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What is the difference between a bail and bond?

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Introduction

In the context of the Kenyan legal system, the terms "bail" and "bond" are often used interchangeably but they have distinct meanings and applications. Understanding the difference between these two legal concepts is crucial for anyone involved in the criminal justice system, whether as an accused person, a legal practitioner, or a member of the public seeking to understand their rights or the rights of others. This explanation will draw upon the Constitution of Kenya, 2010, and the Criminal Procedure Code to delineate the differences between bail and bond.

Definition of Bail
Definition of Bond
Key Differences Between Bail and Bond
- 3.1 Legal Basis
- 3.2 Nature and Form
- 3.3 Conditions Attached
- 3.4 Financial Implications
Conclusion

1. Definition of Bail

Bail refers to the temporary release of an accused person awaiting trial on condition that a sum of money is lodged to guarantee their appearance in court. The legal basis for bail in Kenya is found in the Constitution of Kenya, 2010, under Article 49(1)(h), which states that every accused 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 Criminal Procedure Code further elaborates on the procedures and conditions for granting bail.

2. Definition of Bond

A bond, on the other hand, is a legal agreement made by the accused person or one made on behalf of the accused by a surety. The agreement assures the court of the accused person's appearance for trial or any other proceedings before the court. Bonds can be secured (requiring payment or a pledge of property as security) or unsecured. The Criminal Procedure Code provides the framework for the issuance of bonds, including the terms and conditions that may be attached.

3. Key Differences Between Bail and Bond

3.1 Legal Basis

Bail: Grounded in the Constitution of Kenya, 2010, as a fundamental right of an accused person.
Bond: Governed by the Criminal Procedure Code, focusing on the procedural aspects of securing an accused person's temporary release.

3.2 Nature and Form

Bail: Primarily involves the deposit of cash or other financial instruments as a condition for release.
Bond: Involves a legal agreement, which may or may not involve a financial component, between the accused (or a surety) and the court.

3.3 Conditions Attached

Bail: Conditions are primarily financial but may include other conditions such as reporting to a police station or surrendering a passport.
Bond: Conditions may include a financial commitment by a surety and other non-financial conditions similar to those that can be attached to bail.

3.4 Financial Implications

Bail: Direct financial implication for the accused or their family, as money must be deposited for release.
Bond: May not always have a direct financial implication if unsecured but involves a promise to pay a specified amount if the accused fails to comply with the terms of the bond.

Conclusion

Understanding the distinction between bail and bond is essential for navigating the Kenyan legal system effectively. While both mechanisms serve to ensure the accused person's appearance in court, they operate under different legal frameworks and have distinct characteristics and implications. Bail is a right enshrined in the Constitution and involves a financial commitment, whereas a bond is a broader agreement that may or may not involve financial terms. Both play a critical role in balancing the rights of the accused with the interests of justice, ensuring that individuals are not unjustly detained while awaiting trial.