Don’t Jail Sureties – Make Them Pay
By Dickson Jere
Two men had signed up as sureties for Police Bond for an accused who was facing criminal charges in the Subordinate Court. When the matter came up for hearing – several times – the accused person failed to show up. The sureties had no idea of the whereabouts of the accused person.
The Magistrate decided to turn the tap on the sureties.
“I will remand you as you are in contempt of Court for failure to bring the accused to court for the past five months,” the Magistrate said.
“I will remand the sureties. I will adjourn to 27th September, 2025 and order you to pay K30,000 and you will be in custody for 30 days,” the Magistrate said, and sent them to prison despite the two having paid the “recognizance” fees for bail.
Following the jailing of the two – the High Court – heard of this case. The Judge In-charge, exercising his powers of supervision of subordinate Courts, called the file for review.
The High Court Judge explained that the procedure used by Magistrate was wrong as the two were not given an opportunity to explain why they failed to locate the accused person.
“The mere non-attendance of an accused person at the date set for trial, does not automatically attract absolute liability against the surety; breach or dereliction of duty must be established,” he explained.
“And more importantly, the two sureties having respectively paid the recognisances, to avoid imprisonment, the Magistrate was divested of jurisdiction to detain the sureties for 30 days,” the Judge said.
He then set aside the order by the Magistrate and ordered the immediate release of the sureties from prison.
“The neglect or failure on the part of the Magistrate to make appropriate reasoned determination rendered the forfeiture and detention incurably bad,” he added.
Further, he explained that the Magistrate was also wrong to jail the sureties for Contempt of Court, which is different issue altogether from what was in Court.
“This was oppressive and prejudicial to the sureties,” he said.
Case citation – The People v Maluba Maambo (HPR/04/2025) and Judgment rendered last week 2nd September 2025.
Lecture notes;
1. This is very important decision as it will help many people who have gone to jail as they were not aware of this legal position. When you are a surety for bail or bond with the ‘recognizance’ amount, you are only expected to pay that amount when the accused has disappeared. You only go to jail if you fail to pay.
2. The case also explains the misconception that failure to produce the accused is contempt of court. The court clearly has distinguished the two and explained that the sureties must be given an opportunity to explain themselves before being condemned. And that is not contempt of Court.
3. We also need to explore alternative options for sentencing than imprisonment for these cases. We need to decongest the prisons.