By: Vivian Navate
Public debate often erupts when courts impose what appear to be high bond terms in cases that do not involve physical violence. Many assume that bond should automatically be low where no blood has been shed. Kenyan law, however, approaches bail and bond differently, emphasizing the need to balance the rights of the accused against the interests of justice, public order, and the safety of others.
Under the Constitution, bail is a right, but it is not absolute. Courts are empowered to deny bail or impose strict terms where there are compelling reasons. These reasons are preventive, not punitive, they aim to ensure that the accused person attends court, does not interfere with witnesses, does not flee, and does not endanger the public or themselves.
One of the most critical considerations is flight risk. A person may be deemed a flight risk even without violent tendencies. Factors include nationality, lack of permanent residence, absence of family or property in the country, and past behavior. Courts also assess whether the accused might evade trial knowing the potential sentence upon conviction. In such cases, higher bond amounts or conditions like surrendering passports are imposed to ensure accountability.
The nature and seriousness of the offence is another guiding principle. Seriousness is not only measured in terms of physical harm, but also the impact of the alleged conduct. For instance, offences involving fraud, public misinformation, or threats to public order may not cause bodily injury but can affect thousands of people or create national panic. Judicial officers therefore impose stricter bail terms for such cases, particularly where the public interest is high.
Courts also weigh the strength of the prosecution’s case. While bail is granted on the presumption of innocence, judges and magistrates consider the likelihood that the accused might flee if faced with strong evidence. If the prosecution’s case is watertight, or if witnesses could be intimidated, bond terms may be set higher, or bail may be denied altogether. Conversely, where evidence is weak, the court may be more lenient.
Character and past conduct of the accused also play a significant role. First-time offenders are often treated more leniently, while repeat offenders, especially those who have previously breached bail, face stricter terms. Courts also look at how the accused behaves before the court, their employment status, and social ties. A person without stable employment, property, or family support is considered more likely to abscond, which justifies higher bond conditions.
The relationship between the accused and potential witnesses is carefully examined. Where the accused holds power over witnesses, whether as an employer, parent, or community leader, the risk of interference is high. Courts mitigate this by imposing bond conditions or refusing bail. Similarly, protecting victims or complainants is a constitutional obligation. Where release could expose a victim to intimidation or harm, bond terms are adjusted, or bail is denied.
Courts can also impose specific conditions on bail, such as prohibiting the accused from visiting certain areas, contacting witnesses, or attending particular events. Remember when Governor Obado was barred from going to Migori when the Sharon Otieno case was ongoing? Also when Governor Natembeya was barred from office while EACC conducted their investigations? These measures are designed to prevent the accused from obstructing justice, tampering with evidence, or causing public unrest.
It is important to note that bail is not punishment, nor is it a sentence. Its primary purpose is to secure the accused’s appearance in court. The law recognizes that each case is unique. Even among similar offences, bond terms may differ significantly depending on the specifics of how the offence was committed, the accused’s behavior after the incident, and other contextual factors.
This case-by-case discretion explains why two individuals facing seemingly similar charges may receive vastly different bond amounts. A minor offence committed without aggravating circumstances may attract a modest bond, while a case with broader public implications or higher flight risk may warrant higher terms. Judicial officers must therefore apply principles consistently, but with flexibility to account for the nuances of each case.
Ultimately, the guiding principle is justice balanced with precaution. The Kenyan judiciary, through the Bail and Bond Policy Guidelines, aims to standardize considerations while maintaining flexibility. Courts strive to ensure that no one is unfairly detained or released in a manner that compromises the rule of law.
By understanding these principles, the public can better appreciate why courts sometimes impose seemingly “hefty” bonds in non-violent cases. These measures protect not just the judicial process, but also the accused, the victims, and society at large.
