ETORE JOHN AKARAN AND patrick mwendwa AND 1 Others VS ODPP AND director of criminal investigation

Introduction

1. This Honourable Court is called to determine the Notice of Motion application dated 16^th December, 2024 brought under the dint of to Article 10, 21(1), 22(1), 23,28,29,47(2), 49(1), 159(2), and 244(C) of the Constitution of Kenya, 2010, Section 123 of the Criminal Procedure Code and other enabling Provisions of The Law by the Applicant.
2. The Applicants sought the following orders:-
3. Spent
4. THAT this Honourable Court be pleased to grant the Applicants anticipatory bail pending arrest or charge on such terms the court may deem fit to impose for such time as this Honourable Court shall direct and or until such time a formal charge, if any, may be filed against them in a court of competent jurisdiction pending the hearing and determination of this Application inter partes.
5. THAT this 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 inter partes in the matters.
6. THAT this Honourable Court be pleased to grant the Applicants anticipatory bail pending arrest or charge on such terms the court may deem fit to impose for such time as this Honourable Court shall direct and or until such time a formal charge, if any, may be filed against them in a court of competent jurisdiction pending the hearing and determination of this Application.
7. THAT this 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 in the matters.
8. THAT this Honourable Court be pleased to issue any other orders and directions as it may deem fit and just.
9. THAT the costs of this application be provided for.
10. The Application is supported by the 1^st applicant’s affidavit wherein he avers that:-
11. The Applicants herein are apprehensive of being arrested on directives of the 2^nd respondent vide a court order dated 13^th November 2024 that there was sufficient evidence to charges upon the applicants to him on herein on grounds that the 1^st Applicant received money through false pretense in which no constant evidence has been shown by the Respondents.
12. The 2^nd Respondent had never specified with clarity to the Applicants on the reasons for his need of attendance at the Directorate.
13. The Applicants have not deliberately declined or ignored to honour the summons nor summoned by the 1^st Respondent whosever.
14. The continued malevolent actions by the Respondents are unjustified and a threat to the rights and fundamental freedoms of the Applicants.
15. Although the Applicants fear for their lives, they are willing to cooperate with the respondents if need be.
16. Unless he aforementioned orders are granted, the Applicant stood to suffer great prejudice.

Analysis and Determination

1. Anticipatory  bail is a special relief in criminal cases and the core, character and the scope of anticipatory bail may be problematic requiring a careful stitching of the relief. In Kenya, there are no specific provisions on anticipatory bail save for the constitutional provisions under the Bill of Rights. The Constitution of Kenya 2010 provides for;

a) Bail of arrested person under Article 49(1)(h)

b) Appropriate relief under Article 23(3) for breach of the Bill of Rights

1. Anticipatory bail is a direction issued by the court to release a person on bail, even before the person is arrested. In other jurisdictions, anticipatory bail is granted to a person who has been arrested by the court. Anticipatory bail is, therefore, a special relief in criminal law. However, the core, character and scope of anticipatory bail may be problematic, requiring clear and careful stitching of the relief. In jurisdictions where anticipatory bail is practiced, it is expressly provided for, and its nature, core and effect is regulated in the statute and regulations or rules thereunder. For example, the Indian criminal law has a specific provision for anticipatory bail under Section 438(1) of the Criminal Procedure Code. It is also expressly provided that anticipatory bail in India is issued only by the Sessions Court and High Court. This kind of hemming of anticipatory bail becomes necessary due to the very nature of anticipatory bail to become potentially inhibitive of investigative mandate of the police and other investigative organs of the state.
2. A case is, therefore, made out that, prescription of the core, content and scope of anticipatory bail or whatever other order granted in that genre should be properly set out in law or in the jurisprudence creating or adopting it.
3. I am aware that arguments have been made that anticipatory bail could be and have been tailored and granted by the court as an appropriate relief under article 23(3) of the Constitution. Thus, anticipatory bail is a creature of judicial craft in Kenya - but as the order is granted by different courts so does the relief of anticipatory bail remain at large; increasing the danger of having a relief without specific genre, character, scope, core and content.
4. Under Article 29 of the Constitution, 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 just cause. The Applicant herein contended that the police and the interested party had continued to intimidate, harass and install fear in the Applicant issuing threats of arresting him. The Applicant is now a man under siege living under immense fear with his security under threat.
5. In dealing with an application of this nature, it is the constitutional duty of this court to go to the lengths and breadths of the constitution to protect the rights and fundamental freedoms of Kenyans where need be, but it should be alive to its obligation not to curtail the other organs of state from carrying out their constitutional mandate. It is a very delicate balance which this court is expected to carry out.
6. In the case of Republic – Versus - Chief Magistrate Milimani & Another Exparte Tusker Mattresses Limited & 3 Others [2013] eKLR the court stated as follows;

“However, before going to the merits of the instant application it is important to note that what is sought to be prohibited is the continuation of investigation other than a criminal trial. The court must in such circumstances take care not to trespass into the jurisdiction of the investigators or the court which may eventually be called upon to determine the issues hence the court ought not to make determinations which may affect the investigations or the yet to be conducted trial…., the High Court ought not to interfere with the investigative process conferred upon the police or the Director of Public Prosecutions unless cogent reasons are given for doing so.”

1. In the case of Mandiki Luyeye – Versus -  Republic [2015] eKLR, the court held thus;

“Similar sentiments were observed in the case of Eric Mailu Vs Republic and 2 Others Misc. Criminal Application No. 24 of 2013 in which it was emphasized that anticipatory bail would only issue when there was serious breach of a citizen’s rights by organs of the State.

Accordingly, it is salient that anticipatory bail is aimed at giving remedy for breach of infringement of fundamental constitutional rights in conformity with what the constitution envisages constitutes protection of fundamental rights and freedoms of a citizen. It cannot issue where an applicant labours under apprehension founded on unsubstantiated claims. The fear of breach of fundamental right must demonstrate the breach by acts and facts constituting the alleged breach”.

1. The Applicants argue that the continued malevolent actions by the Respondents are unjustified and a threat to the rights and fundamental freedoms of the Applicants. Although the Applicants fears for their lives, they are willing to cooperate with the respondents if need be.

Conclusion and Disposition

1. In my considered view, there is no evidence of the violation of the applicants right to freedom under Article 29 of the Constitution. The Respondents had followed procedure and had conducted the investigations with consideration to the Constitutional rights of the Applicants.
2. On basis of the above, the court finds the Notice of Motion application dated 16^th December, 2024 is found to lack merit and the same is hereby dismissed.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …27th….…………DAY OF ……………February…………..…….., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Cherop……………State Counsel;

…………………No appearance by the……………………….…Applicants