What's the difference between Bail, Bond, and Surety?

Chief Justice Martha Koome during a past event at Serena Hotel in Nairobi. [Edward Kiplimo, Standard]

The terms, bail and bond, are popularly used in the corridors of justice, especially in court, and police cells.

A cash bail is a condition set by the court to secure the release of an accused person temporarily as they wait for the conclusion of their trial.

The Kenya Law Reforms Commission (KLRC) further defines it as an agreement between an accused person, or his/her sureties, and the court that the accused person will attend when required, and that should the accused person abscond, in addition to the court issuing warrants of arrest, a sum of money or property directed by the court to be deposited, will be forfeited to the court.

The Kenya Judiciary explains that legally, anyone who is accused of capital or minor offenses has a right to bail, but the right is not absolute.

The court has the discretion to deny or grant the accused person bail depending on the circumstances of each case.

In most offenses, the court grants cash bail which is paid to the judiciary and is refunded to the accused once the case concludes.

At the Police Station, a suspect may be released on a cash bail, with or without sureties, or on a personal (free) bond or recognizance. 

Surety

A surety is a person who ensures that an accused person appears in court and abides by bail conditions. 

The surety puts up security, such as money or title to a property, which can be forfeited to the court if the accused person fails to appear in court.

The Police Force Standing Orders require the officer in charge of a police station to release any person arrested on a minor charge on the security of cash bail, as a general rule, unless the officer has good grounds for believing that the arrested person will not attend court when required to do so.

The cash bail should be handed to court by the date the arrested person is arraigned and a receipt obtained.

 In case a person who has been released on bail fails to appear in court, the officer in charge of the police station should apply to the magistrate for a warrant of arrest.

At this point, the magistrate may order the cash bail to be forfeited or retained on court deposit until the accused person appears.

Bond

Comparably, a bond is an undertaking, with or without sureties or security, entered into by a detained accused person under which he or she binds him or herself to comply with the conditions of the undertaking and if in default of such compliance to pay the amount of bail or other sum fixed in the bond.

A bond is in the form of surety where an accused is expected to provide someone to stand in as surety by giving security such as a title deed, pay slips, or a car equivalent to the bond issued by the court.

As a surety for the accused person, one has to ensure that the accused, who you have agreed to pay bond for, appears in court and abides by all bail conditions of the court.

The downside of being a surety in a court case is that if the accused decides to abscond and runs away then the property you put up as security will be forfeited to the court.

In some instances, the sureties are locked up by the court if they fail to produce the accused person in court as agreed.

When it comes to bail if the accused has the money, he can pay it in the Judiciary bank account and get released on the same day he or she was charged.

While bond takes time, sometimes weeks because it involves verification of the security provided by the surety, you choose who also has to come to court for cross-examination by the court before the accused is released.

It is worth noting that the Police Standing Orders are categorical that a person who is released from custody on either bail or bond can only be required to appear before a magistrate on a specified date, and that “Under no circumstances will a prisoner who is released on bond be required to appear at a police station or other place.”

"Where the accused person violates bail or bond terms, the police should cancel the bail or bond, re-arrest him or her, bring him or her to the police station, and take him or her to court." 

The court can also decide to cancel the bail or bond of an accused person if they flout or go against any condition set by the court, and they will be taken back to remand until the determination of their case.

The information in this story has been sourced from Judiciary Kenya.