INTRODUCTION
1. The applicant herein filed the Notice of motion dated 22.1.25 seeking anticipatory bail under Article 159 of the Constitution of Kenya, 2010 the criminal procedure code . The application is based on the annexed affidavit of Gervas Ayieko Ayieko and the grounds that: -
a. the applicant is facing imminent arrest on a false allegation obtaining by false pretenses .
b. There is nothing illegal about thew land sale transaction between the applicant and the complaint .
c. the applicant is ready and willing to abide by such terms of anticipatory bail as the court may deem fit to grant .
d. The applicants efforts to obtain bond/ bail from police pending investigations have provided futile have proved futile .
e. The applicant is ready to continue to co-operate with police if granted bond .
f. The police are determined to arrest the applicant and have severally looked for him at his place of work .
g. The applicants family have been subjected to undue harassment , intimidation and suffering over the intended arrest.
h. The applicant is a civil servant employed by Kenya marine Fisheries Research stationed at Kegati Kisii and thus available any time he is required for investigations .
i. Bond is a constitutional right and also available under the criminal procedure code .
j. The circumstances warrant the applicant to be granted anticipatory bail.
k. The interest of justice demand that the applicant be granted anticipatory bail.
2. The supporting affidavit of the applicant reiterates the ground on the face of the application .
3. The application was not opposed.
DETERMINATION
4. Upon consideration of the Application, I find that only issue for determination is whether the Applicant is entitled to grant of an anticipatory bond/bail.
5. The principles that guide the court in considering whether to grant anticipatory bail were ably set out by Rawal and Kimaru, JJ in Samuel Muciri W’Njuguna v. Republic [2004] eKLR, to wit:
“While it is true that the right to anticipatory bail or bail pending arrest is not specifically provided for by statute we are of the humble opinion that the right to anticipatory bail or bail pending arrest is envisaged by section 84(1) of the Constitution. The applicant’s ordeal at the hands of the police is an instance where a right to anticipatory bail accrues. When a person is constantly subjected to harassment or is in fear of being unjustifiably arrested, he has a right to recourse to the protection of the Constitution through the High Court where its enforcement is provided for by the Constitution. It would indeed be a tragedy, if the Constitution did not provide a remedy to a citizen whose fundamental rights have been breached. In the instant case, the applicant has had dreadful experiences at the hands of the police where he has been severally incarcerated for no apparent or justifiable reason. For the respondent to say that a person in such a situation should do nothing because there is no law providing for such a person to seek a remedy in court will completely be the antithesis of the spirit of the Constitution which provides for the protection of fundamental rights and freedoms in the Bill of Rights.
6. The principle was reiterated in the case of in the case of Mandiki Luyeye vs Republic [2015] eKLR, where Ngenye J held as follows:-
“Similar sentiments were observed in the case of Eric Mailu vs Republic and 2 others Nairobi Misc. Cr. 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 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 to fundamental right must be real and demonstrable. An Applicant must demonstrate the breach by acts and facts constituting the alleged breach.”
7. In Republic vs Chief Magistrate Milimani & another Ex-parte Tusker Mattresses Ltd & 3 others [2013] eKLR GV Odunga J (as he then was) expressed the following:
“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. That this court has power to quash impugned warrants cannot be doubted. However, it is upon the ex parte applicant to satisfy the court that the discretion given to the police to investigate allegations of commission of a criminal offence ought to be interfered with. It is not enough to simply inform the court that the intended trial is bound to fail or that the complaints constitute both criminal offence as well civil liability. 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... The warrants were issued to enable the allegations be investigated. Whether or not the investigations will unearth material which will be a basis upon which a decision will be made to commence prosecution of the ex parte applicants or any of them is a matter which is premature at this stage to dwell on.”
8. This court is a custodian of the rights or citizens and it has the responsibility to balance the rights of citizens and at the same time allow the state organs institutions carry out their mandate as provided by law in line with the principle of separation of powers . The courts will always intervene where there is violation or threat to violation of the rights. ( see Kamau v Republic (Miscellaneous Criminal Application 1 of 2022) [2022] KEHC 16496 (KLR) (15 December 2022) (Ruling)). In this instant Application, the applicant alleges that the complainant obtained from her a sum of Kshs. 160,000 by false pretense in a land sale transaction
9. The applicant averred that he has pleaded with investigating officer to admit him to police bail pending investigations being a civil servant and he promised to co-operate with police in the investigations but he has been adamant . Also that police have gone to his home and work place severally to look for him and has caused harassment and intimidation to his family .The offence he says he is being investigated for is bailable and reasonable bond is generally available to any accused person under Article 49 (1) (h) of the constitution unless there is a compelling reason not to grant the same . It is not denied that the applicant is a civil servant and he has promised to co-operate with the police in the investigations . If the applicant is arrested and not granted bond his rights are likely to be violated may be violated and his job jeopardized .
10. In the upshot the application has met the threshold for grant of anticipatory bail admitted to anticipatory bail in the sum of Kshs. 50, 000/= pending investigations of the matter before the police .
11. The applicant to co-operate with the police and respond to any summons for interrogation .
12. Orders accordingly. File is closed.
T.A ODERA
JUDGE
6.3.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF :
THE APPLICANT
MR KOIMA FOR THE STATE
CA -OIGO
1. The applicant herein filed the Notice of motion dated 22.1.25 seeking anticipatory bail under Article 159 of the Constitution of Kenya, 2010 the criminal procedure code . The application is based on the annexed affidavit of Gervas Ayieko Ayieko and the grounds that: -
a. the applicant is facing imminent arrest on a false allegation obtaining by false pretenses .
b. There is nothing illegal about thew land sale transaction between the applicant and the complaint .
c. the applicant is ready and willing to abide by such terms of anticipatory bail as the court may deem fit to grant .
d. The applicants efforts to obtain bond/ bail from police pending investigations have provided futile have proved futile .
e. The applicant is ready to continue to co-operate with police if granted bond .
f. The police are determined to arrest the applicant and have severally looked for him at his place of work .
g. The applicants family have been subjected to undue harassment , intimidation and suffering over the intended arrest.
h. The applicant is a civil servant employed by Kenya marine Fisheries Research stationed at Kegati Kisii and thus available any time he is required for investigations .
i. Bond is a constitutional right and also available under the criminal procedure code .
j. The circumstances warrant the applicant to be granted anticipatory bail.
k. The interest of justice demand that the applicant be granted anticipatory bail.
2. The supporting affidavit of the applicant reiterates the ground on the face of the application .
3. The application was not opposed.
DETERMINATION
4. Upon consideration of the Application, I find that only issue for determination is whether the Applicant is entitled to grant of an anticipatory bond/bail.
5. The principles that guide the court in considering whether to grant anticipatory bail were ably set out by Rawal and Kimaru, JJ in Samuel Muciri W’Njuguna v. Republic [2004] eKLR, to wit:
“While it is true that the right to anticipatory bail or bail pending arrest is not specifically provided for by statute we are of the humble opinion that the right to anticipatory bail or bail pending arrest is envisaged by section 84(1) of the Constitution. The applicant’s ordeal at the hands of the police is an instance where a right to anticipatory bail accrues. When a person is constantly subjected to harassment or is in fear of being unjustifiably arrested, he has a right to recourse to the protection of the Constitution through the High Court where its enforcement is provided for by the Constitution. It would indeed be a tragedy, if the Constitution did not provide a remedy to a citizen whose fundamental rights have been breached. In the instant case, the applicant has had dreadful experiences at the hands of the police where he has been severally incarcerated for no apparent or justifiable reason. For the respondent to say that a person in such a situation should do nothing because there is no law providing for such a person to seek a remedy in court will completely be the antithesis of the spirit of the Constitution which provides for the protection of fundamental rights and freedoms in the Bill of Rights.
6. The principle was reiterated in the case of in the case of Mandiki Luyeye vs Republic [2015] eKLR, where Ngenye J held as follows:-
“Similar sentiments were observed in the case of Eric Mailu vs Republic and 2 others Nairobi Misc. Cr. 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 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 to fundamental right must be real and demonstrable. An Applicant must demonstrate the breach by acts and facts constituting the alleged breach.”
7. In Republic vs Chief Magistrate Milimani & another Ex-parte Tusker Mattresses Ltd & 3 others [2013] eKLR GV Odunga J (as he then was) expressed the following:
“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. That this court has power to quash impugned warrants cannot be doubted. However, it is upon the ex parte applicant to satisfy the court that the discretion given to the police to investigate allegations of commission of a criminal offence ought to be interfered with. It is not enough to simply inform the court that the intended trial is bound to fail or that the complaints constitute both criminal offence as well civil liability. 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... The warrants were issued to enable the allegations be investigated. Whether or not the investigations will unearth material which will be a basis upon which a decision will be made to commence prosecution of the ex parte applicants or any of them is a matter which is premature at this stage to dwell on.”
8. This court is a custodian of the rights or citizens and it has the responsibility to balance the rights of citizens and at the same time allow the state organs institutions carry out their mandate as provided by law in line with the principle of separation of powers . The courts will always intervene where there is violation or threat to violation of the rights. ( see Kamau v Republic (Miscellaneous Criminal Application 1 of 2022) [2022] KEHC 16496 (KLR) (15 December 2022) (Ruling)). In this instant Application, the applicant alleges that the complainant obtained from her a sum of Kshs. 160,000 by false pretense in a land sale transaction
9. The applicant averred that he has pleaded with investigating officer to admit him to police bail pending investigations being a civil servant and he promised to co-operate with police in the investigations but he has been adamant . Also that police have gone to his home and work place severally to look for him and has caused harassment and intimidation to his family .The offence he says he is being investigated for is bailable and reasonable bond is generally available to any accused person under Article 49 (1) (h) of the constitution unless there is a compelling reason not to grant the same . It is not denied that the applicant is a civil servant and he has promised to co-operate with the police in the investigations . If the applicant is arrested and not granted bond his rights are likely to be violated may be violated and his job jeopardized .
10. In the upshot the application has met the threshold for grant of anticipatory bail admitted to anticipatory bail in the sum of Kshs. 50, 000/= pending investigations of the matter before the police .
11. The applicant to co-operate with the police and respond to any summons for interrogation .
12. Orders accordingly. File is closed.
T.A ODERA
JUDGE
6.3.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF :
THE APPLICANT
MR KOIMA FOR THE STATE
CA -OIGO