RIAZ SHIRAZ HUSSEIN VS DIRECTOR OF CRIMINAL INVESTIGATION AND INSPECTOR GENERAL OF POLICE AND 1 Others

(ORIGINATING FROM MOMBASA CHIEF MAGISTRATE'S CRIMINAL MISCELLANEOUS APPLICATION NUMBER E616 OF 2024)

Introduction

1. This Honourable Court is called to determine the Notice of Motion application dated 26^th September, 2024 brought under the dint of Article 10,21(1),22(1),23,28,29,47(2),49(1),159(2), and 244(C) of the Constitution of Kenya, Section 123 of the Criminal Procedure Code And other enabling Provisions of the Law by the Applicant.
2. The Applicant sought the following orders:-
3. Spent
4. THAT the Honourable Court be pleased to order that the Kshs. 50,000 deposited by the Applicant in Mombasa Chief Magistrate's Criminal Miscellaneous Application Number E616 of 2024 be used as anticipatory bail pending any investigations by the respondents.
5. THAT the Respondents and all police officers subordinate to them be restrained by an order of injunction from arbitrarily summoning, arresting, incarcerating and/or interfering with the Applicants freedom of movement in relation to the interactions to the trade disputes between the Applicant and the Interested Party herein.
6. THAT the costs of this Application be provided for.
7. The Application is supported by the applicant’s affidavit wherein he avers that:-
8. The Applicant and the Interested Party have been long term business partners dealing in sale of motor vehicles.
9. The Applicant and the Interested Party differed in their business endeavors whereby the Interested Party whimsically took away the motor vehicles he had supplied to the Applicant.
10. The Applicant instituted a civil suit at the Chief Magistrate's Court at Meru whereby he obtained injunctive orders stopping the Interested Party from seizing the motor vehicles from the Applicant herein.
11. Besides the issuance of the injunction, the Interested Party never complied with the orders of Court but instead seized the motor vehicles in contempt of the orders of Court.
12. The defiance forced the Applicant to institute an Application for contempt against the Interested Party. Court went ahead to order that the contemnor (the Director of the Interested Party) surrenders his passport in court and the seized motor vehicles be returned to the Applicant forthwith in compliance with the orders of injunction issued.
13. Having sensed defeat, the Interested Party now resorted to the use of Police to intimidate and harass the Applicant.
14. The Interested Party now changed tune and informed the Police that the Applicant had stolen his motor vehicles causing the police to arrest the Applicant at Meru on 20^th September, 2024 and was later transported to Mombasa on 21^st September, 2024.
15. The Applicant was eventually arraigned in Mombasa Magistrate court on Monday 23^rd September, 2024 where the Police through an Application sought for additional ten days to detain the Applicant in order to carry out investigations.
16. The Police Application for the continued detention of the Applicant was heard on merit in open Court and court was persuaded that the problems between the Applicant and the Interested Party were largely civil in nature which would be suitably resolved in a commercial case as opposed to criminal proceedings. In any event, the parties were already involved in a civil suit that was already ongoing.
17. The Mombasa court nevertheless admitted the Applicant to a cash bail of Kshs. 50,000 pending the said investigations and any incidentals thereto.
18. Besides the payment of the said cash bail, the police and the interested party had continued to intimidate, harass and install fear in the Applicant issuing threats of arresting him.
19. The Applicant is now a man under siege living under immense fear with his security under threat.
20. The Police and the Interested Parties are now misusing the criminal justice to settle commercial disputes which are civil in nature that can be remedied through an award of damages as opposed to Criminal sanctions.
21. An honest analysis of the impasse herein, clearly reveal that the Police and the Interested Party are not entirely interested in justice but are simply want to maliciously harass the Applicant herein.
22. Unless the court allows this Application and issues urgent orders, the Police are likely to arrest the Applicant again on Friday, as it has been their culture and modus oparendi.
23. Whereas the Police are empowered to carry out investigations, the same ought to be carried out judiciously paying respect to the rule of law and any court orders.
24. Unless this Application is heard expeditiously, the Respondents may arrest the Applicant reducing this Application into an academic exercise in futility.
25. From the face of this Application, the Applicant herein has a prima facie case with high chances of success.
26. The Respondents herein shall suffer no prejudice if the orders sought herein are issued expeditiously.
27. The actions of the Respondents clearly indicate that they have no respect for the letter and spirit of the Constitution and the rule of law but pay homage to the law of the jungle. Clearly, they have expressed their defiance of the orders of Court.
28. The actions of the Respondents herein are absurd, unreasonable, oppressive and vindictive.
29. The actions of the 1^st and 2^nd Respondents are not only outrageous but also capricious and whimsical.
30. The actions of the Respondents clearly indicate that they have no respect for the spirit of Constitution and the rule of law. They have overthrown the Constitution and ushered in lawlessness and anarchy.
31. The acts of the Respondents are not only outrageous but also criminal, dickenish, capricious and whimsical.
32. This Honourable court is vested with jurisdiction and powers under the law to grant the orders sought ex debito justciae.
33. It is only fair and just that the Application be allowed and prayers sought granted in their entirety.

Analysis and Determination

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 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 provided 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”.

1. The Applicant contended that the Police and the Interested Parties are now misusing the criminal justice to settle commercial disputes which are civil in nature that can be remedied through an award of damages as opposed to Criminal sanctions. they submotteed that an honest analysis of the impasse herein, clearly reveal that the Police and the Interested Party are not entirely interested in justice but are simply want to maliciously harass the Applicant herein. Unless the court allows this Application and issues urgent orders, the Police are likely to arrest the Applicant again , as it has been their culture and modus oparendi.
2. The respondent filed an affidavit attaching  a letter from the ODPP stating that  after perusing the file, they were of the opinion that the case did not meet the threshold to form a decision to charge. I have also learnt that the interested party sought a review of that   decision and its is still pending . Indeed this is a highly contested dispute .

Conclusion and Disposition

1. It is also not disputed that there is a civil dispute in court  and the  applicant had been presented before  The Chief Magistrate court Mombasa where he was granted bond. Despite those proceedings ,  the officers were threatening to arrest and detain him. It has not been alleged that he is likely to interfere with investigations in any way. Further, he deposes that he is ready to cooperate with the investigators.   The subsequent  threats  are  suggestive of high handedness and abuse of power hence a breach of the rights of the Applicant.      Whenever there is such a threat, the court must step in.
2. On basis of the above, the court hereby grants anticipatory bail to the applicant on the following terms;
3. The Applicant is hereby admitted to anticipatory bond.
4. The Cash bail of Kshs. 50,000  which was deposited by the Applicant in Mombasa Chief Magistrate's Criminal Miscellaneous Application Number E616 of 2024 be used as anticipatory bail pending any investigations by the respondents.- 
5. The Applicant is hereby ordered to avail himself  in the presence of his advocate for interrogation by the officers of the respondents when and as requested and cooperate with the investigators.   This should be at mutually agreed dates and between the hours of 9.00AM and 4.00 pm.
6. The police should finalize their investigations and make a determination whether to charge the applicant within a period of six months from today.
7. If such a decision is made, he should be issued with summons to attend the plea court.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……19th.…………DAY OF …………December……………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora Court Assistant;

Ms. Maina……………State Counsel;

Applicant and the advocate