Not so fast with title deed as surety in court

Be careful before you offer your title deed as security to help a suspect be released on bond, court officers advise.

They warn that one bad decision could see your land auctioned as you watch helplessly, or see you cool your heels in some jail for six months. It could also plunge you into a stressful situation that you could have avoided in the first place.

Nyando resident magistrate Paul Wechuli gives the example of a primary school teacher who now faces the possibility of having her land sold because she stood surety for a suspect facing trial before his court.

“She has travelled up to Uganda in search of the suspect, in vain. For the last two months, she has been spending more time on the road than in the classroom, trying to trace the suspect. The last time she was in court, she pleaded that we give her time to attend to the national examinations before she could resume the search. She knows her property is on the line,” Wechuli says.

The magistrate explains that suspects tend to abscond when it has been declared that they have a case to answer.

“Some of them think that when a court decides that the evidence supplied is enough to sustain a trial, then their fate is sealed. Because the bond terms still hold, they choose not to come back to court.”

The magistrate further explains that absconding is common among suspects on trial for capital offences, which attract death or life sentences.

So, you have been approached to help someone secure their freedom as their case is heard; what should you consider before you give the court your vital document as security?

Kisumu-based criminal lawyer Richard Onsongo advises that a thorough background check of the person facing trial is a must-do.

“Why is it that more than 70 per cent of suspects’ sureties are their relatives? It is because they know them well. Before you commit yourself in court, research deeply about the suspect,” he says.

Wechuli advises that an individual must understand that no transaction pertaining to the property can happen as long as the suspect is being tried.

“A title deed deposited as security for bond has a caveat on it. So, if anything arises that might require you to sell or transfer the property, you can’t do so without the permission of the court. That means you should be ready to wait until the case is finalised,” he says.

“You must know where their home is, who their relatives are and where they are likely to hide. If you lack confidence in the suspect, then you should not commit,” he adds.

Onsongo notes that a person should consider if they can raise the amount of bond in cash, lest they jeopardise their property.

“If a suspect is released on a Sh1 million bond and you offer to be the surety, ask yourself if you can raise that amount when push comes to shove because the alternative will be your land being attached,” he warns.

The sale of land whose title deed is held by a court is, however, the last resort.

Once the accused person absconds, the Criminal Procedure Code says police should be given a warrant to arrest him or her wherever they can be found.

Such a warrant was issued on October 24, 2012 by the then Kisumu senior principal magistrate Ezra Awino.

Moses Nyambok, who was facing the charge of stealing Sh5.2 million when he was a Co-operative Bank employee, sneaked out of court on the day when Nicholas Aroko, his wife’s brother, was planning to withdraw as a surety for a Sh1 million bond.

When his file was called, Nyambok was nowhere to be seen. The magistrate then gave the police permission to track him down.

A similar warrant was issued by Kitale-based High Court judge Joseph Karanja in October last year after Charles Okera, a pastor accused of killing a schoolgirl after she refused to procure an abortion, failed to turn up in court. His surety said that Okera, his nephew, had fled to Uganda. He is still being sought.

The law says that if the suspect is not found by police after the set time, then the surety is summoned to court to explain why they should not pay the amount set as bond.

Wechuli says magistrates normally reason with the sureties and give them time to trace the runaway suspects.

“We give as many mentions as possible to ensure the surety has exhausted all avenues of tracing the suspect. Currently, there is a precedent set by High Court judge Ruth Sitati, saying sureties should be given as much time as possible to hunt for the accused.”

He continues: “If it is clear that the suspect won’t be found, then the surety is required to pay the amount that was fixed as bond.”

Mr Onsongo explains that if the surety can’t pay, then they face the option of being sent to civil jail or having their property auctioned to recover the suspect’s bond.

“You either face jail or have your property auctioned but not both. The auctioneer is usually under instructions to sell at a price not lower than the bond price. Any surplus is returned to the surety after deducting the costs of the auction,” he said.

Releasing suspects on bond is a constitutional right and is only withheld when the state proves that the accused are likely to disappear or to interfere with witnesses in the case.

“The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive,” says Section 123 of the Criminal Procedure Code.

Anyone who wishes to have an accused person released on bond is required to take an oath before a court.

They should elaborate how they know the surety, and confirm if they understand the gravity of the accused person disappearing, and be warned of the consequences.

Before the court accepts a title deed as a security, it is investigated to ascertain its authenticity, and also valued.

“The court has to ascertain that the value of the land is at least equal to the amount set for bond,” Onsongo says.

Courts are also given the authority to turn down a person who has offered to be a surety for an accused person.

An article at the resource centre of the Kenya Law Reports says that after examination, a court can decide that a person is not suitable to be a surety.

“The prosecutor is also given a chance to cross-examine the surety. This is important since the courts do not have the ability to trace the surety or the accused person in the event that they disappear, but the prosecutor through the police can trace the people,” the article states.

However, there have been concerns that many of the title deeds presented for security are forgeries.

According to the chief executive officer of the Law Society of Kenya Apollo Mboya, a number of documents being held by the courts are questionable.

“I can bet that the Judiciary will be shocked that they have been holding on to some fake and unrealisable security documents in the form of land title deeds, share certificates and motor vehicle logbooks.

“After either the accused has jumped bail or the criminal cases have been concluded and the culprits, knowing very well the documents are not genuine, do not bother to claim the same,” Mboya wrote in a daily paper in October last year.

Mboya argues that the better way of containing the situation is to allow insurance companies to commit themselves in bond payment so that the government is more guaranteed to get money from a truant suspect.