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Situational Analysis

5.1 Once a court has granted an accused person bail, and attached the conditions thereto that are deemed necessary to ensure that the accused person attends
court as and when required, there ought to be mechanisms for effectively monitoring the accused person in appropriate cases. This is the objective of bail supervision, whose aim is not only to assist such accused persons to attend court as and when required, but also to comply with bail conditions, such as
refraining from interfering with witnesses. In this sense, the mechanisms for monitoring an accused person should be based on the risks he or she poses as determined at a bail hearing. Bail supervision entails tasking a Probation Officer to supervise an accused person who has been released on bail, with the goal of ensuring that the accused person complies with bail conditions and attends court as and when required.

5.2 Unfortunately, Kenya does not have a bail supervision system at present. As a result, the enforcement of bail conditions is not effective. This partly explains why there is a high rate of absconding among persons granted bail or bond, particularly free  bonds and cash bail.

5.3 The problem of absconding is exacerbated by lapses in the approval of sureties, who should play a critical role in ensuring that accused persons attend court
and adhere to bail conditions. It is the responsibility of the court, working together with the prosecution and the police, to determine the suitability of sureties. However, it seems that there are no clear procedures for the approval of sureties, given the different practices adopted by the subordinate courts and the High Court. Indeed, the police have complained that the courts do not involve them in the verification of sureties, yet somehow expect them to trace accused persons who have absconded.

Policy Directions

5.4 Accused persons released on bail will be placed under the supervision of the Probation and Aftercare Service, or chiefs or police officers, in appropriate
cases to ensure that he or she adheres to bail or bond terms and conditions.

5.5 Where it is brought to the attention of the court that an accused person has failed to adhere to the terms of bail, the court shall summon the accused person to show cause why the terms of bail should not be revoked. Where the accused person does not honor the summons, or furnish the court with a reasonable explanation, the court may vary or revoke the bail terms.

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