AHMED MOHAMED KARSHE VS ODPP AHMED MOHAMED KARSHE VS ODPP

The applicants approached this court under certificate of urgency by way of a notice of motion expressed to be brought under Articles 28, 29, 47(2), 49, 50,159(2) of the Constitution of Kenya and inherent power and jurisdiction of the Honorable Court and all other enabling provisions of the law dated 10^th September 2024.
The applicants sought the following orders:-
This Application be certified urgent and service be dispensed with and it be heard ex-parte in the 1st instance due to its urgency.
This Honourable Court be pleased to grant the applicant anticipatory bail pending arrest or charge on such terms the court may deem fit to impose,
Pending the hearing and determination of this application, the Honourable Court be pleased to issue a conservatory order restraining the 1st respondent, their servants, juniors, officers and/or anybody whosoever acting under their directions or departments or offices from arresting, harassing or otherwise howsoever interfering with the applicant herein
Any further or other orders or directions which the Honorable Court considers appropriate in the circumstances.
The application was premised on the following grounds:
The Applicants herein are Directors/shareholders of TAREEF ENTERPRISES LIMITED. They are being sought by known police officers from Kayole Police Station with the blessings of the DCIO without reasonable cause. They cannot live peacefully at his own homes or at his business as they are fearing of imminent arrest without any justifiable cause.
Their rights to security of person have been breached severally, and the Applicants is apprehensive of continued breach of their rights by the said police officers who have continuously threatened and intimidated them through the use of mobile phones whereby the incoming calls are all marked as "private number".
On the 5th of February 2024, the Applicants were summoned by the DCIO Embakasi Police Station to record statements regarding their company where they had a business agreement to be supplied road construction materials by another company called TRADENETS CONSTRUCTION COMPANY WORKS LIMITED.
That the DCIO found that the issue was purely a civil issue hence directed the parties to explore civil remedies in the matter.
This led to the directors of the said TRADENETS CONSTRUCTION COMPANY WORKS LIMITED agreeing with the Applicants as directors of TAREEF ENTERPRISES LIMITED to have TAREEF ENTERPRISES LIMITED pay TRADENETS CONSTRUCTION COMPANY WORKS LIMITED through instalments in an agreement dated the 5th of February 2024.
Their right to freedom and security of the person have been violated which includes the right not to be deprived of freedom arbitrarily or without just cause and be subjected to torture in any manner, whether physical or psychological under Article 29 of the Constitution of Kenya.
In support of the application the applicants by way of an affidavit sworn by Ahmed Mohammed Karshe 1^st applicant stated that officers from the DCIO Kayole had been harassing over what they believe is a purely civil matter and that for that reason they urged the court to restrain the officers from any other further acts of harassment or any action that may lead to the violation of their right to liberty.
On 11^th September 2024 the learned Honorable Lady Justice E. Maina granted the applicants a temporary reprieve by issuing order No.3 in the application thereby restraining the officers of the 1^st respondent from interefering with the applicants pending the hearing inter-partes of the application.
The applicants on 23^rd January 2025 appeared before this court and complained that they had been charged in the Lower court in breach of the orders issued by the High Court and as a result this court demanded an explanation from counsel for the respondents who indicated to the court that indeed the applicants were charged but they were never held in custody contrary to any court order. counsel for the prosecution further intimated that they were all released on a cash bail of Ksh. 100,000 each by the Police therefore the complaint of contempt by the applicants was not merited.
This court after hearing both parties delivered a ruling on 13^th February 2025 on the issue of contempt and held that the order by the learned Honorable Lady Justice Maina did not barre the charging of the applicants the parties were directed to return to court on the 13^th February 2025 in order for the applicants to elect whether or not they intended to pursue the application notwithstanding.
On 13^th February 2025 when the matter was called out counsel for the applicants was absent and at the instance of Ms. Ogega counsel for the respondents dismissed the application and ordered that the order of the court be made available to the Director of Public Prosecutions.
Later, Mr. Kanyoko for the applicants appeared and requested the court to mention the matter and he was duly informed that the application had been called out earlier and dismissed.
Counsel went ahead and filed an application under Certificate of urgency seeking to have the matter be reinstated so that the parties could be heard substantively. This court issued directions on the certificate and placed it for mention on 26^th February 2025 for further orders.
On 26^th February 2025, Mr. Kanyoko pleaded with the court to be heard on the application for reinstatement. The court indulged counsel and proceeded to hear him on that aspect alone.
In his submissions Mr.Kanyoko told this court that on the date when the matter was dismissed he had connectivity problems and could not make it in time for the hearing of the matter. He therefore pleaded that this court considers reinstating the application since his non attendance was not deliberate and that the respondents would not suffer any prejudice if the matter is reinstated.
Ms. Ogega opposed the application and argued that since the Notice of motion was filed to primarily seek an order for anticipatory bail there would be no justification to reinstate the same since the applicants are already a cash bail of Kshs. 100,000 granted to them by officers of the 1^st respondent. According to Ms. Ogega the application sought to be reinstated would serve no useful purpose since no one intends to arrest the applicants and that all that they should do is to surrender themselves to the jurisdiction of the Lower court for trial.
Following the arguments by counsel for both parties this court upon perusal of the Notice of Motion that counsel for the applicants seeks to be reinstated finds that if indeed the applicants are already enjoying a cash bail granted by the police then the application of a anticipatory bail would be superfluous and any orders issued by the court would be of no practical effect since the court under the Noticed of Motion was specifically moved to Bar officers of the 1^st and 2^nd respondents from arresting the applicants.
Further, this court recognizes that if at all the applicants were to appear for the taking of plea and in their view the charges preferred against them have no basis in law, nothing bars them from raising the issue in limine before the trial court since that would be a matter touching on the issue of jurisdiction.
The nature of an anticipatory bail application is that it is an application that seeks orders aimed at forestalling arbitrary arrest by law enforcement officers. It cannot be a means of challenging the decision to prosecute unless the applicant is able to demonstrate through actionable evidence that the intended prosecution is predicated on malice and ill will on the part of the 2^nd respondent.
A party who intends to challenge the decision to prosecute can only do so by way of seeking orders of judicial review to quash the decision to prosecute. The application sought to be reinstated has no prayer for any relief in the nature of either certiorari or prohibition.
The application simply sought to restrain officers of the 1^st and 2^nd respondents from arresting, harassing or otherwise interfering with the applicants.
It is important to mention that the application seeking reinstatement filed on 17^th February 2025 has a notice of motion attached to it and the said Notice motion is clearly and innovative improvement of the notice of motion dated 10^th September 2024 in that under prayer 3 the applicants have mischievously sneaked in the word “charging” which was missing in the application sought to be reinstated.
The action of the applicants is calculated to achieve one purpose that is to breathe life into the earlier application which the applicants realize cannot result into an order preventing their prosecution. It is utterly dishonest on the part of the applicants to try and introduce an order that was not previously captured in the application that they seek to reinstate.
An order for reinstatement of a suit that has been dismissed for non-attendance or want of prosecution is an equitable relief and a such a party seeking such a relief must come to equity with clean hands. He who seeks equity must do equity.
The applicants by their ingenious dishonest attempt to introduce an order that was not previously applied for have put themselves at a disadvantage because this court cannot entertain an application that is presented dishonestly and calculated to defeat the course of justice through craft and innovation.
As a result, this court finds that since the applicants are already enjoying a cash bail of Kshs. 100,000 granted to them by the respondents the purpose for which they approached on 10^th September 2024 has been extinguished and that to reinstate the motion dated 10^th September 2024 would be to saddle this court with unnecessary litigation on a matter that is already spend. The calendar of this court cannot permit such wasteful use of precious and limited judicial time. The applicants application dated 13^th February 2025 is therefore dismissed with no orders as to costs.
The applicants are hereby directed to immediately submit themselves to the jurisdiction of the Chief Magistrate for trial.
It is so ordered.