ROD

prisons has been the practice in Kenya, and it is provided for by the Prisons Act 27 which in section
32 titled “Custody of persons under arrest” provides as follows;-
“Every person arrested in pursuance of any warrant or order of any Court, if such Court is
not sitting, may be delivered to an officer in charge for custody and such officer in charge
shall cause such person to be brought before the Court at its next sitting.”
However, despite the provisions of the fifth schedule requiring pre-trial detainees to be held in
Police lock-up facilities, not all Police stations in the country have those facilities, and pre-trial
detainees are still detained in prisons as per Section 32 of the Prisons Act. The danger with the
application of this provision of the Prisons Act is that, it has no custody time limit for the detention
of pre-trial detainees, meaning that these detainees will stay in prison until such a time that they
are either released by the Courts on bail or until after their trial and either acquittal or conviction.
The circumstances of the pre-trial detainees held in custody is worsened by the delay that is
often experienced in the trial of cases due to the heavy case back-log .This is a major drawback
in the administration of justice in Kenya as well as the incapacity of the Police to complete
investigations and identify witnesses in a timely manner, with the results accused persons are
detained for months of years before trial. 28 The only available safeguard for the pre-trial detainees
at the moment is the requirement that they be produced in the magistrate’s Courts at least once
in 14 days for mention so that the Court can look into their condition of detention and to ensure
that they are provided with the necessary material support when in remand.
Bond and Bail processes
Article 49(1) (h) of the Constitution of Kenya gives an arrested person the right “to be released
on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling
reasons not to be released.” Further, Article 49(2) of the Constitution provides that “A person
shall not be remanded in custody for an offence if the offence is punishable by a fine only or by
imprisonment for not more than six months.”
At the same time, the Criminal Procedure Code (CPC) empowers an officer in charge of a police
station or a Court to admit a person accused of an offence – other than murder, treason, robbery
with violence, attempted robbery with violence and any related offence – to bail or release on
executing a bond with sureties for his or her appearance. 29 Alternatively, such a police officer or
Court may, instead of taking bail from the accused person, release him or her upon executing
27 The Prison Act, Chapter 90 Laws of Kenya, Revised Edition 2009 (1977),
28 Article 51 Initiative (Freedom from Torture) ‘Draft – Kenya Baseline Study Report, 18 May 2012’ (2013)
29 Criminal Procedure Code, Chapter 75, Laws of Kenya, section 123(1).
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