Standard of proof
The burden of proof lies on the prosecution to establish the existence of compelling reasons that would justify the denial of bail, or the imposition of suitable bail terms and conditions. Some courts have required the prosecution to present “cogent, very strong and specific evidence” in order to justify the denial of bail. Mere allegations or suspicion will not be sufficient.
According to these courts, where the prosecution opposes bail, it must support its objection with cogent reasons and facts, and it is not enough to “make bare objections and insinuations.” The question becomes, should the prosecution prove this allegation on a balance of probabilities or beyond reasonable doubt in order to persuade the court? It seems that each court is left to its own devices, with the standard of proof shifting depending on the profile of the suspect.
Although some courts insist the prosecution produce an affidavit sworn by the investigating officer, others do not. But even where the prosecution has presented such affidavits, they may not always meet the set threshold.
Second, how can the court make a bail determination without compromising the accused person’s rights to a fair and unbiased trial? Third, how can courts obtain accurate, relevant, and verified information they require to make fair bail decisions? Unfortunately, the nature of our adversarial system is such that the information furnished to the court on behalf of bail applicants is not always reliable, while the prosecution may prefer that the accused person be detained pending trial for various reasons. Further, because courts do not have systems for verifying such information, they may not always make fair and appropriate bail decisions. It may therefore be necessary for courts to seek independent information if they are to make fair and appropriate bail decisions.
Disparities in the exercise of judicial discretion have often led to the imposition of bail amounts that are either unreasonably high or unreasonably low in comparison to the offence committed. For example, it is not unusual that a person accused of obtaining Sh8,000 will be required to pay a cash bail of Sh50,000. In addition, where two or more persons are accused of the same offence, the courts tend to set uniform bail terms for all of them, without distinguishing their circumstances. Further, there is no uniformity in how courts approach bail. In Nairobi, for example, accused persons prefer to be arraigned in Makadara, which, in contrast to Milimani, are perceived to be more lenient in granting bail. (