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JudgmentDanson Kaba AND Julius Kitheka VS State Law Office AND Ethics and Anti-Corruption Commission AND 1 Others6 min read

Danson Kaba AND Julius Kitheka VS State Law Office AND Ethics and Anti-Corruption Commission AND 1 Others

High Court at Mombasa High Court · · Wendy Micheni

INTRODUCTION

  1. This RULING  is in respect to the Notice of Motion dated 3rd December 2024. The Supporting Affidavit was sworn on the same day by the 2nd Applicant, Julius Kitheka.
  2. The prayers sought were/are:

1) SPENT

2) THAT the Honourable Court be pleased to grant the applicants anticipatory bail pending arrest or charge on such terms the Court may deem fit to impose.

3) THAT That the Honourable Court be pleased to issue a conservatory order restraining the respondents, their servants, agents, junior officers and or anybody from effecting and/or anybody from arresting, harassing or otherwise however interfering with the Applicants herein pending the hearing and determination of this application/petition in the matters related to Liaison Group vis a vis Kenya Maritime Authority.

4) THAT this Honourable Court do grant such other or further Orders as may be necessary for the ends of Justice to be met.

5) THAT the costs of this application be provided for.

  1. BRIEF FACTS OF THE CASE
  2. The applicant in support of the application highlighted the background as follows;
  3. That the 1st Respondent obtained an exparte Search Order against the Applicants in Mombasa Magistrates Court, Misc. Criminal; Application 772 of 2024 (The Ethics and Anti-Corruption Commission vs. Julius Kitheka) and Misc. Criminal; Application 773 of 2024 (The Ethics and Anti-Corruption Commission vs. Danson Kaba) citing loss of public funds amounting to Ksh 40 million for the provision of Medical Insurance Cover, Group Life Assurance Cover and General Insurance Cover for KMA Staff and Board Members.
  4. That the Applicants complied with the Search Order by handing over their electronic devices and any/all related documents and by giving statements with the 1st Respondent.
  5. That DESPITE NOT formally charging or arresting the Applicants, the 1st Respondent, in an effort to castigate the Applicants in the court of public opinion and defeat the ends of justice, made public remarks through various media stations and platforms, alleging the Applicants guilt and impropriety. (Paragraph 3, 4 & 12 of the Supporting Affidavit).
  6. That  By the 1st Respondent’s action, the Applicants’ right to be presumed innocent is/was violated.
  7. That  Fearing a further disregard of the Applicants fundamental rights, the Applicants sought for the prayers before this Honourable Court.
  8. Interim Orders were issued on 4th December 2024 .

GROUNDS OF OPPOSITION

  1. The Application is opposed by the 2nd and 3rd Respondents by way of Grounds of       Opposition dated 9th December 2023.
  2. They stated that the Applicants without sufficient proof and evidence, have alleged that   they are about to be arrested.
  3. That the Applicant’s pleadings do not disclose any legal or justifiable claim to the extent that no cause of action lies as against the 2nd and 3rd Defendants.
  4. The Applicants have not proved and/or demonstrated any prejudice where the alleged investigations are yet to be concluded if any and as such, no determination has been   made to apprehend, charge or prosecute any suspects before a court of competent jurisdiction.
  5. The Respondents for the further  contend that:
  6. a) The Police are legally mandated to investigate complaints made by members of the public.

b) Police officers are required to investigate the complaints and make arrests where there is probable cause for the same.

c) The Office of Director of Public Prosecution is mandated to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed.

  1. That this instant Application is premature, ill-advised and bad in law since it pre-empts an administrative  action without any formal/final decision which can be linked to any enforceable right.
  2. That the 3rd and 2nd Respondents are independent offices established under the Constitution .
  3. They cited the cases of SUN and Another vs ODPP &7 OTHERS;IPOA [2023] KEHC(KLR) and Abdulatiff and Another vs IG [2023] KEHC

JURISDICTION

  1. Jurisdiction is everything and a Court cannot move without it. Article 22 and Article 165(3)(b) of the Constitution gives this Court the power to hear and determine applications for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Right
  2. In  The High Court in Miscellaneous Civil Application No. 179 Of 2012 Republic V Chief Magistrate Milimani & Another Ex-Parte Tusker Mattresses Ltd & 3 Others [2013] eKLR  it was  stated  that ‘The High Court ought not to interfere with the investigative powers conferred upon the police or the Director of Public Prosecution UNLESS COGENT REASONS ARE GIVEN FOR DOING SO.
  3. In Koros & 2 others v Director of Public Prosecutions & another (Criminal Application E012 of 2024) [2024] KEHC 9574 (KLR) (23 July 2024) (Judgment) it was stated that  ‘Therefore, the standard of granting anticipatory bail as the appropriate relief under article 23(3) of the Constitution, should be proof of breach or threat of breach of the Bill of Rights in the measure stated in the case of W’NJUGUNA VS REPUBLIC (2004) eKLR (although it is a pre-2010 Constitution decision), that anticipatory bail should be granted only: - “…when there are circumstances of serious breaches of a citizen’s rights by an organ of the state which is supposed to protect the same.”’
  4. The Applicants argued that   the Respondents would be in violation of the Applicants’ following rights and freedoms; Article 27: Breach of the Right to Equal Protection of the Law by alleging illegality/impropriety before a Court of Law makes that determination. Article 39: Breach of the right to Fair Administrative Action by alleging illegality/impropriety before a Court of Law makes that determination. Article 50: Breach of a fair hearing by not presuming innocence until the contrary is proven.
  5. . The facts of the subject matter is that there was NO ALLEGED LOSS OF PUBLIC FUNDS, Liaison Group (Insurance Brokers) Ltd emerged as the lowest bidder and the majority if not all of the other 4 bidders quoting higher prices. The alleged Ksh 40 million loss is actually the collective insurance premiums quoted for the various insurance covers by Liaison Group (Insurance Brokers) Ltd.
  6. As pointed out above the High court will not interfere  with the lawful mandate of any other state organ unless there is proof of or threat of such a breach  of the Applicants bill of rights.  The Respondents argue that the application is pre mature as there is no arrest.  As pointed above, one need not wait for the breach to occur.  A sufficient threat is adequate.
  7. In this case ,  the respondents had gone a head and published the issue  widely as shown on the annexures in the supporting affidavit.
  8. If the investigations are incomplete  and there is yet to be made a decision on whether to charge or otherwise, this begs the question- why the insinuations?  This is what I described earlier in the related Applications as ‘headline chasing prosecution’ which  usually does not go very far.
  9. I am satisfied that there was a genuine breach and  threat of breach of the APPLICANT’S RIGHTS to the presumption of innocence, and proper investigations and  fair hearing .
  10. Accordingly  the Application FOR BOND  has merit and is allowed on the following terms.
  11. Each of the Applicants to deposit a cash bail of KSH 200,000, by close of business on  Tuesday 18th March 2025.
  12. The order is not a blanket and permanent bar to all investigations and prosecution and if there are to be any investigations they must be lawful and civil where the Respondents strictly follow all the rules as to searches and summons.
  13. In particular if the investigators desire to get any information from the applicants , they must summon each of them and not arrest   either and  the summons should be between the hours of 9.00AM and 4.00 PM and the Applicants should  be accompanied by their advocates and  /or legal representatives.
  14. Should a decision to charge be arrived at, the Applicants should be summoned to attend court.
  15. Any investigations related to the issues raised in this Application should be finalized within the next 6 months.
  16. NO orders as to costs.

It is so ordered.

  1. Dated,  signed and delivered virtually  this 14th  day of March 2025.

Wendy  kagendo

JUDGE

DELIVERED IN THE PRESENCE OF ;

MR MUNENE FOR THE APPLICANTS

MS CHEROP FOR THE 2ND RESPONDENT

BEBORA COURT ASSISTANT

    Danson Kaba AND Julius Kitheka VS State Law Office AND Ethics and Anti-Corruption Commission AND 1 Others Danson Kaba AND Julius Kitheka VS State Law Office AND Ethics and Anti-Corruption Commission AND 1 Others