1. Before me is the Notice of Motion dated the 24TH day of November 2024. It is brought pursuant to Article ,10,19,20,22, 25, 49, 159,163(3) and & 259 of the Constitution of Kenya, clause 4.9 of the bail and bond decisions (sic)and Section 123 of the Criminal Procedure Code (Cap 75) AND all other enabling provisions of Law.
The applicant seeks the following ORDERS:
i. Spent
ii. Spent
iii. That the applicant be admitted to anticipatory bail pending any contemplated arrest or charge and or /action by the respondents and their agents namely police officers /or any persons who may be instructed by them to undertake any such arrest or adverse action.
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 SHEILA NKATHA MUTHEE and on the grounds t ;
i) THAT the Applicant is an Advocate of the High Court of Kenya practicing predominately in Mombasa County and its environs.
ii) THAT the Applicant is also the Managing Partner of Muthee & Partners LLP with its registered Offices at Ralli House, 3rd Floor, Mombasa County and was formally the Managing Partner of Muthee Kihiko LLP Advocates prior to its dissolution in January 2024.
iii) THAT the Applicant acted as the Vendor’s and the Purchaser’s Advocates in a conveyancing transaction in respect to a parcel of land being Title Number Kwale/Diani Complex/1627.
IV). THAT the Applicant was also a Director in the company being Ruhein Company Limited wherein she had been nominated by one Rubi Heinz a Swiss national to act as such.
v). THAT the Applicant was unable to proceed with the transaction to completion owing to the untimely demise of Rubi Heinz and she awaits to be updated on succession proceedings so as to take instructions from the Administrator of Rubi Heinz (Deceased).
Vi). THAT the Applicant recorded a Statement at DCI, Mombasa on 7th June 2024 and is fully aware that the Respondent now intend to commence criminal proceedings against her on account of the said Title Document which she holds and the Funds awaiting instructions from the Administrator.
Vii). THAT the Applicant has been previously arrested and detained for 2 days at the Central Police Station and denied police bail on account of a commercial transaction which proceedings have now been publicized in an attempt to malign her reputation as an Advocate.
viii). THAT the proceedings were conducted in a way that she was likely to be committed in custody through the weekend from 23rd November 2024 to 25th November 2024 by virtual of having been denied cash bail and having been granted bond terms of Kshs. 5,000,000.00 past 2pm on a Friday afternoon without taking into account the intricate issues and procedures required before Bail can be approved.
ix). THAT the Applicant is apprehensive that there is malice on the part of the Respondents who are being facilitated and used to have her arrested on account of conveyancing transactions handled by her as an Advocate and where she has handled Client’s funds as a stakeholder.
xi). THAT the malice is further evidenced by the fact that the transactions are not fraudulent in nature and any determination of the issues revolving around the transactions ought to be by way of civil procedure rules or if need be by way of reporting the issues to the Advocates Complaints Commission or the Advocates Disciplinary Commissions.
xii.) THAT no complaints have been raised with the said professional bodies as the sole aim of any acts by the Respondents is to malign the Applicant’s reputation and infringe on her Constitutional rights to freedom.
xiii). THAT there is threatened violation of the Applicant’s rights and fundamental freedom by the Respondents which violation is in the fact that the matter which is the subject of investigations is also the subject of a civil case pending in court.
xiv). THAT the Applicant is apprehensive that the Respondents and the former Partner intend to use their investigative powers to coerce the Applicant to surrender the Title Deed in her possession.
xv). THAT the Applicant’s apprehension on her infringement of her Constitutional rights is demonstrable by the recent arrest, detention and denial of cash bail over a commercial transaction where she acted as an Advocate where she was making partial payments towards offsetting the amount due.
xvi). THAT any arrest of the Applicant who is an Advocate of the High Court of Kenya and the Managing Partner of a Law Firm prejudices the Firm’s Clients who expect representation and advice at any time the same is required.
Xvii). THAT the Applicant is not a flight risk and will be available to attend Court during any Court proceedings or even in the event there is any urgency to such attendance and any arrest will be unwarranted and purely malicious.
Xviii). THAT it is in the interests of justice that the Honorable Court grants the Applicant favorable and affordable anticipatory bond terms.
3. Her affidavits rehearse these grounds.
4. The 1st Respondent filed grounds of opposition .
THE LAW
5. 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.
6.In other jurisdictions for instant India, a common law
premised 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.
7.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.
8. 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.
9. 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.
10. 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. I find good guidance in the case of Republic vs Chief Magistrate Milimani & Another Exparte Tusker Mattresses Limited & 3 Others [2013] eKLR where it was 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”
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”.
15. It is for this reason that the Applicant moved this court seeking her protection by issuance of anticipatory bail to avert the said illegal arrest and detention by the DCI who she says have shown that they wantonly can abuse and exceed the powers granted unto them by allowing their misuse their.
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. The powers granted to the Office of the Director of Public Prosecutions are delineated in Article 157(6) of the Constitution of Kenya as follows:-
“(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may--
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;”
20. The above powers are further buttressed by guiding principles as set out in Section 4 of the ODPP Act that provides as follows: -
“In fulfilling its mandate, the Office shall be guided by the Constitution and the
following fundamental principles—
(a) the diversity of the people of Kenya;
(b) impartiality and gender equity;
(c) the rules of natural justice;
(d) promotion of public confidence in the integrity of the Office;
(e) the need to discharge the functions of the Office on behalf of the
people of Kenya;
(f) the need to serve the cause of justice, prevent abuse of the legal
process and public interest;
(g) protection of the sovereignty of the people;
(h) secure the observance of democratic values and principles; and
(i) promotion of constitutionalism.”
21. The guidelines that aid the ODPP in making the decision to charge are set out in the Guidelines on the Decision to Charge (2019) that sets out the following:-
“3.2 The Two-Stage Test The Two Stage Test, comprising an ‘evidential test’ followed by a ‘public interest test’ should be applied: when all outstanding reasonable lines of enquiry have been pursued or; prior to an investigation being completed, where the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Two Stage Test whether in favour or against a prosecution.”
APPLYING THE TEST:
22. I have considered the grounds in the Notice of Motion filed by the Applicant and the 1st Respondent’s Written Submissions as well as the Grounds for Opposition.
23. The Applicant sought the orders aforementioned based on the belief that the Respondents should be restrained in carrying out investigations regarding the subject matter in dispute in a civil proceeding, as they intend to utilise their prosecutorial powers to dispossess her of the Title Deed in an unlawful and malicious manner.
24. The 1st Respondent’s position is, that the investigations carried out were strictly guided by the law, particularly Article 157(11) that requires that the powers conferred to the Office of the Director of Public Prosecutions be exercised with regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
25. The 1st Respondent further states that the investigation was initiated by numerous complaints filed at the DCI Land Fraud Office in Mombasa with regards to the applicant’s apprehension to do with title No. CR 11673 subdivision 1270/I/MN that prompted investigations by the 2nd Respondent who diligently carried out investigations before submitting the file to the 1st Respondent for a decision to charge. It is their submission that the investigation and decision to charge were carried out independently and lawfully.
26. While balancing these two positions the court must bear in mind that 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 it is justice to all parties.
.
26. The court is minded not to derail or fix shackles on 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 she was arrested and held in custody for two days and eventually granted bond terms which could not be met in time.
28. The court therefore finds that the application has merit and is allowed in the following terms;
i. The Applicant is hereby admitted to anticipatory bail/bond.
ii. The terms are a bond of Kshs. 500, 000 with 1 surety and a contact person and in the alternative a cash bail of Kshs.200,000 with 1 contact person.
iii. The Applicant to deposit her passport in court and she may not leave the jurisdiction without the knowledge and permission of the court.
iv. The security /cash bail should be deposited within the next 21 days from today.
v. The Applicant, if called upon , should to avail herself to the Officers of the Respondents co-operate with the investigators.
vi. If and when the said investigations are complete and a decision is made to charge the Applicant, then the respondents should issue a bond or obtain summons to attend court and the Applicant should obey.
vii. The bond bail and cashbail will be processed in the High Court since there are no charges as yet.
viii. The investigations should be finalized within the next 6 months.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this ………14TH………day of …………APRIL………………2024
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
MR GACHIE FOR THE APPLICANT
MR NGIRI FOR THE RESPONDENT
HON. LADY JUSTICE W. K. MICHENI
JUDGE