'
The applicant by way of a Notice of Motion dated 16 th October 2023 expressed to be brought under Articles 10, 19, 20, 21, 23, 28, 29, 31, 47, 48, 49, 50, 60 (1), 84, 157, 159, 165, 285 & 259 of the Constitution of Kenya, 2010, & Sections 123(3) and 124 of the Criminal procedure code cap 75 laws of Kenya moved this court for ORDERS:
1. THAT the present application be certified urgent and the same be heard ex-parte in the 1st instance for Issuance of interim orders ( spent ).
2. THAT this Honourable Court be pleased to grant the Applicant Anticipatory Bail or Bail, for any Bailable offence(s) to in order to prevent the 1st, 2nd and 3rd Respondents from arresting, detaining and prosecuting the Applicant.
3. THAT this Honourable Court be pleased to issue appropriate Orders prohibiting the 1st, 2nd and 3rd Respondents from detaining, and/or arresting the Applicant on her failure to supply the information and/or evidence demanded by the National Police Service Officer attached to the 1st Respondent so as to sustain a charge of money laundering and other related matters.
4. THAT, the Applicant has fear and apprehension that the said Police Offer attached to the 1st Respondent is planning to arrest her going by the several incessant phone calls; the undue pressure and intimidation exerted on her by the said officer who is demanding for evidence.
5. THAT, the Applicant has been subjected to harassment and intimidation from the said officer attached to the 1st Respondent who is constantly threatening the Applicant with arrest, despite the Applicant''s assurance that she has got no information relating to the subject investigation.
6. THAT, the Respondent has ignored the Applicant''s protests that she has no information to give and/or surrender for the cause of investigation by the 1st Respondent.
3. The application is premised on the following grounds:-
i. THAT, the Applicant is a Kenyan Citizen.
ii). THAT, a Police Officer with the National Police Service attached to the 1st Respondent has been coercing the Applicant to allegedly surrender information and/or evidence which she is not in a position to; and in the process; the 1st Respondent the Agency is pursuing the Applicant to incriminate herself.
iii). THAT, the said Police Officer is pursuing the Applicant to surrender information pertaining to her personal status in society, her lifestyle, personal interests, business activities, and sources of her earnings, inter-alia.
iv). THAT, the said Officer contended that he was conducting investigations concerning the applicant on the strength of a Duplicate Criminal Investigation File, from Nairobi Area, pertaining to Nairobi Chief Magistrate''s Court (Milimani) Criminal Case No. 1109 of 2022, The Republic -vs- the Applicant which matter was pending for hearing; and in particular the hearing was scheduled on 26th November, 2023.
Vi) THAT, the said Police Officer threatened that he would have the applicant charged again over the said matter.
vii). THAT, despite the Applicant appearing before the said officer with her two lawyers; the Officer maintained that the Applicant must supply the evidence demanded for.
viii). THAT, the Applicant is apprehensive that she will be kept in custody for longer than the period required as it has happened to other people arrested in connection with alleged offences.
4. In support of the application the applicant deposed thus;-
‘’ 1. THAT, I am a female adult of sound mind thus capable to make and swear this affidavit in support of my application to prevent my arrest and subsequent prosecution by the Respondents for an undisclosed charge of Money Laundering.
2. THAT, I am self employed and as a single Parent, I run affairs with discretion in clear observance of our Kenyan Laws.
3. THAT on or about the 25th August, 2023, I was served with a Requisition compelling my attendance at the Asset Recovery Agency Offices, by one Alfred Choso Musalia, a Police Officer, working under the National Police Service, but otherwise attached to the said Agency.
4. THAT, in the said Requisition the said Police Officer stated that he was making inquiries into an alleged offence of Money Laundering Contrary to Section 3(a), (b) as read with Section 16(1), (a) of the proceeds of crime and Anti-Money Laundering Act No. 9 of 2009; and that "he had reason to believe that I have information which will assist the said officer with his Investigations. A copy of the said Summons/Requisition is attached herewith marked ''MNM1''.
5. THAT, there is an apparent case of malice towards me on account of the fact the National Police Service is embroiled with me in a civil case matter pitting my organization; Wilson Mutumba Women Group and the National Police Service over the ownership of a Land Parcel L.R. NO. 209/14582 at South C, Nairobi pending at the Nairobi High Court Environment and Land Division Case No. 2028 of 2007; wherein I am the 4th Plaintiff. Attached herewith are confirmation details regarding the said matters, marked ''MNM2''.
6. THAT, in the said land matter The National Police Service officers have been accused of illegally occupying the organization''s land parcel, and this scenario has generated enmity and hatred towards the applicant and the other members of the group.
7. THAT, I am also a party in Nairobi High Court Petition No. 40 of 2015 where the Inspector-General of Police has been sued by several petitioners, I occupying position three in the said petition
8. THAT, the said Requisition lacks clarity as to and date, and the place of
commission of the alleged offence of Money Laundering,
9. THAT, it is my understanding that a proposed charge and/or investigation ought to contain all material particulars so as to sufficiently put me on sufficient notice.
10. THAT, I am technically incapable of supplying information to the Police based on a blanket allegation lacking the year of commission place and amount involved.
11. THAT, I am entitled to be given full notification and/or information; rather than being ambushed.
12. THAT, the said officer has now threatened to arrest me in default of supply of the said information.
13. THAT, I am now under severe threat and intimidation from the said Police Officer, and I am very apprehensive that he will cause my arrest, detention and subsequent prosecution for a matter whose information is not within my personal knowledge.
14. THAT, I am single mother doing my best, my family and the consistent and
incessant calls from the said officer are taking a toll on my fragile health.
15. THAT in the circumstances, I do pray for the grant of the prayers in my Notice of Motion.
16. THAT, unless the prayers herein are granted, the present proceedings will be rendered nugatory and my constitutional rights will be under imminent threat.
17. THAT, I am now living in perpetual fear as the said Officer keeps calling me with threats and intimidation.
18. THATI swear this affidavit in confirmation and support of my application herein.’’
5.The affidavit in support of the application basically summarized the applicants concerns and fears. The applicant sought to persuade this court to find that the actions of the respondents are not in keeping with the law and that her right to liberty is threatened unless this court intervenes.
6. The 1 st respondent through Alfred Musalia an investigator filed an affidavit sworn on 14 th October 2024 and in it acknowledged that there were investigations that were on going against the applicant in relation to alleged fraud.
7. The investigation officer alluded to the existence of a special purpose vehicle known as Wilson Mutumba Women Group linked to the applicant through which unsuspecting members of the public had been swindled money to the tune of Ksh. 4,500,000.
8. The 1 st respondent stated that they were investigating the applicant in connection with the alleged fraud under the Proceeds of Crime and Anti-Money laundering Act.
9. The investigator explained that their summons to compel attendance dated the 25 th August 2023 were issued in line with the law to give the applicant an opportunity under Article 47 of the Constitution before any decision could be made against her.
10. The investigator further maintained that the summons, were issued in recognition of the right to be heard before one is condemned and that the 1 st respondent acted in furtherance of Article 50 of the Constitution.
11. The 1 st respondent denied any attempts to intimidate or harass the applicant and insisted that they were simply discharging their statutory mandate.
12. The 1 st respondent urged this court to dismiss the application and find that there is no evidence of harassment that has been presented in support of the application.
13. The rest of the respondents did not file any responses and as such the court shall proceed and determine the application based on the material presented before it.
ANALYSIS AND DETERMINATION
14. The applicant seeks an order for anticipatory citing the fact that she is under investigations and therefore she is apprehensive that the respondents are bent on making her surrender information that may be prejudicial to her and that may lead to self- incrimination.
15. The applicant has contended further that there exists a civil suit between the National Police Service and the Mitumba Women Group thus she is simply being harassed in furtherance of the respondents’ interests in the ELC matter No. 2028 of 2007.
16. The applicant seeks the intervention of this court to prevent her arrest in connection with the matter.
17. The law on anticipatory bail is that it is meant to prevent the arbitrary arrest of an individual whose rights are threatened. The applicant in such an application is under duty to establish that such a threat exists and that if the court does not intervene the liberty of the individual is at stake.
18. The order is not meant to shield suspects from investigations or prosecution. The anticipatory bail order serves the purpose of ensuring that investigators do not arrest the applicant and incarcerate him or her arbitrarily.
19. The anticipatory bail order is not an automatic right to a party and will only be granted in the clearest of cases. It is an order that should be capable of being complied without impeding investigations.
20. In Srikant Upadhyay & Ors. Versus State of Bihar & Anr. Criminal Appeal Noof 2024 ((Special Leave Petition (Crl.) No.7940 of 2023) 2024 INSC 202 the Supreme Court of India held;-
“We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant.” (emphasis mine)
21. The court must consider the circumstances of a particular case before it can consider granting anticipatory bail order. In the instant case this matter has been active since 2023 and there is no evidence before this court to show that any of the respondents has acted in a manner that is inconsistent with the law.
22. The 1 st Respondent simply summoned the applicant to appear and shed light on matters that they were investigating. It is common practice for investigative agencies to summon individuals to appear before them in the course of investigations. The practice is not only good but also affords persons suspected of involvement in crime to appear before the investigators and clear their names before the decision to recommend charges to the Director of Public Prosecutions is made. It is a practice that must be encouraged because it would be grossly unfair to an individual who may have a complete and solid defense to be denied an opportunity to put their case forward before the decision to charge is made.
23. Article 47 of the Constitution envisages that before a decision that has an adverse bearing on an individual’s right is made the decision maker should act in a procedurally fair manner and give an opportunity to the affected person an opportunity to present their version of the whole matter. It is this transformative nature of the constitution that we must all celebrate and investigative agencies should not be prevented from conducting investigations more so where on an objective assessment by the court such investigations are predicated upon reasonable suspicion of the commission of a crime by an individual or group of persons.
24. The applicant does not deny that the group under investigations is linked to her therefore the summons were not improperly directed to her.
25. I have anxiously considered the application and I do not find any evidence to suggest that the applicant is being harassed or that there are attempts to criminalize a civil matter. The applicant has the option of remaining silent upon interrogation and there is absolutely no legal duty upon her to give any information that may be self- incriminating.
26. in the end this court finds that the threshold for granting anticipatory bail has not been met and all that the applicant is doing is to seek to frustrate the course of investigations.
27. The application for anticipatory bail is therefore declined. In the event that the respondents conduct themselves in a manner that is inconsistent with the law, the applicant shall be at liberty to move the High Court for appropriate orders.
It is so ordered.
'
The applicant by way of a Notice of Motion dated 16 th October 2023 expressed to be brought under Articles 10, 19, 20, 21, 23, 28, 29, 31, 47, 48, 49, 50, 60 (1), 84, 157, 159, 165, 285 & 259 of the Constitution of Kenya, 2010, & Sections 123(3) and 124 of the Criminal procedure code cap 75 laws of Kenya moved this court for ORDERS:
1. THAT the present application be certified urgent and the same be heard ex-parte in the 1st instance for Issuance of interim orders ( spent ).
2. THAT this Honourable Court be pleased to grant the Applicant Anticipatory Bail or Bail, for any Bailable offence(s) to in order to prevent the 1st, 2nd and 3rd Respondents from arresting, detaining and prosecuting the Applicant.
3. THAT this Honourable Court be pleased to issue appropriate Orders prohibiting the 1st, 2nd and 3rd Respondents from detaining, and/or arresting the Applicant on her failure to supply the information and/or evidence demanded by the National Police Service Officer attached to the 1st Respondent so as to sustain a charge of money laundering and other related matters.
4. THAT, the Applicant has fear and apprehension that the said Police Offer attached to the 1st Respondent is planning to arrest her going by the several incessant phone calls; the undue pressure and intimidation exerted on her by the said officer who is demanding for evidence.
5. THAT, the Applicant has been subjected to harassment and intimidation from the said officer attached to the 1st Respondent who is constantly threatening the Applicant with arrest, despite the Applicant''s assurance that she has got no information relating to the subject investigation.
6. THAT, the Respondent has ignored the Applicant''s protests that she has no information to give and/or surrender for the cause of investigation by the 1st Respondent.
3. The application is premised on the following grounds:-
i. THAT, the Applicant is a Kenyan Citizen.
ii). THAT, a Police Officer with the National Police Service attached to the 1st Respondent has been coercing the Applicant to allegedly surrender information and/or evidence which she is not in a position to; and in the process; the 1st Respondent the Agency is pursuing the Applicant to incriminate herself.
iii). THAT, the said Police Officer is pursuing the Applicant to surrender information pertaining to her personal status in society, her lifestyle, personal interests, business activities, and sources of her earnings, inter-alia.
iv). THAT, the said Officer contended that he was conducting investigations concerning the applicant on the strength of a Duplicate Criminal Investigation File, from Nairobi Area, pertaining to Nairobi Chief Magistrate''s Court (Milimani) Criminal Case No. 1109 of 2022, The Republic -vs- the Applicant which matter was pending for hearing; and in particular the hearing was scheduled on 26th November, 2023.
Vi) THAT, the said Police Officer threatened that he would have the applicant charged again over the said matter.
vii). THAT, despite the Applicant appearing before the said officer with her two lawyers; the Officer maintained that the Applicant must supply the evidence demanded for.
viii). THAT, the Applicant is apprehensive that she will be kept in custody for longer than the period required as it has happened to other people arrested in connection with alleged offences.
4. In support of the application the applicant deposed thus;-
‘’ 1. THAT, I am a female adult of sound mind thus capable to make and swear this affidavit in support of my application to prevent my arrest and subsequent prosecution by the Respondents for an undisclosed charge of Money Laundering.
2. THAT, I am self employed and as a single Parent, I run affairs with discretion in clear observance of our Kenyan Laws.
3. THAT on or about the 25th August, 2023, I was served with a Requisition compelling my attendance at the Asset Recovery Agency Offices, by one Alfred Choso Musalia, a Police Officer, working under the National Police Service, but otherwise attached to the said Agency.
4. THAT, in the said Requisition the said Police Officer stated that he was making inquiries into an alleged offence of Money Laundering Contrary to Section 3(a), (b) as read with Section 16(1), (a) of the proceeds of crime and Anti-Money Laundering Act No. 9 of 2009; and that "he had reason to believe that I have information which will assist the said officer with his Investigations. A copy of the said Summons/Requisition is attached herewith marked ''MNM1''.
5. THAT, there is an apparent case of malice towards me on account of the fact the National Police Service is embroiled with me in a civil case matter pitting my organization; Wilson Mutumba Women Group and the National Police Service over the ownership of a Land Parcel L.R. NO. 209/14582 at South C, Nairobi pending at the Nairobi High Court Environment and Land Division Case No. 2028 of 2007; wherein I am the 4th Plaintiff. Attached herewith are confirmation details regarding the said matters, marked ''MNM2''.
6. THAT, in the said land matter The National Police Service officers have been accused of illegally occupying the organization''s land parcel, and this scenario has generated enmity and hatred towards the applicant and the other members of the group.
7. THAT, I am also a party in Nairobi High Court Petition No. 40 of 2015 where the Inspector-General of Police has been sued by several petitioners, I occupying position three in the said petition
8. THAT, the said Requisition lacks clarity as to and date, and the place of
commission of the alleged offence of Money Laundering,
9. THAT, it is my understanding that a proposed charge and/or investigation ought to contain all material particulars so as to sufficiently put me on sufficient notice.
10. THAT, I am technically incapable of supplying information to the Police based on a blanket allegation lacking the year of commission place and amount involved.
11. THAT, I am entitled to be given full notification and/or information; rather than being ambushed.
12. THAT, the said officer has now threatened to arrest me in default of supply of the said information.
13. THAT, I am now under severe threat and intimidation from the said Police Officer, and I am very apprehensive that he will cause my arrest, detention and subsequent prosecution for a matter whose information is not within my personal knowledge.
14. THAT, I am single mother doing my best, my family and the consistent and
incessant calls from the said officer are taking a toll on my fragile health.
15. THAT in the circumstances, I do pray for the grant of the prayers in my Notice of Motion.
16. THAT, unless the prayers herein are granted, the present proceedings will be rendered nugatory and my constitutional rights will be under imminent threat.
17. THAT, I am now living in perpetual fear as the said Officer keeps calling me with threats and intimidation.
18. THATI swear this affidavit in confirmation and support of my application herein.’’
5.The affidavit in support of the application basically summarized the applicants concerns and fears. The applicant sought to persuade this court to find that the actions of the respondents are not in keeping with the law and that her right to liberty is threatened unless this court intervenes.
6. The 1 st respondent through Alfred Musalia an investigator filed an affidavit sworn on 14 th October 2024 and in it acknowledged that there were investigations that were on going against the applicant in relation to alleged fraud.
7. The investigation officer alluded to the existence of a special purpose vehicle known as Wilson Mutumba Women Group linked to the applicant through which unsuspecting members of the public had been swindled money to the tune of Ksh. 4,500,000.
8. The 1 st respondent stated that they were investigating the applicant in connection with the alleged fraud under the Proceeds of Crime and Anti-Money laundering Act.
9. The investigator explained that their summons to compel attendance dated the 25 th August 2023 were issued in line with the law to give the applicant an opportunity under Article 47 of the Constitution before any decision could be made against her.
10. The investigator further maintained that the summons, were issued in recognition of the right to be heard before one is condemned and that the 1 st respondent acted in furtherance of Article 50 of the Constitution.
11. The 1 st respondent denied any attempts to intimidate or harass the applicant and insisted that they were simply discharging their statutory mandate.
12. The 1 st respondent urged this court to dismiss the application and find that there is no evidence of harassment that has been presented in support of the application.
13. The rest of the respondents did not file any responses and as such the court shall proceed and determine the application based on the material presented before it.
ANALYSIS AND DETERMINATION
14. The applicant seeks an order for anticipatory citing the fact that she is under investigations and therefore she is apprehensive that the respondents are bent on making her surrender information that may be prejudicial to her and that may lead to self- incrimination.
15. The applicant has contended further that there exists a civil suit between the National Police Service and the Mitumba Women Group thus she is simply being harassed in furtherance of the respondents’ interests in the ELC matter No. 2028 of 2007.
16. The applicant seeks the intervention of this court to prevent her arrest in connection with the matter.
17. The law on anticipatory bail is that it is meant to prevent the arbitrary arrest of an individual whose rights are threatened. The applicant in such an application is under duty to establish that such a threat exists and that if the court does not intervene the liberty of the individual is at stake.
18. The order is not meant to shield suspects from investigations or prosecution. The anticipatory bail order serves the purpose of ensuring that investigators do not arrest the applicant and incarcerate him or her arbitrarily.
19. The anticipatory bail order is not an automatic right to a party and will only be granted in the clearest of cases. It is an order that should be capable of being complied without impeding investigations.
20. In Srikant Upadhyay & Ors. Versus State of Bihar & Anr. Criminal Appeal Noof 2024 ((Special Leave Petition (Crl.) No.7940 of 2023) 2024 INSC 202 the Supreme Court of India held;-
“We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant.” (emphasis mine)
21. The court must consider the circumstances of a particular case before it can consider granting anticipatory bail order. In the instant case this matter has been active since 2023 and there is no evidence before this court to show that any of the respondents has acted in a manner that is inconsistent with the law.
22. The 1 st Respondent simply summoned the applicant to appear and shed light on matters that they were investigating. It is common practice for investigative agencies to summon individuals to appear before them in the course of investigations. The practice is not only good but also affords persons suspected of involvement in crime to appear before the investigators and clear their names before the decision to recommend charges to the Director of Public Prosecutions is made. It is a practice that must be encouraged because it would be grossly unfair to an individual who may have a complete and solid defense to be denied an opportunity to put their case forward before the decision to charge is made.
23. Article 47 of the Constitution envisages that before a decision that has an adverse bearing on an individual’s right is made the decision maker should act in a procedurally fair manner and give an opportunity to the affected person an opportunity to present their version of the whole matter. It is this transformative nature of the constitution that we must all celebrate and investigative agencies should not be prevented from conducting investigations more so where on an objective assessment by the court such investigations are predicated upon reasonable suspicion of the commission of a crime by an individual or group of persons.
24. The applicant does not deny that the group under investigations is linked to her therefore the summons were not improperly directed to her.
25. I have anxiously considered the application and I do not find any evidence to suggest that the applicant is being harassed or that there are attempts to criminalize a civil matter. The applicant has the option of remaining silent upon interrogation and there is absolutely no legal duty upon her to give any information that may be self- incriminating.
26. in the end this court finds that the threshold for granting anticipatory bail has not been met and all that the applicant is doing is to seek to frustrate the course of investigations.
27. The application for anticipatory bail is therefore declined. In the event that the respondents conduct themselves in a manner that is inconsistent with the law, the applicant shall be at liberty to move the High Court for appropriate orders.
It is so ordered.
'