1. The Constitutional Right
Article 49(1)(h), Constitution of Kenya 2010 guarantees every arrested person the right to be released on bond or bail, on reasonable conditions, unless there are compelling reasons not to release them.
Article 49(2) adds that a person cannot be held in custody for an offence punishable only by a fine or by up to six months’ imprisonment.
📌 Takeaway: Bail is a right, not a favour — the default position is release, not detention.
2. The Governing Statute
Section 123 & 123A, Criminal Procedure Code (Cap. 75) — empowers courts to admit accused persons to bail (including, since the 2010 Constitution, those facing murder charges — historically excluded), and sets out that bail may be denied only where compelling reasons are shown by the prosecution.
Bail and Bond Policy Guidelines, 2015 (National Council on the Administration of Justice) — the practical framework courts use to weigh bail applications, balancing the rights of the accused against the interests of justice and public safety.
3. What Counts as a “Compelling Reason”?
The Constitution doesn’t define the term — it’s been shaped by case law:
- Republic v Danson Mgunya & Another [2010] eKLR — Justice Ibrahim held that even a murder suspect holds an inalienable constitutional right to bail, restrictable only for compelling reasons.
- R v Joktan Mayende & 3 Others [2012] eKLR — defined “compelling reasons” as grounds that are forceful and convincing enough to make a court feel strongly that the accused should not be released, cautioning that bail must not be denied on flimsy grounds.
- Republic v Joseph Thiongo Waweru & 17 Others [2017] eKLR — held the prosecution must produce cogent, strong and specific evidence; mere allegations or suspicion are not enough.
Courts typically weigh:
- Risk the accused will abscond / fail to attend trial
- Risk of interference with witnesses or evidence
- Risk to public safety, national security, or the accused’s own safety
- Severity of the offence and strength of evidence
- Character, community ties, and flight risk of the accused
4. Why This Matters in High-Profile Cases
Even in serious cases (murder, terrorism, etc.), Kenyan courts must still individually assess whether compelling reasons exist — detention pending investigation (e.g., a 30-day custodial order) is treated differently from a formal bail/bond decision after charges are filed, and prosecutors carry the burden of proof at every stage.
Disclaimer: the above does not constitute legal advice. Kindly contact advocate to advise.
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