1. Before me is the Notice of Motion dated the 23rd day of September 2024. It is brought pursuant to the following Constitutional Articles; 3,10,19,20,22, 25, 49, 159, 258 & 259 of the Constitution of Kenya, then Sections 123(3), 124, 125 of the Criminal Procedure Code (Cap 75) AND all other enabling provisions of Law.
The Applicant seeks the following ORDERS:
i. Spent
ii. That the court be pleased to order the admission to bond/bail of the Applicant on such terms and conditions as it may seem just and reasonable and subsequently release of the Applicant pending the conclusion of police investigations and preferring of criminal charges if any .
iii. Spent
iv. That the court be pleased to admit the Applicant to Anticipatory bail pending arrest or charges if , any on such terms as the court may deem fit;
v. Any other order the court may deem fit to grant.
vi. Costs of the application
2.The Application is grounded on the Sworn affidavit of the Applicant MOHAMED HUSSEIN MOHAMED and ON THE GROUNDS THAT
a) The DCI has threatened to arrest the applicant and to detain him on un-proven allegations that they have not disclosed to him alleging a blanket offence of cyber harassment.
b) The DCI has threatened and made several attempts to arrest the applicant and charge him with the unspecified charges and not disclosing any particular offence to aid the applicant in preparation for the said undisclosed offence.
c) That bearing in mind the Applicant is a political figure and the County Executive Committee Member responsible for Lands, Planning and Urban Development of the County Government of Mombasa, there are political instigated actions, omissions and commission against the Applicant.
d) The applicant is a known individual in society through his post as CEC in the County Government and this whole process is aimed at tarnishing his reputation and settling political scores as can be clearly seen from the apparent disregard of laid down procedures with the sole aim of intimidating the applicant.
e) The recent incidences in the Country where individuals are abducted and cannot be traced is alarming and the Applicant is worried that those actions, omissions and commissions can fall upon him and family members might not be able to trace his whereabouts once detained.
f) That the ill motives of the DCI have been shown through their apparent abduction of people who are believed to be linked to the applicant. The said individuals were abducted by plain clothes men claiming to be detectives from the DCI who did not identify themselves on Friday, 20th September 2024, at 11am.
g) the victims were then moved from Regional headquarters to port police station then to central police station at night in an attempt to hinder their being traced and people accessing them or knowing their whereabouts.
h) They were consequently remanded at Regional headquarters on Friday night, then moved to Mjambere police station on Saturday 21st September 2024, where they have been held to date without being produced in court.
i) That all these factors point to these threats and attempts at arresting the applicant suspicious and ill motivated with unknown people intending on settling political scores through the DCI.
j) Conversely, in the face of increasing abductions and disappearance of individuals recently without any justification and most not being traced or found to date, the applicant is rightly apprehensive and afraid of the same fate befalling him.
k) That this ill motive of arbitrary arrests with no legal or logical basis is a flagrant disregard to the policy of balancing the rights of the suspects and accused persons with the public interest, including protecting the rights of the accused person to be presumed innocent in accordance with article 50 and their right to liberty.
l) the applicant is apprehensive that the said DCI have, at the instigation of others, determined to arrest the applicant on the afore-mentioned trumped up grounds and the applicant is convinced that should he be left at their mercy he shall know no peace and shall remain at risk of illegal arrest and possible disappearance, for crimes which have no basis whatsoever in fact.
m) The Applicant who is also the County Executive Committee Member responsible for Lands, Planning and Urban development if detained and his whereabouts unknown will lead to some of the functions of the County Government of Mombasa to come to a standstill bearing in mind the County Executive Committee Member is responsible for Planning and issuing development permissions as per the Physical and Land Use Planning Act No. 13 of 2019.
n) It is for this reason that the accused has come before this court seeking its protection by issuance of anticipatory bail to avert his illegal arrest and detention by the DCI who have shown that they wantonly can abuse and exceed the powers granted unto them by allowing their misuse to settle political scores instead of protecting and upholding the rule of law.
. His affidavit rehearses these grounds.
3.The 1st Respondent through, Miss Maina , filed their grounds of opposition to the Application. They stated that the Notice to compel attendance which was issued , was pursuant to section 52 of the National Police Act which gives them statutory and constitutional powers to investigate complaints made to them. They cited the case of R vs CM Milimani and another Ex Parte Tusker mattresses ltd and others (2013 )eKLR and argued that the court should not stop a law full investigation. They said that all the Applicant’s rights had been fulfilled and he had not demonstrated any prejudice he will suffer.
4.The 2nd and 3rd Respondents filed a Replying Affidavit sworn by No. 232903, C.I. CAPIUS OTIENO who states;
a) THAT the Applicant was issued with a Notice to Compel Attendance dated 23rd September 2024 in regards to an ongoing investigation relating to the offence of Cyber Harassment contrary to Section 27 of the Computer Misuse and Cybercrimes Act No. 5 of 2018.
b) THAT the 3rd Respondent issued the Notice of Compel attendance in exercise of his investigative mandate and pursuant to Section 52 of the National Police Service Act. A copy of the Notice to compel attendance is annexed herewith is annexed herewith and marked A.
c) THAT he is informed by Mr. James Lelia, County Criminal Investigation Officer, which information he verily believes to be true and correct that the Notice to Compel attendance was served upon the Applicant.
d) THAT he is further informed by Mr. James Lelia, County Criminal Investigation Officer, which information he verily believes to be true and correct that in response to the Notice to compel attendance he received a letter reference CGM/CS DCI/9.24/NBS (J.F) dated 23rd September 2024 from the County Secretary and Head of Public Service Mombasa County informing him that the Applicant will avail himself on 30th of September, 2024. A copy of the letter reference CGM/DCI/9/24/NBS (J.F) dated 23rd September, 2024 is annexed herewith and marked B.
e) THAT he further informed by the Mr. James Leila County Criminal Investigation Officer which information I verily believe to be true and correct he wrote back to the County Secretary and Head of Public Service Mombasa County vide a letter reference number CID/SEC/MSACNTY/4/4/7/VOL XIX/219 dated 23rd September, 2024 acceding to the request for the applicant to avail himself on 30th September 2024 at the ATPU Boardroom in Mombasa. A copy of the letter reference number CID/SEC/MSACNTY/4/4/7/VOL XIX/219 dated 23rd September 2024 is annexed herewith and marked C.
f) THAT it is important that the Applicant avails himself before the investigation team as required in the summons to shade light on issues arising from the ongoing investigation.
g) THAT they opposed the Application.
5.The LSK and the Mombasa LSK were granted leave to join the proceedings. By the time of this Ruling, I have not seen any document filed by team. Mr. Kabata however attended the court twice on their behalf. He submitted, orally, that they were supporting the position taken by The Respondents and their sole interest in the matter, which has gathered a lot of public interest, was that justice prevails
THE LAW
6. As rightly pointed out by Gikonyo, J, in the case of Paul Ole Kuyana & Another vs Director of Public Prosecution & 2 Others (Misc. Criminal Application No. 2 of 2021), 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;
i. Bail of arrested person under Article 49(1)(h)
ii. Appropriate relief under Article 23(3) for breach of the Bill of Rights.
7.In other jurisdictions for instant India, a common law jurisdiction, there exists a specific Section 438 on anticipatory bail which states as follows:-
(1) Where any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or to the court of session for a direction under this section that in the event of such arrest he shall be released on bail and the court may after taking into considerations, interalia the following factors namely:-
i. The incident and gravity of the accusations
ii. The antecedents of the applicants including the facts as to whether he has previously undergone imprisonment or conviction by a court in respect of any cognizable offence.
iii. The probability of the applicant to flee from justice and
iv. Where the accusation has been made with the object of injuring or humiliating the applicant by having him arrested, either reject the application forthwith or issue an interim order for grant of anticipatory bail.
8.The Constitutional Court of India went further to consider the fundamental aspects of anticipatory bail to be of such importance and anchored on the right to life and liberty of a person.
9. As earlier stated, in Kenya, there are no specific provisions on anticipatory bail. However, where the remedy has been considered, the courts have applied the threshold for an application for violation or threatened violation of rights under Article 23 and 165(3) of the Constitution.
10. Under Article 29 of the Constitution, every person has the right to freedom and security of the person, which includes the rights not to be (a) deprived of freedom arbitrarily or without just cause.
11, 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 is 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.
12. In the case cited by the 1st Respondent above , that is of Republic vs Chief Magistrate Milimani & Another Exparte Tusker Mattresses Limited & 3 Others [2013] eKLR the relevant paragraph is 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”
13.In the case of Mandiki Luyeye vs 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 constitutional 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 rights must demonstrate the breach by acts and facts constituting the alleged breach”.
APPLICATION
14.The Applicant filed their submissions saying that he was and still is apprehensive that the said DCI have, at the instigation of others, determined to arrest him on the afore-mentioned trumped up grounds and the applicant is convinced that should he be left at their mercy , he shall know no peace and shall remain at risk of illegal arrest and possible disappearance, for crimes which have no basis whatsoever in fact.
15. It is for this reason that the Applicant moved this court seeking his protection by issuance of anticipatory bail to avert his said illegal arrest and detention by the DCI who he says have shown that they wantonly can abuse and exceed the powers granted unto them by allowing their misuse to settle political scores instead of protecting and upholding the rule of law.
16 . As earlier noted, Anticipatory bail is a direction issued by the court to release a person on bail, even before the person is arrested. Anticipatory bail is, therefore, a special relief in criminal law. Where anticipatory bail has been considered, courts have applied the threshold for an application for violation or threatened violation of right under article 23 and 165(3) of the Constitution.
17. Article 165(4) of the Constitution gives this court original jurisdiction to determine questions of violation of fundamental rights and freedom and to further give such orders in the interest of justice and in protection of an aggrieved parties rights.
18. Article 49 provides for the right of an arrested person to be release on bond. Where this is violated further rights that are affected are the applicant’s freedom and/or right against arbitrary detention. Article 29 of the Constitution of Kenya particularly 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”.
19. I repeat what I earlier noted , that any relief by whatever name called, 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. Proof of violation, infringement or threat or contravention of a person’s right under the Constitution of Kenya is required.
It was for this particular reason that I directed from the start of these proceedings that the Applicant must continue to co operate with the investigators and obey such directions as are given,
20. 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 giving remedy for breach of infringement of fundamental Constitutional rights in conformity. The High Court may grant anticipatory bail, that is, bail pending arrest, provided the applicant demonstrates that his or her right to liberty is likely to be compromised or breached unlawfully by The Judiciary of Kenya Doc. IDENTITY: 28538241402802123722114849115 Tracking Number: 005MJ52024 3/3 an organ of the State that is supposed to protect this right. Further, the applicant must demonstrate that the apprehension of arrest is real and not imagined or speculative”.
21. The criminal trial process is regulated by statues, particularly the Criminal Procedure Code and the Evidence Act. There are also constitutional safeguards meant to ensure a balance of the rights of the suspects and accused persons with the public interest, including protecting the rights of the accused person to be presumed innocent in accordance with Article 50.
22. In this Application, The Applicant pointed out that on the 23rd of September, 2024 they obtained orders from this Honourable Court inter alia that the Respondents were restrained from arresting, detaining, holding or interfering with the freedom or the movement of the Applicant. 23. That the matter came up before this court, on 27th September 2024, for hearing when all the Respondents were represented in court specifically by Mr. Makuto for the 2nd and 3rd Respondent and Ms. Maina for the 1st Respondent. That court extended the said orders issued up until the 2nd October 2024 when the matter was scheduled to come before it for further directions. The DCI proceeded to arrest and detain the applicant on the 29th of September 2024t .
23. They say that in blatant and flagrant disobedience of this court’s orders barring the same issued on 23rd September 2024 and further extended it on 27th September 2024 and being aware of the court’s order and the subsequent extension, and their advocates having being present in court on the said date, the respondents failed, refused and neglected to honour to the court order issued by this court by detaining the applicant on 29th September 2024.
24.These breaches are subject of a separate application so I will not delve into their full import though the issue was brought to my attenion and Brief responses made. We shall cross that bridge down the river.
25.The court has since become aware that the application herein are connected to some incident which is subject to another case which is now before court and which has garnered very wide publicity in both the mainstream and social media. There has be a loud clarion call for justice in the matter and this comes with considerable pressure on all parties.
26. Based on this, I do not agree with the Applicant’s position that this case and his being investigated is to fulfil personal vendetta or is aimed at settling political scores. There is also a very Loud clarion call for justice for the victim. This immense public interest appears to be a huge driving force in the matter.
27. Like I said in the related matter, all players in the criminal justice sector, the courts inclusive, ought to be careful not to breach any constitutional rights when there is a matter of public interest. It is true that justice must be met, but its justice to all parties.
28. In particular, the rights of an accused person to a fair trial must not be tampered with. What the investigators must be concerned with, are fair but through investigations and then they can be assured of a verdict which gives the appropriate justice. I repeat here, that quick arrests which are highly published but not based on concreate evidence may win a headline or so, and many social media likes , but these are like a house built on quick sand which cannot stand the test of time and constitutional scrutiny and cross examination.
29. I must emphasize that all players must play by the book as if any side breaks the chain, and the case collapses and often times the court is left to bear the blame.
30. In this case, Mr. Makuto for the 2nd and 3rd Respondents, did not appear to really oppose the Application though he said they did. His main concern was what should happen , should the investigators finalize their investigations and decide to charge the applicant. In a very professional and mature manner that must be commended, he pointed out that not only in this matter but in such related matters, the court should issue a bond to attend court once the investigations are over, so that both the investigations and arraignments are not curtailed by these Applications for Anticipatory bond.
31. Mr. Kabata for the 1st interested party was also of a similar inclination.
32. As indicated in the initial order, the court is minded not to derail or fix or bottlenecks on any of the investigative or prosecution bodies. Each entity must play their role unhindered. The court only steps in , when either side appears to be operating outside the constitutional mandate. In this case, the Applicant says that his fears are well founded and his rights have been breached. He pointed out that he was arrested despite the court order in this application so his fears on the political angle are not baseless.
33. As pointed out earlier, the court’s duty is to ensure that the players act within the constitutional arena and anyone who steps out, must be called to order. I repeat that all players must not be pushed by whatever consideration, including public pressure , to effect any quick arrest so as to be seen to be active. A well investigated matter, professionally prosecuted is what will win Justice for any victim. Anything else is a own goal to the prosecution.
34. The court therefore finds that his application has merit and is allowed. The court hereby grants anticipatory bail to the Applicant on the following terms:-
i. The Applicant is hereby admitted to anticipatory bail.
ii. The bond terms shall be similar to those issued in the related file to wit; A bond of Kshs.1,000, 000.00 with 1 surety of a similar amount plus sworn contact person.
iii. In the alternative the Applicant may deposit a cash bail of Kshs.500,000 with 2 contact persons.
iv. The Applicant to deposit his passport in court and he may not leave the jurisdiction without the knowledge and permission of the court. The same to be deposited with the Deputy Registrar of the high court within 7 days of this ruling.
v. The Applicant to continue availing himself in interrogation by the Officers of the Respondents and to co-operate with the investigators.
vi. If and when the said investigations are complete and if a decision is made to charge the Applicant, then the police may issue a bond to him to attend court and the Applicant should obey and attend court.
vii. Should there be a decision to charge and because of the allegations of arrest while these orders are subsisting and in view of and what has come up in the contempt Application made herein, the bond terms posted in this file will apply as bond in the trial court (Should there be a charge) . This will ensure uniformity and also ensure there is no political witch-hunt or strong arm tactics .
viii. The bond bail and cash bail will be processed in the High Court since there are no charges as yet.
ix. The documents to process the bond or bail or the cash bail must be deposited with the court within the next 2 days from the date of this ruling.
x. If the is a breach of this order by the Applicant , that is to say he does not deposit the documents or the cash bail in time or if he disobeys any summons or bond to attend before the investigators or the court, upon evidence of proper service, then a warrant of arrest shall issue against him.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this ……14th…………day of ………October…………………2024
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
Mr, Makori for The Applicant
Ms Maina for the 1st Respondent
Mr Makuto for the 2nd and 3rd Respondent
Ms Mutune for the 1st and 2nd Interested Parties
Bebora court Assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE