NAIROBI, Kenya — The Judiciary has moved to clarify the legal principles behind the granting of bail and bond in criminal cases, following mounting public concern over cases of suspects—many from poor backgrounds—being detained due to unaffordable bond terms.
Judiciary spokesperson Paul Ndemo addressed the issue in an interview with NTV, stressing that judicial officers have wide discretion when setting bail or bond, but their decisions are guided by key legal considerations aimed at balancing justice, public safety, and the rights of the accused.
“The court will look at the seriousness of the offense and the varying circumstances of the case,” Ndemo said. “Reasonable has been left to the discretion of a judicial officer.”
His remarks come in the wake of national outrage over the death of Julia Wangui Njoki, a 24-year-old woman who died in custody after being unable to raise a KSh 50,000 bond following her arrest during the Saba Saba protests in Nanyuki on July 7.
She had been charged with malicious damage to property alongside others.
Her case has reignited debate over how courts handle bail and bond for protest-related offences, and whether bond is sometimes used as a punitive measure—especially for those without the means to secure their release.
When Courts Grant or Deny Bond
Ndemo noted that courts are required to consider various factors when deciding whether to release a suspect on bond or bail. These include:
- Flight risk: Whether the accused is likely to abscond if released.
- Threat to witnesses or victims: If the suspect may interfere with investigations or intimidate witnesses.
- Ties to the community: If the accused has a fixed abode or local connections, they’re more likely to be granted bond.
- Nationality: Foreign nationals without known residence in Kenya are less likely to be released.
“The court can even release a suspect on personal bond—meaning no money is paid—if they are not a flight risk or a threat to the case,” Ndemo explained.
He also said that prosecutors bear the burden of presenting convincing evidence if they believe a suspect should not be granted bond, especially in cases involving threats to public safety or the administration of justice.
Right to Legal Support
Ndemo reminded the public that all suspects have the right to appear in court with a relative or close associate to help process bond terms.
Where this is not possible, an intermediary person may be used to coordinate with advocates or family members to secure release.
Critics of the system have argued that, in practice, bond amounts often reflect a suspect’s perceived political alignment or public profile, rather than their actual threat level or ability to pay.
What’s the Difference Between Bail and Bond?
The Judiciary defines bail as a temporary release condition set by the court to secure a suspect’s appearance at trial.
Bond, on the other hand, is an undertaking—usually backed by money, sureties, or property—that commits the accused to abide by the court’s conditions, or risk forfeiture of the amount.
The court also has the power to cancel bail or bond if the accused breaches any of the conditions.
