1. The Applicants herein filed a Chamber Summons application dated 23/1/2026 seeking the following reliefs:
i) Spent.
ii) That the Applicants be granted anticipatory bail pending arrest or charge.
iii) That the costs be provided for.
2. The application is supported by the grounds set out thereunder and by the supporting affidavit of one Kennedy Otieno Owiti sworn on eve date. The Applicants gravamen is inter alia; that the High Court Practice and Procedure Vacation Rules require a formal application be filed for leave during recess period; that the Applicant seek for anticipatory bail pending arrest; that the Applicants are apprehensive that they might be arrested by officers from the DCI at any particular time and are now living in fear as they might get harmed or even killed as can be seen vide the murder charge in HCCR E001/2026 at Siaya High Court; that if the application is not heard during the High Court Recess period the Applicants will be prejudiced; that this court has jurisdiction to grant the orders sought; that the Applicants are not in good health and are currently undergoing medication.
3. None of the Respondents filed responses. However, the Applicants and the 1 st Respondent agreed to canvass the application by way of oral submissions.
4. Mr. Ochanyo, learned counsel for the Applicant submitted inter alia; that upon this court releasing the Applicants in HCCR E001/2026 they were picked up from the court cells even before release orders had been issued and driven by DCI officers to various police stations; t hat the Applicants were seized from the court cells even without the supervision of court prosecutor; that the Applicants were later charged before Bondo Chief Magistrates Court vide Cr. No. E028/2026; that the actions of the Respondents are prepared to continue with their excesses even at the alter of due judicial process.
5. Mr. Muntui for the 1 st Respondent submitted inter alia; that the anticipatory bail has been overtaken by events since the Applicants have been arrested and charged vide HCCR E001/2026 and that the Applicants were granted bond; that anticipatory bail cannot be issued once a suspect has been charged; that the continuous prosecution of the application amounts to an abuse of court process as they are seeking parallel reliefs while aware that the criminal case is still pending determination and therefore urged the court to dismiss the application.
6. I have considered the application and the oral submissions presented by counsels for the Applicants and 1 st Respondent. It is not in dispute that the Applicants herein were charged before this court vide Siaya HCCR E001/2026 with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It is also not in dispute that this court on 23/1/2026 granted the Applicants bond pending trial and that one of the conditions imposed was an order directing them to report to the DCI Bondo once every Monday of the week until investigations are finalized or until further orders of the court. It is also not in dispute that some of the Applicants have since been charged before Bondo CM’s Court vide Cr. No. E028/2026. It is also not in dispute that the parties herein are set to address the court on the 17/2/2026 on the issue of whether the reporting order should be lifted. I find the issue for determination is whether the application has merit.
7. It is noted that the Applicants have predicated their application under the Constitution and Criminal Procedure Code. The Applicants have contended that they are likely to be arrested and killed if they are not granted anticipatory bail. On the other hand, the 1 st Respondent maintains that the Applicants’ fears are unfounded in view of the fact that they have already been arrested, charged and released on bond vide Siaya HCCR E001/ 2026 and Bondo CM’s CR E028/2026. It seems the Applicants appear to be relying on provisions of Article 49 (1) (h) of the Constitution which provides that an arrested person has the right to be released on bond/bail on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released. It is not in dispute that the right of anticipatory bail is not provided for by statute. However, any court is required to consider the question whether an Applicant’s liberty under Article 29 of the Constitution will be compromised. The reasons behind the quest for anticipatory bail is to enable individuals to avoid detention. Those individuals must demonstrate real apprehension of arrest with a likelihood of their liberty being threatened. However, looking at the circumstances of the Applicants and as noted in the foregoing submissions by counsels as well as what obtains on the record, the Applicants herein have already been charged and granted bond vide the criminal cases aforesaid. It is trite that anticipatory bail cannot be issued once a suspect has been charged. It is instructive that this court vide HCCRC E001/2026 granted the Applicants bond on the 23/1/2026 and further issued orders of reporting to the DCI Bondo once every Monday of the week and that the Applicants have been complying with it and that the court is yet to be appraised regarding the issue whether the DCI still requires the Applicants to report for further investigations. It is also instructive that the Applicants have been granted reasonable bond by this court and that they are enjoying their liberty and that the issue of whether or not the reporting order will continue to be in force will be determined on the 17 th February 2026 when the matter comes up for mention. Since the Applicants have maintained that their lives are in danger and are apprehensive that they will be arrested and detained, I find it is incumbent upon the Applicants to present credible evidence that their liberty is likely to be compromised if anticipatory bail is not granted. Upon this court granting bond on 23/1/2026, it ordered the Applicants to report to the DCI Bondo for further investigations. It was therefore within the powers of the police (DCI) to prefer new charges if need be and that the Applicants would be presented to court and be made aware of the said new charges and that the court will determine any issues regarding bail. It would appear to me that the Applicants’ application is meant to circumvent the reporting order and to forestall any intended arrest or detention. It seems the Applicants want to have their cake and eat it as it were in that upon being released on bond and being directed to report to the DCI for further investigations, seek to tie the hands of the investigation agencies from proceeding with the investigations. What the Applicants are saying is that even though they have been released on bond and directed to report to the DCI, the DCI should not interfere with their liberties as regards new charges. It is noted that the Applicants have not presented any iota of evidence to the effect that new charges are in the pipeline and that they stand to be arrested and charged. All the Applicants have stated to the court is that upon this court delivering a ruling on bail on 23/1/2026, they were seized from the court cells and whisked away to various police stations without according them the opportunity to have their sureties processed. The Applicants have also confirmed that upon being seized from the court cells, they were later charged with other offences in Bondo CM’s court vide Criminal Case E028/2026 wherein they were granted bond. Hence, as at present, the Applicants are enjoying their liberty. As regards the issue of how they were seized from the court cells on 23/1/2026, the Applicants are at liberty to raise the same in the relevant file and that the court would proceed to issue the appropriate directions and orders. It was therefore improper for the Applicants to move the court for anticipatory bail when there are no circumstances warranting the same. I find the fears of the Applicants to be unfounded as they have not presented sufficient evidence in that regard. The Applicants should take note of the fact that the police should not be hindered in carrying out their duties in investigating crimes unless there are cogent reasons to the contrary. It would appear that the Applicants want a situation where in the event the police come up with other charges upon reporting as directed, they should not be arrested and or detained. I find such a state of affairs is akin to denying the police the right to investigate, arrest and charge suspects. It is my considered view that the present application has been overtaken by events and should be deemed as spent in that the Applicants have already been charged before this court and in Bondo CM’s Court and that both courts have duly released them on bond pending trial. Indeed, it is trite that anticipatory bail cannot be issued once a suspect has been charged. I find the present application to be an abuse of the court process as the same seeks parallel reliefs while there is an existence criminal charges still pending and which leads to multiplicity of proceedings.
8. In view of the foregoing observations, it is my finding that the Applicant’s application dated 23/1/2026 lacks merit. The same is dismissed with no order as to costs.
Dated and delivered at Siaya this 17 th day of February 2026.
D. KEMEI
JUDGE
In the presence of:
Ochanyo/Onsongo……for Applicants.
Muntui……………..for 1 st Respondent.
N/A……………….2 nd Respondent.
N/A …………………………….3 rd Respondent.
N/A ……………………….4 th Respondent.
N/A …..………………….5 th Respondent.
Maureen/Kimaiyo…...Court Assistant.
SIAYA HCCR MISC. APPLICATION NO. E005 OF 2026 RULING 2 | Page
i) Spent.
ii) That the Applicants be granted anticipatory bail pending arrest or charge.
iii) That the costs be provided for.
2. The application is supported by the grounds set out thereunder and by the supporting affidavit of one Kennedy Otieno Owiti sworn on eve date. The Applicants gravamen is inter alia; that the High Court Practice and Procedure Vacation Rules require a formal application be filed for leave during recess period; that the Applicant seek for anticipatory bail pending arrest; that the Applicants are apprehensive that they might be arrested by officers from the DCI at any particular time and are now living in fear as they might get harmed or even killed as can be seen vide the murder charge in HCCR E001/2026 at Siaya High Court; that if the application is not heard during the High Court Recess period the Applicants will be prejudiced; that this court has jurisdiction to grant the orders sought; that the Applicants are not in good health and are currently undergoing medication.
3. None of the Respondents filed responses. However, the Applicants and the 1 st Respondent agreed to canvass the application by way of oral submissions.
4. Mr. Ochanyo, learned counsel for the Applicant submitted inter alia; that upon this court releasing the Applicants in HCCR E001/2026 they were picked up from the court cells even before release orders had been issued and driven by DCI officers to various police stations; t hat the Applicants were seized from the court cells even without the supervision of court prosecutor; that the Applicants were later charged before Bondo Chief Magistrates Court vide Cr. No. E028/2026; that the actions of the Respondents are prepared to continue with their excesses even at the alter of due judicial process.
5. Mr. Muntui for the 1 st Respondent submitted inter alia; that the anticipatory bail has been overtaken by events since the Applicants have been arrested and charged vide HCCR E001/2026 and that the Applicants were granted bond; that anticipatory bail cannot be issued once a suspect has been charged; that the continuous prosecution of the application amounts to an abuse of court process as they are seeking parallel reliefs while aware that the criminal case is still pending determination and therefore urged the court to dismiss the application.
6. I have considered the application and the oral submissions presented by counsels for the Applicants and 1 st Respondent. It is not in dispute that the Applicants herein were charged before this court vide Siaya HCCR E001/2026 with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It is also not in dispute that this court on 23/1/2026 granted the Applicants bond pending trial and that one of the conditions imposed was an order directing them to report to the DCI Bondo once every Monday of the week until investigations are finalized or until further orders of the court. It is also not in dispute that some of the Applicants have since been charged before Bondo CM’s Court vide Cr. No. E028/2026. It is also not in dispute that the parties herein are set to address the court on the 17/2/2026 on the issue of whether the reporting order should be lifted. I find the issue for determination is whether the application has merit.
7. It is noted that the Applicants have predicated their application under the Constitution and Criminal Procedure Code. The Applicants have contended that they are likely to be arrested and killed if they are not granted anticipatory bail. On the other hand, the 1 st Respondent maintains that the Applicants’ fears are unfounded in view of the fact that they have already been arrested, charged and released on bond vide Siaya HCCR E001/ 2026 and Bondo CM’s CR E028/2026. It seems the Applicants appear to be relying on provisions of Article 49 (1) (h) of the Constitution which provides that an arrested person has the right to be released on bond/bail on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released. It is not in dispute that the right of anticipatory bail is not provided for by statute. However, any court is required to consider the question whether an Applicant’s liberty under Article 29 of the Constitution will be compromised. The reasons behind the quest for anticipatory bail is to enable individuals to avoid detention. Those individuals must demonstrate real apprehension of arrest with a likelihood of their liberty being threatened. However, looking at the circumstances of the Applicants and as noted in the foregoing submissions by counsels as well as what obtains on the record, the Applicants herein have already been charged and granted bond vide the criminal cases aforesaid. It is trite that anticipatory bail cannot be issued once a suspect has been charged. It is instructive that this court vide HCCRC E001/2026 granted the Applicants bond on the 23/1/2026 and further issued orders of reporting to the DCI Bondo once every Monday of the week and that the Applicants have been complying with it and that the court is yet to be appraised regarding the issue whether the DCI still requires the Applicants to report for further investigations. It is also instructive that the Applicants have been granted reasonable bond by this court and that they are enjoying their liberty and that the issue of whether or not the reporting order will continue to be in force will be determined on the 17 th February 2026 when the matter comes up for mention. Since the Applicants have maintained that their lives are in danger and are apprehensive that they will be arrested and detained, I find it is incumbent upon the Applicants to present credible evidence that their liberty is likely to be compromised if anticipatory bail is not granted. Upon this court granting bond on 23/1/2026, it ordered the Applicants to report to the DCI Bondo for further investigations. It was therefore within the powers of the police (DCI) to prefer new charges if need be and that the Applicants would be presented to court and be made aware of the said new charges and that the court will determine any issues regarding bail. It would appear to me that the Applicants’ application is meant to circumvent the reporting order and to forestall any intended arrest or detention. It seems the Applicants want to have their cake and eat it as it were in that upon being released on bond and being directed to report to the DCI for further investigations, seek to tie the hands of the investigation agencies from proceeding with the investigations. What the Applicants are saying is that even though they have been released on bond and directed to report to the DCI, the DCI should not interfere with their liberties as regards new charges. It is noted that the Applicants have not presented any iota of evidence to the effect that new charges are in the pipeline and that they stand to be arrested and charged. All the Applicants have stated to the court is that upon this court delivering a ruling on bail on 23/1/2026, they were seized from the court cells and whisked away to various police stations without according them the opportunity to have their sureties processed. The Applicants have also confirmed that upon being seized from the court cells, they were later charged with other offences in Bondo CM’s court vide Criminal Case E028/2026 wherein they were granted bond. Hence, as at present, the Applicants are enjoying their liberty. As regards the issue of how they were seized from the court cells on 23/1/2026, the Applicants are at liberty to raise the same in the relevant file and that the court would proceed to issue the appropriate directions and orders. It was therefore improper for the Applicants to move the court for anticipatory bail when there are no circumstances warranting the same. I find the fears of the Applicants to be unfounded as they have not presented sufficient evidence in that regard. The Applicants should take note of the fact that the police should not be hindered in carrying out their duties in investigating crimes unless there are cogent reasons to the contrary. It would appear that the Applicants want a situation where in the event the police come up with other charges upon reporting as directed, they should not be arrested and or detained. I find such a state of affairs is akin to denying the police the right to investigate, arrest and charge suspects. It is my considered view that the present application has been overtaken by events and should be deemed as spent in that the Applicants have already been charged before this court and in Bondo CM’s Court and that both courts have duly released them on bond pending trial. Indeed, it is trite that anticipatory bail cannot be issued once a suspect has been charged. I find the present application to be an abuse of the court process as the same seeks parallel reliefs while there is an existence criminal charges still pending and which leads to multiplicity of proceedings.
8. In view of the foregoing observations, it is my finding that the Applicant’s application dated 23/1/2026 lacks merit. The same is dismissed with no order as to costs.
Dated and delivered at Siaya this 17 th day of February 2026.
D. KEMEI
JUDGE
In the presence of:
Ochanyo/Onsongo……for Applicants.
Muntui……………..for 1 st Respondent.
N/A……………….2 nd Respondent.
N/A …………………………….3 rd Respondent.
N/A ……………………….4 th Respondent.
N/A …..………………….5 th Respondent.
Maureen/Kimaiyo…...Court Assistant.
SIAYA HCCR MISC. APPLICATION NO. E005 OF 2026 RULING 2 | Page