BAIL PENDING TRIAL

IT MAY BE GRANTED: By the police at the police station. By a magistrate in court.

BAIL FROM THE POLICE STATION

S 123 CPC Officer in charge of the station exercises

this power where it is impracticable to produce the alleged person before court within reasonable time.

If a person arrested is not released on bail he must be brought to court without delay.

If the officer in charge deems that no offence has been committed then he can release the arrested person

The check however is that the officer is required to make an apprehension report to the magistrate.

Officer must report to the nearest magistrate all cases of persons arrested without a warrant within the limits of their respective stations whether they have been admitted to bail or not.

Hussen v Republic: police officer must inquire into a case before exercising discretion to release person on bail.

If one is arrested on a warrant then the warrant determines whether he is to be held in custody or released on bail.

If arrested without a warrant the police determine whether or not to release the suspect after charging him.

Suspect should be detained in the police station only if custody officer reasonably thinks that such a detention is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him.

BAIL DECISIONS BY COURT The presumption works in favor of bail

works solely to the grant of bail by a court post-charge and prior to conviction at all stages of the proceedings.

Can be accorded at anytime during the proceedings.

Presumption applies post-conviction where a court adjourns the case in preparation of post-sentencing.

Under English law where prosecution seeks to rebut the presumption by objecting to the accused person being granted bail, the court will invite both parties to make submissions on the matter and they later decide.

When court adjourns a case (whether overnight or for a week or a month)it has to decide whether the accused should be released on bail or remanded in custody.

High court may whether on has been committed for a trail or not direct that the person be admitted to bail with or without sureties.

May also reduce bail directed by a subordinate court or police officer.

George Kamau Ng’ang’a v R

BAIL PENDING APPEAL. Does not exist as of right and is issued

only in exceptional circumstances. In application for bail pending trial

presumption of innocence casts the burden on the prosecution to show why the accused should not be granted bail.

In application for bail pending appeal presumption of innocence is not operative.

Presumption at this stage is that the accused was properly convicted and the burden is on him to show why he should get bail pending appeal.

An application for bail pending appeal can only be made in respect of an offence which was originally bailable.

High court or subordinate court that convicted or sentenced a person may grant bail or may stay execution of a sentence or order pending the entering of an appeal on such terms of surety as may seem reasonable to the specific court.

Court should not feel inhabited to consider the application merely because he has convicted the accused.

Should consider bail pending appeal on its own merits.

Applicant must show overwhelming chances of the appeal succeeding.

Abdi v R Medical condition of the applicant, nature

of the offence, the sentence imposed and the likely delay in the preparation of the appeal must be considered as well.

Main consideration is if the case is exceptional and unusual reasons appear.

Long vacation between application for appeal and the date of appeal are also considered good reasons to grant bail.

After entering an appeal the High court or the subordinate court which convicted or sentenced the person may order he be released on bail without sureties.

If one is not released on appeal court may on his request order the execution of the sentence or order appealed against be suspended pending the hearing of the appeal.

Where an application for bail is made to the subordinate court and refused no further application shall lie to the High court but one refused bail may appeal against refusal by the High court.

Court of appeal has no jurisdiction to entertain an appeal from a refusal of the High court to grant bail pending an appeal to that court.

R v Shah Daniel Muhuti Kibera v R Where the accused is refused bail

pending appeal the hearing of the appeal ought to be given priority.

FACTORS TO BE CONSIDERED BEFORE BAIL IS GRANTED.

Opinder Singh Naul v R: statedd the test; whether it is possible that the accused will appear in court to take his trial.

Criteria that the trial court is to apply to grant or to refuse bail pending trial of an accused: The nature of the charges Strength of the evidence which supports the

charges The gravity of the punishment in the event of

conviction

Previous criminal record of the accused if any Probability that the accused may not

surrender himself for trial Likelihood of the accused interfering with the

witnesses or may suppress any evidence that may incriminate them.

Likelihood of further charges being brought against the accused

Probability of guilt

Detention for the protection of the accused. The necessity to procure medical or social

report pending final disposal of the case.

Grounds or factors that a court will consider when determining the question of pre-trial:

1. Likelihood of appearance at the trial.2. likelihood of interference with

investigations.3. Likelihood of interfering with witnesses.4. The nature of the offence the accused is

charged with.

5. Likelihood of commission of more offences.6. Safety or security of the accused.7. The accused is serving a custodial

sentence.8. Breach of bail terms.9. Relative strength of prosecution case.10. Paucity of information.11. The circumstances under which the charge

had arisen.

12. Deposit in lieu of recognizance.