B the likelihood of the accused interfering with the

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b. The likelihood of the accused interfering with the investigation If the accused persons seeks bail before investigations are exhausted, the court may not find it just to release the accused due to the fear of him concealing, destroying or tampering with evidence. c. Likelihood of interfering with witnesses. The court will consider the relationship between the accused person and the prosecution witnesses. If it considers that the accused person upon release on bail will interfere with witnesses either through violence, threats and intimidation or bribery, bail may be withheld. This was the holding in the case of Republic vs Danson Mgunga and another 8 d. The nature of the offence the accused is charged with Although the constitution does not cite the seriousness of the offence with which the accused is charged, the criminal procedure code denies bail to felonious offences such as murder and treason. The more serious the charge, the more likely the accused will abscond trial. This was the holding by Porter J in Watoro v Republic 9 that seriousness offence has a clear bearing, that the court has to bear in mind, on the factors influencing the mind of an accused person facing a charge that attracts a high penalty. 5 6 7 8 9
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5. Likelihood of commission of more offences The court has to balance between the right to liberty of the accused person and the public safety. On this ground, if the court finds out that the accused person had been accused and either convicted or acquitted for lack of evidence on the same charge previously, it may be compelled to contain the accused person in custody. In Mohamed Khamis Mazrui and others vs Republic 10 , the court held that fundamental rights of liberty are subject to respect for the rights and freedoms of others and for public interest. These are the key considerations while granting or denying bail. However, there re other factors such as safety and security of the accused, breach of bail terms and pausity of information given by the accused among others. Question 8 The challenge to overgrowing prison population and possible judicial response to the same 10
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There has been a worrying trend in increase in prison population in the near past. In a statement released by the chief justice David Maraga on 23 rd January2017, being an audit report on the country’s criminal justice system, more that 75 % of inmates are poor petty offenders. It is evident that the judiciary therefore has a role to play in the reduction of prison population. One of the problems associated with prison overcrowding is the fact that Magistrates and judges are reluctant to award bail or bond. However, a right to be released on bail is a constitutional right that should only be denied with justifiable reasons. Close to 41% of inmates are persons in remands. The policy guidelines on bail and bond that were put in place ought to be adhered to by magistrates and judges to ensure that person’s whose cases are ongoing are out of remand, even if it may require that they be under the supervision of probation officers.
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  • Fall '16
  • Ben Sihanya
  • Law, High Court of Justice, Bench

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