1. Before me is a Notice of Motion application dated 7th December 2021. Vide the said application, the Applicant seeks the following orders:-
(1) Spent;
(2) That this honourable Court be pleased to admit the Applicant to reasonable bail terms pending his arrest and or charge by the Respondents;
(3) That in the alternative and without prejudice to prayer 2 above, that this honourable Court be pleased to admit the Applicant to bond on his execution of a personal bond pending his arrest and or charge by the Respondents;
(4) That this honourable Court be pleased to issue an order restraining the Respondents, their agents, officers and or persons acting under their directions, departments and or offices from arresting, harassing, torturing or otherwise interfering with the Applicant’s rights and freedoms pending the institution of criminal proceedings against him;
(5) That this honourable Court be pleased to appoint a date when the Applicant can appear before the Respondents or before the Honourable Court for such purposes as may be directed;
(6) That cost of this application be provided for; and
(7) That this honourable Court be pleased to grant any other or further orders as it may deem fit to grant.
2. The application is supported by an affidavit annexed thereto sworn on 7th March 2024. It is also based on the grounds in the body of the said Motion.
3. The Applicant avers that he sold a piece of land situated at Zawadi Estate in Shanzu Ward to one Justine Chilumo for Kes.200,000.00 in 2020. He purchased the said parcel of land from one Saidi Omar in 2016. He stated that in February 2024, Justine Chilumo complained that third parties claimed ownership of the property and demanded a refund of the money he had paid him. The Applicant further stated that as he was negotiating with Mr. Chilumo, he learned that he had filed a criminal complaint against him at Bamburi Police Station, which was recorded under OB No 31/13/2/2024.
4. The Applicant avers that he attempted to refund the money on 7th March 2024 by forwarding Kes.150,000.00 to Mr Chilumo through Mpesa. However, the Complainant thwarted the attempt. The Complainant declined to receive the payment and intimated that he would teach the Applicant a lesson.
5. The Applicant was apprehensive that as the matter was reported at Bamburi Police Station, Mjambere and Kiembeni Police Stations had no business pursuing him. He was apprehensive that his right to liberty and bail or bond may be infringed arbitrarily if the orders sought were not granted. The Applicant thus prayed that orders be issued forthwith.
6. The application is opposed by the 2nd Respondent. The 2nd Respondent, through Robinson Kipkosgei Cheruiyot, filed a Replying Affidavit sworn on 8th April 2024.
7. Mr Cheruiyot deposed that Justine Chilumo caused and or made a report and or complaint booked vide OB NO 31/13/02/2024 regarding an alleged encroachment and or trespass on his property at Shanzu-Utange area in Mombasa. Upon investigations, it was noticed that the land was under development. The officers of the Police Service carried out investigations which established that there were grounds to charge the Applicant with the offence of obtaining money by false pretenses contrary to section 313 of the Penal Code or in the alternative, forcible detainer contrary to section 303 of the Penal Code.
8. Mr. Cheruiyot deposed that the Applicant was summoned by telephone to record his statement and assist in investigations. Despite being summoned, the Applicant declined to honour the lawful summons. It was stated that by refusing to honour the lawful summons, the Applicant acted unlawfully contrary to section 52(2) of the National Police Service Act.
9. He adverted that the investigations were ongoing and that no decision had been made to apprehend, charge and prosecute any suspects before a Court of competent jurisdiction. It was urged that the Application was thus premature, ill-advised and bad in law since it preempts an administrative action without any formal final decision which can be linked to any enforceable right. The 2nd Respondent thus prayed that the application be dismissed.
10. The matter came before me on 16th April 2024. On that date, I issued directions to the effect that the application would be canvassed by way of Written Submissions.
11. None of the parties filed Written Submissions. That notwithstanding, I will consider whether the orders sought should be issued.
12. Article 29 of the Constitution of Kenya provides that:-
“Every person has the right to freedom and security of the person, which includes the right not to be
(a) Deprived of freedom arbitrarily or without a just cause.”
13. It is settled that anticipatory bait may be issued where there is a serious breach of a citizen’s rights by state organs.
14. The Court (per R Nyakundi, J) in Abdulatif & another vs Inspector General of Police & 2 others (MISC Criminal Application No E007 of 2023 [2023] KEHC 18143 (KLR) 5th June, 2023 (ruling) stated as follows:-
“15. Accordingly it is salient that anticipatory bail is aimed at giving remedy for breach or infringement of fundamental constitutional rights in conformity with what the constitution envisages constitutes protection of fundamental rights and freedoms of citizen. It cannot issue where an applicant labours under apprehension founded on unsubstantiated claims. The fear of breach of fundamental right must be demonstrated, the breach by facts and facts constituting the alleged breach.
16.It follows that in order for a Court to grant anticipatory bail an applicant must prove that there is infringement of constitutional rights…”
15. Has there been a breach of Constitutional rights in this matter? The 2nd Respondent, through his officers, summoned the Applicant so that he could record a statement. The Applicant provided no proof that the 2nd Respondent had already decided to charge him.
16. Taking into account the fact that a complaint had been filed, it appears to me that the officers of the 2nd Respondent acted lawfully in summoning the Applicant. It would have been a dereliction of duty for the 2nd Respondent not to carry out investigations in view of the fact that there was a possible commission of offences of obtaining money by false pretenses and forcible detaining contrary to the applicable provisions of the Penal Code.
17. By undertaking investigations, the police acted within their authority under Article 245 of the Constitution and sections 8, 8A and 35 of the National Police Service Act.
18. Therefore, it does appear to me that the 2nd Respondent acted lawfully and cannot be faulted. The Applicant acted with undue haste and filed this application prematurely. In the circumstances, it is fair and just that the application be dismissed.
19. Costs follow the event. I award the costs of the application to the 2nd Respondent.
20. Orders accordingly.
Dated and signed this 21st day of June 2024 at Mombasa. Delivered virtually via Microsoft TEAMS.
(1) Spent;
(2) That this honourable Court be pleased to admit the Applicant to reasonable bail terms pending his arrest and or charge by the Respondents;
(3) That in the alternative and without prejudice to prayer 2 above, that this honourable Court be pleased to admit the Applicant to bond on his execution of a personal bond pending his arrest and or charge by the Respondents;
(4) That this honourable Court be pleased to issue an order restraining the Respondents, their agents, officers and or persons acting under their directions, departments and or offices from arresting, harassing, torturing or otherwise interfering with the Applicant’s rights and freedoms pending the institution of criminal proceedings against him;
(5) That this honourable Court be pleased to appoint a date when the Applicant can appear before the Respondents or before the Honourable Court for such purposes as may be directed;
(6) That cost of this application be provided for; and
(7) That this honourable Court be pleased to grant any other or further orders as it may deem fit to grant.
2. The application is supported by an affidavit annexed thereto sworn on 7th March 2024. It is also based on the grounds in the body of the said Motion.
3. The Applicant avers that he sold a piece of land situated at Zawadi Estate in Shanzu Ward to one Justine Chilumo for Kes.200,000.00 in 2020. He purchased the said parcel of land from one Saidi Omar in 2016. He stated that in February 2024, Justine Chilumo complained that third parties claimed ownership of the property and demanded a refund of the money he had paid him. The Applicant further stated that as he was negotiating with Mr. Chilumo, he learned that he had filed a criminal complaint against him at Bamburi Police Station, which was recorded under OB No 31/13/2/2024.
4. The Applicant avers that he attempted to refund the money on 7th March 2024 by forwarding Kes.150,000.00 to Mr Chilumo through Mpesa. However, the Complainant thwarted the attempt. The Complainant declined to receive the payment and intimated that he would teach the Applicant a lesson.
5. The Applicant was apprehensive that as the matter was reported at Bamburi Police Station, Mjambere and Kiembeni Police Stations had no business pursuing him. He was apprehensive that his right to liberty and bail or bond may be infringed arbitrarily if the orders sought were not granted. The Applicant thus prayed that orders be issued forthwith.
6. The application is opposed by the 2nd Respondent. The 2nd Respondent, through Robinson Kipkosgei Cheruiyot, filed a Replying Affidavit sworn on 8th April 2024.
7. Mr Cheruiyot deposed that Justine Chilumo caused and or made a report and or complaint booked vide OB NO 31/13/02/2024 regarding an alleged encroachment and or trespass on his property at Shanzu-Utange area in Mombasa. Upon investigations, it was noticed that the land was under development. The officers of the Police Service carried out investigations which established that there were grounds to charge the Applicant with the offence of obtaining money by false pretenses contrary to section 313 of the Penal Code or in the alternative, forcible detainer contrary to section 303 of the Penal Code.
8. Mr. Cheruiyot deposed that the Applicant was summoned by telephone to record his statement and assist in investigations. Despite being summoned, the Applicant declined to honour the lawful summons. It was stated that by refusing to honour the lawful summons, the Applicant acted unlawfully contrary to section 52(2) of the National Police Service Act.
9. He adverted that the investigations were ongoing and that no decision had been made to apprehend, charge and prosecute any suspects before a Court of competent jurisdiction. It was urged that the Application was thus premature, ill-advised and bad in law since it preempts an administrative action without any formal final decision which can be linked to any enforceable right. The 2nd Respondent thus prayed that the application be dismissed.
10. The matter came before me on 16th April 2024. On that date, I issued directions to the effect that the application would be canvassed by way of Written Submissions.
11. None of the parties filed Written Submissions. That notwithstanding, I will consider whether the orders sought should be issued.
12. Article 29 of the Constitution of Kenya provides that:-
“Every person has the right to freedom and security of the person, which includes the right not to be
(a) Deprived of freedom arbitrarily or without a just cause.”
13. It is settled that anticipatory bait may be issued where there is a serious breach of a citizen’s rights by state organs.
14. The Court (per R Nyakundi, J) in Abdulatif & another vs Inspector General of Police & 2 others (MISC Criminal Application No E007 of 2023 [2023] KEHC 18143 (KLR) 5th June, 2023 (ruling) stated as follows:-
“15. Accordingly it is salient that anticipatory bail is aimed at giving remedy for breach or infringement of fundamental constitutional rights in conformity with what the constitution envisages constitutes protection of fundamental rights and freedoms of citizen. It cannot issue where an applicant labours under apprehension founded on unsubstantiated claims. The fear of breach of fundamental right must be demonstrated, the breach by facts and facts constituting the alleged breach.
16.It follows that in order for a Court to grant anticipatory bail an applicant must prove that there is infringement of constitutional rights…”
15. Has there been a breach of Constitutional rights in this matter? The 2nd Respondent, through his officers, summoned the Applicant so that he could record a statement. The Applicant provided no proof that the 2nd Respondent had already decided to charge him.
16. Taking into account the fact that a complaint had been filed, it appears to me that the officers of the 2nd Respondent acted lawfully in summoning the Applicant. It would have been a dereliction of duty for the 2nd Respondent not to carry out investigations in view of the fact that there was a possible commission of offences of obtaining money by false pretenses and forcible detaining contrary to the applicable provisions of the Penal Code.
17. By undertaking investigations, the police acted within their authority under Article 245 of the Constitution and sections 8, 8A and 35 of the National Police Service Act.
18. Therefore, it does appear to me that the 2nd Respondent acted lawfully and cannot be faulted. The Applicant acted with undue haste and filed this application prematurely. In the circumstances, it is fair and just that the application be dismissed.
19. Costs follow the event. I award the costs of the application to the 2nd Respondent.
20. Orders accordingly.
Dated and signed this 21st day of June 2024 at Mombasa. Delivered virtually via Microsoft TEAMS.