Ask a lawyer:
What is the difference between a bail and bond?

mwakili.com

In the Kenyan legal system, the concepts of bail and bond, although often used interchangeably in casual conversation, have distinct legal meanings and implications. Both mechanisms serve the fundamental purpose of ensuring an accused person's temporary release from custody while guaranteeing their appearance in court at a future date. However, the nuances between them, their legal foundations, and the conditions under which they are granted or denied are pivotal in understanding their roles within the judicial process.

Introduction
Understanding Bail
Understanding Bond
Legal Foundations of Bail and Bond in Kenya
Conditions for Granting or Denying Bail and Bond
Case Laws and Legal Precedents
Conclusion
TLDR

1. Introduction

The Kenyan Constitution and the Criminal Procedure Code (CPC) provide the legal framework for the application of bail and bond. These legal instruments aim to balance the rights of the accused against the interests of justice, ensuring that individuals are not unjustly detained while awaiting trial, except under specific circumstances.

2. Understanding Bail

Bail is a legal mechanism that allows an accused person to be released from custody, typically on condition of a cash deposit or security. The primary purpose of bail is to ensure that the accused returns to court for their trial or any other proceedings related to their case. The amount and conditions of bail are determined by the court and can vary significantly based on the nature of the offense, the accused's ties to the community, their financial situation, and any potential risk they might pose if released.

3. Understanding Bond

A bond, on the other hand, involves a third-party agreement where a surety (either an individual or a corporate entity) pledges to pay a specified amount to the court if the accused fails to appear as required. Bonds can be either personal or corporate, with personal bonds typically involving friends or family members of the accused and corporate bonds involving a professional bondsman or a financial institution. The bond serves as a financial guarantee to the court, ensuring the accused's compliance with the terms of their release.

4. Legal Foundations of Bail and Bond in Kenya

The Constitution of Kenya, under Article 49(1)(h), guarantees every 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." Furthermore, the Criminal Procedure Code (CPC), Cap 75 of the Laws of Kenya, provides detailed provisions on the application, conditions, and revocation of bail and bond.

5. Conditions for Granting or Denying Bail and Bond

The decision to grant bail or bond is at the discretion of the court, guided by principles such as the nature and severity of the offense, the likelihood of the accused absconding, the accused's criminal history, the strength of the evidence against the accused, and the potential risk to public safety. In cases involving capital offenses or violent crimes, the court may impose stricter conditions or deny bail or bond altogether.

6. Case Laws and Legal Precedents

Several landmark cases in Kenya have shaped the application of bail and bond. For instance, in the case of Republic v. Paul Kihara Kariuki & 4 others [2018], the High Court set out guidelines for the consideration of bail and bond applications, emphasizing the need for courts to balance the rights of the accused with the interests of justice. Another significant case is Republic v. Jimi Wanjigi & 2 others [2018], where the court reiterated that bail and bond are constitutional rights and that denial must be justified by compelling reasons.

7. Conclusion

Understanding the difference between bail and bond is crucial for navigating the Kenyan legal system. While both mechanisms serve to ensure an accused person's presence at trial, they operate under different conditions and have distinct legal implications. The Kenyan legal framework, supported by case law, provides a comprehensive approach to bail and bond, emphasizing the protection of individual rights while safeguarding the interests of justice.

TLDR

In summary, bail involves the release of an accused person under a cash deposit or security, while a bond involves a third-party agreement to pay the court if the accused fails to appear. Both are fundamental rights under the Kenyan Constitution, subject to the court's discretion and guided by specific legal principles and case law precedents.