 [2018] eKLR.81 n 34.


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could also say how the deceased death has changed their lives and can include their attitude towards the likelihood of the accused being released on bond.

8. Review of bail terms

Courts do not become functus officio upon grant or refusal of bail neither does the issue of bail become res judicata upon decision to grant or refuse bail. Bail is available at all times where any arrested person 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.82 Depending on the circumstances of a case, a trial court can always revisit and review its orders on bail and grant bail where it was initially denied or to cancel bail where it was granted, for reasons. It is there-fore not uncommon that judicial officers review their decisions on bail when upon renewed applications. If, for example, compelling reasons arise or are demonstrated after the arrested person has been released or granted bail but not yet released, the court may properly review the matter on the basis of the compelling reasons shown.

Such review of bail is based on the Doctrine of Changed Circumstances which refers to changes in the circumstances of the case, including circumstances of the accused, witnesses, victims or the society affected by alleged crime. The doctrine is based on common sense: where the circumstances of the case are so altered that compelling reasons are disclosed for the refusal of bail or for review of terms thereof, the court as a court of justice must reserve for itself a power to revisit the issue in the interest of justice not only for the accused but also for the complainant and the society at large. In the same way that an unsuccessful applicant for bail may repeat his application if his circumstances changed in such a manner as to favour his release on bail, so may the prosecution urge that the situation has deteriorated to compel a reconsideration of bail granted to the accused. Another example is where volatility on the ground is established to have ceased or for the cancellation of bail on account of accused’s refusal to attend court while on bail, when sureties withdraw or for other reasons. In considering a review of bail, however, the court shall consider the accused’s ability or propensity to interfere with the due administration of justice having regard to the circumstances of the case and the considerations of the society or public interest.83

82 Section 123 of the Criminal Procedure Code (as amended by the Constitution of Kenya 2010 to permit bail for all criminal cases).

83 EM Murithi, J in Republic vs. Diana Suleiman Said & another (Mombasa High Court Miscellaneous Criminal Application 55 of 2014) [2014] eKLR.

J Victor Owiti

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In Republic vs. Samuel Muthiora Wamboi,84 Wakiaga, J while denying the accused bail and ordering that he remains in custody until certain witnesses testified gave the accused person a window to renew his application for bail thus “the accused will be at liberty to renew his bond application upon the testimony of the said witnesses.”

In the realm of the International Criminal Court (ICC), the Pre-Trial Chamber can rely on the doctrine of changed circumstances to review the Chamber’s Ruling on the release or detention of an accused person before the ICC. The pre-trial Chamber shall periodically review its ruling on the release or detention of the person, may do so at any time on the request of the Prosecutor or the person. Upon such review, it may modify its ruling as to the detention, release or conditions of release, if it is satisfied that changed circumstances so require.85

Similarly, in Republic vs. Zacharia Okoth Obado86 where Lady Justice Lesiit had initially disallowed and deferred the application of bail for reasons that the Application could not be determined before witness statements and other evidence were availed to all the parties as that was the only way that the court could fully exercise its discretion, applying factors for consideration in determining whether or not a compelling reason existed to deny bail, the Court later revisited the question of bail a month later and in a ruling dated 24th October 2018 granted the Governor bail. It is noteworthy that the court in the process stated:

The court will be at liberty to cancel this bail and bond and to remand the 1st Accused in custody if any of the following conditions, which I hereby set as part of the terms upon which he is released, are breached.

9. Bail in Anti-Corruption and Economic Crimes Act

Although all suspects of crime are presumed innocent, judicial officers should be a little more cautious when dealing with the question of bail relating to corruption and economic crimes. Corruption and economic crimes are arguably worse than murder: economic crimes are well-designed and calculated schemes done for profit, unlike murder. Loss of public funds through corruption and economic crimes deny “Wanjiku” and the poor and sick basic rights, including

84 n 75.85 Article 60 (3) of the Rome Statute of the International Criminal Court.86 n 41


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good health, education, employment, food, and shelter, and lead to death.87 Such plunder of public resources can lead to anarchy, threat to peace, and threat to national security.

Corruption and Economic Crimes have also been equated to economic sabotage88 for reasons that funds meant for the greater good of the nation are stolen leading to a denial of fundamental rights and freedoms as envisaged in Chapter 4 of the Constitution. As such, judicial officers should be a little wearier when dealing with suspects of corruption and economic crimes. Prospective perpetrators of corruption and economic crimes should be made aware that there will be legal consequences if they plunder public resources.

As has already been stated above, since the right to bail is not absolute except where the offences attract only a fine, or where the jail term is a maximum of six months, bail in the case of corruption and economic crimes, just like all other crimes in Kenya, can be limited.

In Nimmagadda Prasad vs. Central Bureau of Investigation,89 the Supreme Court of India held, inter alia,:

Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.

The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.90

87 Senior Assistant of Director of Public Prosecutions (SADPP) Emily Kamau made the argument during the National Hospital Insurance Fund (NHIF) Case.

88 Hon D N Ogoti, Chief Magistrate in denying NYS suspects Bail.89 Criminal Appeal No.728/2013 dated 09 May 2013.90 Supreme Court of India in State of Gujarat vs. Mohanlal Jitamalji Porwal and Another (1987)

2 SCC 364.

Documents

The Right to Bail in Kenya: A Case Study of the Anti