Introduction
1. The Applicant, JOHN RAMBO MAROKO, moved this Court by a Notice of Motion dated 1st July 2025 seeking orders of anticipatory bail/bond pending arrest and conservatory orders restraining the Respondents from arresting, detaining, harassing or charging him in connection with alleged allegations of murder.
2. The Application is premised on Articles 22, 23, 49, 50 and 165(6) & (7) of the Constitution, Sections 123, 123A and 124 of the Criminal Procedure Code, and is supported by the Applicant’s affidavit sworn on 1st July 2025, together with written submissions.
3. The Respondents opposed the Application through Replying Affidavits filed in E046 of 2025, wherein they contend that investigations are ongoing, deny malice, and assert that granting anticipatory bail would interfere with investigations into a serious offence.
Issues for Determination
4. Having considered the pleadings, affidavits and submissions by all parties, the Court identifies the following issues for determination:
a) Whether this Court has jurisdiction to grant anticipatory bail;
b) Whether the Applicant has demonstrated a reasonable apprehension of violation of his constitutional rights;
c) Whether the orders sought would unjustifiably interfere with investigations;
d) What orders commend themselves in the circumstances.
Jurisdiction
5. Articles 22 and 23 of the Constitution vest this Court with jurisdiction to grant appropriate reliefs for the enforcement of fundamental rights and freedoms.
6. Further, Article 165(6) and (7) grants the High Court supervisory jurisdiction over all persons and bodies exercising public power, including investigative and prosecutorial agencies.
7. Section 123 of the Criminal Procedure Code empowers the Court to grant bail at any stage of criminal proceedings, including prior to arrest.
8. The Court therefore finds that it is properly seized of jurisdiction to entertain the Application.
Whether the Applicant Has Demonstrated a Reasonable Apprehension
9. Anticipatory bail is a constitutional remedy meant to prevent arbitrary, oppressive or malicious arrest, and to protect the right to liberty where there is a real threat of abuse of power.
10. The Applicant’s affidavit discloses that:
• He has received credible information that his arrest is imminent;
• He has never been summoned, questioned or informed of any complaint against him;
• He has a fixed abode and is willing to cooperate with investigations.
11. The Replying Affidavits in E046 of 2025 confirm that investigations are ongoing. However, they do not demonstrate that:
• The Applicant was summoned and failed to attend;
• He is a flight risk;
• He has attempted to interfere with investigations or witnesses.
12. The Respondents assert that the offence under investigation is serious. While the Court appreciates the gravity of allegations of murder, seriousness of an offence alone is not a constitutional justification for arrest. Arrest must meet the constitutional threshold of necessity, reasonableness and proportionality.
Whether Anticipatory Bail Will Interfere with Investigations
13. The Respondents argue that anticipatory bail would hinder investigations. The Court does not agree.
14. Anticipatory bail does not bar investigations; it merely regulates the manner of arrest to ensure constitutional compliance.
15. The Applicant has expressly undertaken, on oath, to cooperate with investigators and to present himself whenever lawfully required. No evidence has been placed before the Court to show that liberty on bond would prejudice investigations.
16. Investigative agencies retain full authority to summon, question, and upon completion of investigations, lawfully charge the Applicant.
Constitutional Balance
17. This Court is enjoined to strike a delicate balance between:
• The State’s mandate to investigate crime; and
• The citizen’s right to liberty, dignity and due process.
18. That balance is achieved by allowing investigations to proceed unhindered, while preventing the use of arrest as a punitive or intimidating tool where less restrictive means are available.
Determination
19. The Court is satisfied that the Applicant has demonstrated a real, imminent and reasonable apprehension that his constitutional rights may be violated through an arbitrary arrest.
20. The Respondents have not demonstrated compelling reasons necessitating arrest at this stage.
21. In the circumstances, the Application is merited.
Orders
22. Accordingly, the Court makes the following orders:
a) A conservatory order is hereby issued restraining the Respondents, their agents or officers from arresting, detaining, harassing or charging the Applicant otherwise than in strict compliance with the Constitution and the law.
b) The Applicant, JOHN RAMBO MAROKO, is hereby admitted to anticipatory bail in the sum of Kenya Shillings Two Hundred Thousand (Kshs. 200,000/=) with one surety of a similar amount, OR a cash bail of Kshs. 100,000/=, pending any intended arrest or arraignment.
c) The Applicant shall avail himself to the Respondents for investigations whenever lawfully required.
d) In default of compliance with the above conditions, the orders herein shall automatically lapse.
1. The Applicant, JOHN RAMBO MAROKO, moved this Court by a Notice of Motion dated 1st July 2025 seeking orders of anticipatory bail/bond pending arrest and conservatory orders restraining the Respondents from arresting, detaining, harassing or charging him in connection with alleged allegations of murder.
2. The Application is premised on Articles 22, 23, 49, 50 and 165(6) & (7) of the Constitution, Sections 123, 123A and 124 of the Criminal Procedure Code, and is supported by the Applicant’s affidavit sworn on 1st July 2025, together with written submissions.
3. The Respondents opposed the Application through Replying Affidavits filed in E046 of 2025, wherein they contend that investigations are ongoing, deny malice, and assert that granting anticipatory bail would interfere with investigations into a serious offence.
Issues for Determination
4. Having considered the pleadings, affidavits and submissions by all parties, the Court identifies the following issues for determination:
a) Whether this Court has jurisdiction to grant anticipatory bail;
b) Whether the Applicant has demonstrated a reasonable apprehension of violation of his constitutional rights;
c) Whether the orders sought would unjustifiably interfere with investigations;
d) What orders commend themselves in the circumstances.
Jurisdiction
5. Articles 22 and 23 of the Constitution vest this Court with jurisdiction to grant appropriate reliefs for the enforcement of fundamental rights and freedoms.
6. Further, Article 165(6) and (7) grants the High Court supervisory jurisdiction over all persons and bodies exercising public power, including investigative and prosecutorial agencies.
7. Section 123 of the Criminal Procedure Code empowers the Court to grant bail at any stage of criminal proceedings, including prior to arrest.
8. The Court therefore finds that it is properly seized of jurisdiction to entertain the Application.
Whether the Applicant Has Demonstrated a Reasonable Apprehension
9. Anticipatory bail is a constitutional remedy meant to prevent arbitrary, oppressive or malicious arrest, and to protect the right to liberty where there is a real threat of abuse of power.
10. The Applicant’s affidavit discloses that:
• He has received credible information that his arrest is imminent;
• He has never been summoned, questioned or informed of any complaint against him;
• He has a fixed abode and is willing to cooperate with investigations.
11. The Replying Affidavits in E046 of 2025 confirm that investigations are ongoing. However, they do not demonstrate that:
• The Applicant was summoned and failed to attend;
• He is a flight risk;
• He has attempted to interfere with investigations or witnesses.
12. The Respondents assert that the offence under investigation is serious. While the Court appreciates the gravity of allegations of murder, seriousness of an offence alone is not a constitutional justification for arrest. Arrest must meet the constitutional threshold of necessity, reasonableness and proportionality.
Whether Anticipatory Bail Will Interfere with Investigations
13. The Respondents argue that anticipatory bail would hinder investigations. The Court does not agree.
14. Anticipatory bail does not bar investigations; it merely regulates the manner of arrest to ensure constitutional compliance.
15. The Applicant has expressly undertaken, on oath, to cooperate with investigators and to present himself whenever lawfully required. No evidence has been placed before the Court to show that liberty on bond would prejudice investigations.
16. Investigative agencies retain full authority to summon, question, and upon completion of investigations, lawfully charge the Applicant.
Constitutional Balance
17. This Court is enjoined to strike a delicate balance between:
• The State’s mandate to investigate crime; and
• The citizen’s right to liberty, dignity and due process.
18. That balance is achieved by allowing investigations to proceed unhindered, while preventing the use of arrest as a punitive or intimidating tool where less restrictive means are available.
Determination
19. The Court is satisfied that the Applicant has demonstrated a real, imminent and reasonable apprehension that his constitutional rights may be violated through an arbitrary arrest.
20. The Respondents have not demonstrated compelling reasons necessitating arrest at this stage.
21. In the circumstances, the Application is merited.
Orders
22. Accordingly, the Court makes the following orders:
a) A conservatory order is hereby issued restraining the Respondents, their agents or officers from arresting, detaining, harassing or charging the Applicant otherwise than in strict compliance with the Constitution and the law.
b) The Applicant, JOHN RAMBO MAROKO, is hereby admitted to anticipatory bail in the sum of Kenya Shillings Two Hundred Thousand (Kshs. 200,000/=) with one surety of a similar amount, OR a cash bail of Kshs. 100,000/=, pending any intended arrest or arraignment.
c) The Applicant shall avail himself to the Respondents for investigations whenever lawfully required.
d) In default of compliance with the above conditions, the orders herein shall automatically lapse.