The process of granting bail to accused individuals involves a variety of legal mechanisms designed to ensure their attendance at court proceedings and the preservation of public safety. One of these mechanisms is the provision of sureties and securities, which are essential components in securing an accused person’s release on bail.
This article delves into the critical aspects of sureties and securities within the Kenyan legal framework.
Role of Sureties in Bail
- Securing Attendance: To secure the attendance of an accused person who has been released on bail, the court may require the accused to provide one or more sureties, as outlined in section 131 of the Criminal Procedure Code (CPC). Sureties play a pivotal role in vouching for the accused’s appearance at scheduled court proceedings.
- Examination on Suitability: The suitability of a surety is a fundamental consideration for the court when determining whether to approve a proposed surety. The court examines the suitability of a surety on oath, taking into account several key factors, including financial ability, character, nature of the relationship with the accused, and residence, among other factors. This examination is crucial in ensuring that the surety is capable and willing to fulfill their obligations.
- Involvement of the Prosecution: The court must be satisfied that a proposed surety understands the obligations they are undertaking and is willing to assume this role. During this process, it is essential for the prosecution to be involved. This cooperation ensures that the information provided by the accused and the surety is verified, promoting transparency and accountability.
- Judicial Record: Examining the suitability of a surety is a judicial process, and all relevant details must be recorded. This ensures that the decision-making process is transparent and verifiable, as demonstrated in the case of . In R v James Kiarie Mutungei (High Court at Kajiado Criminal Revision 1 of 2017).
Surety’s Obligations and Penalties
Upon the court’s approval of a surety, it is essential for the surety to comprehend their obligations and responsibilities, especially in cases where the accused absconds or breaches the bail terms:
- Explanation of Penalties: The court should clearly explain to the surety that, in the event of the accused absconding or violating the bail conditions, the surety may be required to pay a penalty or forfeit the bail or bond amount.
- Surety’s Application for Discharge: A surety may apply to the court to be discharged from their obligations, as provided for in section 128(1) of the CPC. In cases where the application is made in the absence of the accused, the court should issue a warrant of arrest against the accused and order them to provide other sufficient sureties. If the accused fails to do so, they may be remanded into custody.
- Deceased Surety: When a surety dies before the bond is forfeited, the court should discharge the person’s estate and may require the accused to provide another surety, as outlined in section (s. 129, CPC).
Role of Securities in Bail
In certain cases, an accused person may be required to provide a security as a condition for their release on bail:
- Types of Securities: Securities may include valuable assets like title deeds, motor vehicle log books, or insurance bonds. These securities serve as collateral, assuring the court that the accused will adhere to the bail conditions.
- Valuation Report: The court may require a valuation report to ascertain the value of the property being offered as security, particularly when the security is for a substantial amount. This valuation report helps ensure that the security aligns with the bail requirements.
- Restraining Transfer: Upon the acceptance of a title deed or motor vehicle log book as a security document, the court should issue an order restraining the transfer of any interests in the secured property. This order is essential to safeguard the integrity of the security.
Penalties and Enforcement
- Non-Compliance Penalties: If the accused absconds, the surety may be ordered to attend court to pay a penalty or provide a justification as to why the penalty should not be paid, as stipulated in sections.131(1), CPC. Failure to pay the penalty may result in the court issuing an order for the attachment of the surety’s movable property or the estate if the surety is deceased, as specified in section s. 131(2), CPC.
Conclusion
The involvement of sureties and the provision of securities are integral components of the bail process in Kenya. Ensuring the suitability of sureties, their understanding of their obligations, and the accountability of accused individuals are critical aspects of bail decisions.
Additionally, the proper acceptance and management of securities further secure the bail conditions. These mechanisms collectively contribute to the effectiveness and fairness of Kenya’s legal system in dealing with accused persons awaiting trial.
