A bail is an agreement between an accused person or his/her sureties and the court that the accused person will attend court when required, and that should the accused person abscond, in addition to the court issuing warrants of arrest, a sum of money or property directed by the court to be deposited, will be forfeited to the court.

Article 49(1)(h) of the Constitution of Kenya, 2010 gives an arrested person 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. Article 49(2) further provides that “A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.”

Whereas the right to bail is anchored in the constitution, a time an accused person may be denied bail for sufficient reason. In this article we outline some of the factors courts may consider before granting bail to an accused person.

  1. Nature and gravity of the charge- the higher the gravity of the offence the less likely an accused may be admitted to bail
  2. Severity of the punishment in the event of conviction-if the alleged offence attracts a severe punishment, an accused may be denied bail for reason that he may abscond the court’s jurisdiction.
  3. Danger of accused absconding or fleeing if released on bail.
  4. The failure of the accused person to observe bail or bond terms on previous occasions- the character, behavior, means, position and standing of the accused may impact on the decision as to whether or not to grant bail.
  5. likelihood of the offence being repeated. If the accused person is likely to commit the alleged offence another time upon release, he/she may be denied bail.
  6. The relationship between the accused person and potential witnesses- where an accused person has greater influence on potential witness and there is a likelihood of intimidation, he/she may be denied bail.
  7. Whether accused person is gainfully employed. Where and accused person is employed and there is a likelihood of him/her losing the job, bail may be granted so as not to occasion any loss of employment.
  8. Child offenders- an accused person who is a minor may be granted bail based on age and best interest of the child.
  9. Reasonable apprehension of the witnesses being threatened-where there is a risk of witnesses being threatened or harmed by the accused person bail may be denied.
  10. Public order, peace or security-if for the safety of the accused person and the public at large demands, an accused may be denied bail for his/her own safety. and
  11. Danger of justice being thwarted by grant of bail- while a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be denied.

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