GONA KALAMA MWANGÓMBE AND PETERSON GONA VS ODPP AND DIRECTOR OF CRIMINAL INVESTIGATION

Introduction

1. This Honourable Court is called to determine the application dated 29^th November, 2024 brought by dint of  Articles 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 Applicant 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 him 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 Applicant herein pending the hearing and determination of this Application inter partes in the matters.
6. THAT this Honourable Court be pleased to grant the Applicant 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 him 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 Applicant 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 states that:-
11. The Applicant herein is apprehensive of being arrested on directives of the 2^nd Respondent vide a letter dated 5^th November 2024 that there is sufficient grounds therein arising from a family succession dispute which is still in court , that succession cause no E030 OF 2020 In the Estate of SHADRACK CHARO MWANG'OMBE (DECEASED).
12. That the 2^nd Respondent has never specific  (SIC) with clarity to the Applicant on the reasons for his need of attendance at the Directorate and the related succession cause no E030 OF 2020.
13. The Applicants had not deliberately declined or ignored to honor the summons issued to them by the 1^st Respondent.
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 fears for their lives, they are willing to cooperate with the respondents if need be after the matter pending in Kilifi Law Court Succession Cause No. E030 of 2020 was finalized.
16. Unless he aforementioned orders are granted, the Applicant stood to suffer great prejudice.
17. The Office of the Director of Public Prosecution opposed the Application through statement of grounds of opposition dated 16^th December, 2024 on the following grounds:-
    1. The decision to charge the Applicant herein for the offence of intermeddling with the deceased property contrary to Section 42 of the Law of Succession Act was made  pursuant to article 157 of the Constitution of Kenya which offence is criminal in nature and constitute criminal culpability.
    2. The charge sheet was properly admitted and registered at Kilifi Law Courts as Criminal Case No. E969 of 2024 whereupon the Applicants herein as the Accused persons were not present for the plea taking and subsequently summons were sought and issued to them requiring their attendance for plea taking on the 9^th December, 2024.
    3. The summons requiring attendance for plea taking were duly and properly sought, issued, extracted and served upon the applicants herein with no malice and or abuse of power and the same was not intended for harassment.
18. The Applicant filed  further submissions pointing out that the charge sheet is defective as the offence of intermeddling is set out under section 42 and not section   45 of The law of Succession Act .   They  also stated that they appeared in court on the day that they were required to attend and finally they are challenging the arrest and charging  and not the investigations.

ANTICIPATORY BAIL

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   other 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 providdes 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”.

THE RESPECTIVE ARGUMENTS

1. The Applicant contended that the 2^nd Respondent has never specific  with clarity to the Applicant (sic) on the reasons for his need of attendance at the Directorate and the related succession cause no E 030 OF 2020. While the 2^nd Respondent has contended that the decision to charge the Applicant herein for the offence of intermeddling with the deceased property contrary to Section 42 of the Law of Succession Act was made pursuant to article 157 of the Constitution of Kenya which offence is criminal in nature and constitute criminal culpability. That the charge sheet was properly admitted and registered at Kilifi Law Courts as Criminal Case No. E969 of 2024 whereupon the Applicants herein as the Accused persons were not present for the plea taking and subsequently summons were sought and issued to them requiring their attendance for plea taking on the 9^th December, 2024.
2. The 2^nd Respondent further contended that there was no cogent reason that has been shown as to why the bail pending arrest or charge should be granted. The applicants have further failed to prove the prejudice they may suffer, the threat or contravention of their rights as a result of the investigations already undertaken by the 1^st Respondent and the subsequent issuance of the summons requiring attendance for plea taking thus merely feeling inconvenienced is not sufficient ground to grant the relief sought herein.
3. The Applicants on the other hand argue that the continued malevolent actions by the Respondents are unjustified and a threat to the rights and fundamental freedoms of the Applicants. THAT although the Applicants fear for their lives, they are willing to participate in the proceedings but this is after the matter pending in Kilifi Law Court Succession Cause No. E030 of 2020 is finalized.       Subsequently they added the issue of the defect in the charge sheet.

Applying the Test.

16. The applicants have applied for anticipatory bail as well as conservatory order. The application has been brought as an application for redress for breach or threat of breach of Rights and fundamental freedom of the applicant.

17. Article 29 of the Constitution of Kenya provides as follows:-“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;

b.detained without trial except under a state of emergency in which case the detention is subject to Article 58;

c.subjected to any form of violence from either public or private sources;

d.subjected to torture in any manner, whether physical or psychological

;e.subjected to corporal punishment in a cruel, inhuman or degrading manner.”

18. The applicants have claimed violation and threatened violation of their rights and fundamental freedom by the Respondents. The violation is said to be in the fact that the matter which is the subject of investigations is also the subject of a succession  case pending in court which charge sheet they say is defective for siting the wrong provision of the act.

19.They seek orders to stop arrest and charging in a court of law on the basis of matters forming part of the succession  case.

20. Impeding criminal investigation or charging of an individual in a court law must be on cogent and constitutionally-sound reasons. For instance, as was stated in the case of W’Njuguna vs Republic (2004) eKLR such orders are 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.”

21. In the case of Mandiki Luyeye vs Republic [2015] eKLR, 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 labors 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.”

22. In the case of Richard Mahkanu vs Republic [2014] eKLR, the court held the firm view that orders for anticipatory bail or bond must not be sought with the intention of pre-empting the outcome of investigations- a position that was also held in the case of Kevin Okore Otieno vs Republic (2013) eKLR.

24.Any relief by whatever name called say, anticipatory bail, requires courts to ensure that interference with the functions of other bodies and institutions established by law; statute, or the Constitution of Kenya, is only on cogent and robust reasons. Merely feeling inconvenienced by investigations is not sufficient reason for relief. Proof of violation, infringement, threat, or contravention of a person’s right under the Constitution of Kenya is required.

25.The Applicants herein are contending that they have not been given specific reasons why they should honour the police summons.

26.The state  on the other hand has stated that they have investigated   a claim of intermeddling with the estate of the deceased  and are satisfied that an offence has been committed. This offence is still in our statutes and investigations towards it may be carried out. EXCEPT; the investigations are based on reasonable suspicion and grounds to believe that a crime has been committed, and is conducted in accordance with the law and regulations governing investigations, and employing only tools, methods and techniques which are provided and permitted in law; and which do not violate the Constitution and the Bill of Rights. Adherence thereto, avoids objections on constitutional front such as right to human dignity (art. 28), freedom and security of person (art. 29) right to privacy (art. 31), to mention but a few.

27.The exercise of the functions of investigation  and prosecution should not be oppressive or in abuse of the process and purpose of criminal investigation to bring suspects to book. Oppression may take many and different forms depending on the circumstances of each case. But, may include, use of much or excessively intrusive tools, methods and techniques not permitted or authorized in law or which by their nature completely routs the protection of fundamental freedoms and rights in the Bill of Rights such as torture or threat to torture methods. Abuse include; to procure or force a settlement of a civil claim or debt or personal scores; and in some cases, to cover police failures or merely to please or sooth a curious public or political audience.

28.Notably also, according to section 193 A of The criminal procedure code, concurrent criminal and civil proceedings is permitted. Specifically, the section provides that: -Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.

29..Therefore the police may investigate a matter which may also be substantially or directly in issue in a pending succession proceedings. Save, it bears repeating that, care should be taken that they are satisfied that an offence has been committed, and that the investigation is not to settle a score or civil debt between the parties. Short of the threshold, the investigation is liable to impeachment by the court on the basis of abuse of power or function, and the police may be liable for violation of right or malicious prosecution.

In this case it has not even been alleged that the prosecution is mounted to aid proof of matters in the succession  or the hands of the applicants  are being forcedby the sword of the criminal proceedings to compromise the succession cause which are the key red flags to look at as was states by our APEX Court in CYRUS JIRONGO AND SOY DEVELPERS LTD AND OTHERS.

THE REDRESS

30.A successful case for redress of violation of rights or fundamental freedoms should spell out and prove the violation or threat of violation of right or fundamental freedoms. Other than making mere allegations, and state their apprehension ,  the applicants did not provide proof that the police or the prosecution side  are using their investigation and prosecutorial  powers to coerce settlement or  they are acting in any other malicious way.

31. In fact in this case both the police and the prosecution must be commended for acting above board and in a very mature and professional manner.  They conducted their  investigations in a very civil manner and when they required the applicant they summoned him.  That is a great show of professionality and mature courtesy on the part of the investigators.

32. The complaint that the Applicants were not given the full details or specifics holds no water.  They  ought to have honoured the police summons and gone to seek the clarity and details  that they require.

33. Further when the prosecution side made the decision to charge, they again moved to court and applied for summons to be  issued  for the Applicants’ attendance to court.  Again this was a very civil and dignified approach to an arraignment in court. We have often heard of extreme hard handedness  and brutality of the police or the uniquely Kenyan  approach of effecting arrests close to the weekend to ensure that the suspect spend some time behind bars. Before the constitutional  and procedural amendments introducing bond for all offences and the now famously known 24 hour rule, suspects would be detained endlessly.  We even hand suspects for capital offenders remaining in custody for 3 to 5 years.     The       Bill  of Rights and the vibrant enforcement by the courts brought an end to that dark era.  It is these strict constitutional checks that often, a malicious or else how moticated investigator will arrest someone on a  Thursday or Friday in what had come to be known colloquially as the ‘kamata kamata’ Fridays.       

This case is a breath of fresh air and a sign of light at the end of the tunnel.We are moving  ,  from those dark dark days.  The Applicants can not complain of any of any ill treatment.

34.Even in respect to the said defect in the charge sheet,  I find  no reason to halt the proceedings.  The law makers envisaged that errors may occur and that is why we have amendment clauses such as section 204 of our Criminal Procedure Code.  The trial courts are also well trained and  can reject a defective charge sheet or give any other direction to ensure that the ends of justice have been met.  I need not add that the Defence has an opportunity to raise the issues in their cross examination and defence.

DETERMINATION

34.Accordingly, having carefully considered the grounds both in support and against the Application , the affidavit  evidence and the case law that was relied upon by the parties herein, this court does not find any iota of evidence that  the Applicants’ fundamental rights have been breached or denied or that there is a threat of them being infringed, contravened or violated. Investigations and prosecutions   are legal processes aimed at fact-finding of the commission of a crime in our justice system and do not, per se amount to an infringement on the rights or fundamental freedoms of the person under investigation. As long as investigations are carried out in accordance with the law and rules, the processes thereto must be allowed to run their course for proper administration of justice. It does not matter that the Applicant believes in their innocence or thinks that the decision to charge was not what they would have arrived at.  The court will only intervene where there is a clear breach or threat to  the rights of an individual  or where there are obvious elements of malice or ill will.  None of that has been demonstrated in this case.  I repeat that indeed the Respondents are to be commended and encouraged to handle all their matters in this professional and civil manner. If they do so, then we will see a reduction of this nature of Applications in court.

35.In the upshot, The Notice of Motion application dated 29^th November 2024  fails and is rejected in so far as it seeks to stop investigations, charging  or continued prosecution in court in respect of matters forming part of the succession case.

However, the applicants shall not be arrested except they shall, when required, appear before the investigators, if there are further or pending investigations,  on days to be agreed upon between the hours of 9.00AM and 4.00PM.  They should also  honour any court summons  if  the charges have been or are to be preferred.  If there is a pending warrant of arrest by the court, the same is suspended pending the Appearance  of the Applicants at the next mention date before the trial court.  Of course if the Applicants absent themselves in future without good cause, a warrant of arrest may issue. In other words this is not a blanket or unlimited waiver of compliance.  I am just extending the civility that the Respondents had shown in the first instance.

36. No orders as to costs given the nature of these proceedings.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS 23rd.…………DAY OF …………January……………..…….., 2025

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. MAUREEN     : Court Assistant;

MR NGIRI                : State Counsel;

MR. MAKASEMBO FOR THE Applicants