LLB Research Projects (2024)

Permanent URI for this collection

http://hdl.handle.net/11071/15698

Browse

Browsing LLB Research Projects (2024) by Author "Agingu, I. V. A."

Now showing 1 - 1 of 1
  • Thumbnail Image
    Item
    The poisoned fruit of pretrial detention: an analysis of the realization of the right to bail of accussed persons by Kenyan courts through the interpretation of bail conditions
    (Strathmore University, 2024) Agingu, I. V. A.
    Every accused person’s anthem is Article 49(1)(h) of the Constitution of Kenya 2010. It states that an accused person is entitled to bail pending trial. This fundamental right is acknowledged under Section 123(2) of the Criminal Procedure Code that states that bail amounts should not be excessive and ought to be fixed regarding the circumstances of the case. In interpreting the constitutional provision on bail, Kenyan courts have manifested a disparity in what ought to be a reasonable bail amount. Although not expressly mentioned, it is possible to invoke a remedy to pretrial detention. Kenya adopts pretrial detention that criminalizes poverty by endorsing pretrial detention for indigent indicted persons who lack the capacity to raise the bail amounts determined by Kenyan courts. This study was sparked while drafting a petition on a recent case of Issac Opiyo Onyango v Republic where the accused being a man of modest means was unable to raise the set bail amounts of a sum of Ksh. 300,000/= and was hence sentenced to languish in pre-trial detention. Consequently, this study examines the current interpretation of Section 123(2) of the Criminal Procedure Code by the Kenyan courts and whether it interferes with their duty to protect the realization of the right to liberty of accused persons vis-à-vis the presumption of innocence. This is achieved through exploring the origin and rationale behind bail and the criteria currently used by Kenyan courts in the dispensation of justice in the determination of bail terms. The study concludes by giving recommendations to the judges in Kenyan courts by presenting an inclusive and equitable viewpoint through identifying a socioeconomic measure which Kenyan courts ought to implement when determining bail amounts. An additional recommendation is the amendment of the Section 123 (2) of the CPC through the inclusion of the consideration of the socio-economic status of the accused when determining bail amounts.