Bail Applications

A bail application is a formal request to a court to release a person who has been charged with a criminal offence from custody pending the trial or determination of their case. In Kenya, the right to bail is guaranteed by Article 49(1)(h) of the Constitution of Kenya, 2010, which provides that an 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 released." The constitutional right is not absolute — the court may deny bail where there are compelling reasons — but the burden is on the prosecution to demonstrate those compelling reasons.

This area covers bail at every stage of the criminal process. Advocates handle bail at the police station — where a person has been arrested and is being held by the police, they can apply to the Officer Commanding Station (OCS) for police bond, which allows the person to be released without having to be brought before a court. Advocates handle bail before the Magistrates' Courts — where a person has been charged and is in custody, they prepare and argue an application for bail, presenting the accused's ties to the community, their sureties, and their undertaking to attend court. Advocates handle bail before the High Court — for serious offences and for appeals against the refusal of bail by the Magistrates' Courts.

Advocates prepare the bail application, which includes the supporting affidavit setting out the accused's personal circumstances — their age, family responsibilities, employment, residence, and community ties — and the proposed sureties. Advocates address the factors that the court considers in determining bail: the seriousness of the offence, the likelihood of the accused attending court, the likelihood of the accused interfering with witnesses, the likelihood of the accused committing further offences, and the interests of justice. Advocates present evidence and arguments to address each of these factors.

Advocates also handle applications for variation of bail terms — where the existing bail terms are too onerous (for example, the surety amounts are too high, or the reporting conditions are too frequent), they apply to the court for a variation. Advocates handle applications for the release of passports (where the passport has been deposited with the court as a bail condition and the accused needs to travel), and applications for the relaxation of reporting conditions.

Advocates handle the posting of bail — the process of providing the surety, executing the bail bond, and securing the physical release of the accused from custody. Advocates ensure that the bail bond is properly executed, that the surety understands their obligations, and that the release is processed without delay.

Advocates also handle the consequences of breach of bail — where the accused has failed to attend court, or has breached a bail condition, they apply for the reinstatement of bail and they defend against the forfeiture of the bail bond. In practice, the breach of bail can have serious consequences — including the issuance of a warrant of arrest, the forfeiture of the bail bond, and the loss of the right to bail in the future — and they handle these matters with urgency and care.

For capital offences — where the constitutional right to bail is most likely to be challenged — they prepare comprehensive bail applications that address the specific factors that the courts have identified as relevant in capital cases, including the strength of the prosecution evidence, the time likely to elapse before trial, and the risk of the accused absconding.