Bail and bond in Kenya: how courts decide

Article 49(1)(h) of the Constitution gives an arrested person the right to be released on bond or bail, on reasonable conditions, pending charge or trial, unless there are compelling reasons not to release them. This applies to all offences, including serious ones.

Compelling reasons courts consider

• the risk the accused will abscond,
• the risk of interfering with witnesses or evidence,
• the seriousness of the offence and the likely sentence,
• whether the accused is a danger to the public, and
• the accused’s own safety.

The prosecution bears the burden of showing compelling reasons, usually by affidavit.

Terms of release

Courts can set:

• cash bail — a sum deposited with the court,
• a bond with or without sureties, and
• conditions such as reporting to a police station, surrendering travel documents or not contacting witnesses.

The terms must be reasonable and proportionate to the accused’s means.

Reviewing bail terms

If terms are too harsh to meet, apply to the same court to review them, or to the High Court for revision.

Sureties

A surety guarantees the accused will attend court and may forfeit the bond if they do not.

This article is general information, not legal advice on your situation.

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