Introduction
This Honourable Court is called to determine the Notice of Motion application dated 7 th April, 2025 brought under the dint of to Article 23 of the Constitution and Rules 4, 8, 13, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013) and Section 3 (1) of the Judicature Act by the Applicant.
The Applicant sought the following orders:-
Spent.
Spent.
THAT there be and is hereby issued an order admitting SAMJI LAKHAMAN VARSANI to anticipatory bail pending any arrest, investigations and/or charges by the Inspector General of Police, the Director of Criminal Investigations and the Director of Public Prosecutions by themselves respectively, their servants and/or agents on such terms as the Honourable Court deems fit and just to grant.
THAT the costs of the application be provided for.
The Application is supported by the Applicant’s affidavit wherein he avers that:-
The Applicant was entitled to protection by this Honourable Court against actual or impending denial, violation or infringement of constitutionally provided rights.
The imminent danger realized from the numerous statements from the Construction Authority, County Government in essence piling pressure and apportioning blame on the contractor.
He was apprehending arrest in connection with anticipated criminal complaint, relating to the demolition or structural concerns of the building situated at MOMBASA/BLOCK XLVI/195 in Bondeni Area, which was alleged to have been constructed in violation of municipal regulations or building codes.
He was engaged only in the capacity of a contractor, executing work in accordance with the sanctioned plans provided by the owners or developers, and had no role in the approval, submission, or deviation of the said plans.
There had been numerous statements from relevant bodies apportioning blame on himself, citing unauthorized construction plans which enhances the public blame and thus he was likely to be the subject of such criminal liability. (Annexed in the affidavit and marked “SV 1” a copy of such statement).
The Applicant was a law abiding citizen and would on any day tum himself in for questioning where the summons are issued properly and in good faith.
The County Government of Mombasa has since issued a demolition permit to the owners or developers of the site and as such he should be protected by any unlawful actions by the Respondents.( Annexed in the affidavit and marked as “SV 2” a copy of the demolition permit.)
There was no custodial interrogation required, and he was ready and willing to cooperate with the investigation, as and when called upon by authorities.
There was no custodial interrogation required and he was ready and willing to cooperate with the investigations, as and when called upon by the authorities.
He undertook to abide by any conditions that this Honourable Court may deem fit to impose for the grant of anticipatory bail.
The Applicant had recently been hospitalized due to the immense mental and physical strain caused by the ongoing situation at the site, including threats of arrest, pressure from stakeholders, and negative public perception. The Applicant has been diagnosed with elevated blood sugars and stress-related hypertension, and is presently under medical supervision.
It was in the interest of justice and fairness that the Application herein be urgently admitted for hearing and determination.
Analysis and Determination
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
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.
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.
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.
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 he had been recently been hospitalized due to the immense mental and physical strain caused by the ongoing situation at the site, including threats of arrest, pressure from stakeholders, and negative public perception. The Applicant has been diagnosed with elevated blood sugars and stress-related hypertension, and is presently under medical supervision. His deteriorating health condition underscores the need for protection from arrest, as custodial detention in such a fragile state may gravely endanger his well-being and serve no constructive purpose in the course of the investigation.
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.
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.
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.
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.”
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”.
The Applicant argues that he was willing to furnish medical records and appears before investigating authorities upon recovery, and reiterates willingness to cooperate fully with any lawful inquiries. The questions I must answer is whether the application meet the threshold for grant of relief of anticipatory bail.
. In the case of Richard Mahkanu vs Republic [2014] eKLR, the court held the firm view that orders for anticipatory bail or bond must not be sought with the intention of pre-empting the outcome of investigations- a position that was also held in the case of Kevin Okore Otieno vs Republic (2013) eKLR.
Any relief by whatever name called say, anticipatory bail, 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. Merely feeling inconvenienced by investigations is not sufficient reason for relief. Proof of violation, infringement, threat, or contravention of a person’s right under the Constitution of Kenya is required .
I therefore find this application merited. The court must however be minded not to interfere with the mandate of the other constitutional bodies as long as the work within the dictates of the law.
Conclusion and Disposition
The applicant is granted an anticipatory bond of Ksh 300,000 with one surety of a similar amount and an extra contact person or alternatively a cash bail of Ksh 200,000 // with 2 contact persons.
The deposit to be made within the next 21 days from today.
For avoidance of doubt, the orders are not a bar to investigations or/or charges and the applicant may be summoned and he should appear before the investigators and co operate with the investigators or attend court if a decision to charge is made.
This file is closed
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …24 th ….…………DAY OF ……………JULY…………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr. SIRIMA……………State Counsel;
………………………………………….…Applicant
This Honourable Court is called to determine the Notice of Motion application dated 7 th April, 2025 brought under the dint of to Article 23 of the Constitution and Rules 4, 8, 13, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013) and Section 3 (1) of the Judicature Act by the Applicant.
The Applicant sought the following orders:-
Spent.
Spent.
THAT there be and is hereby issued an order admitting SAMJI LAKHAMAN VARSANI to anticipatory bail pending any arrest, investigations and/or charges by the Inspector General of Police, the Director of Criminal Investigations and the Director of Public Prosecutions by themselves respectively, their servants and/or agents on such terms as the Honourable Court deems fit and just to grant.
THAT the costs of the application be provided for.
The Application is supported by the Applicant’s affidavit wherein he avers that:-
The Applicant was entitled to protection by this Honourable Court against actual or impending denial, violation or infringement of constitutionally provided rights.
The imminent danger realized from the numerous statements from the Construction Authority, County Government in essence piling pressure and apportioning blame on the contractor.
He was apprehending arrest in connection with anticipated criminal complaint, relating to the demolition or structural concerns of the building situated at MOMBASA/BLOCK XLVI/195 in Bondeni Area, which was alleged to have been constructed in violation of municipal regulations or building codes.
He was engaged only in the capacity of a contractor, executing work in accordance with the sanctioned plans provided by the owners or developers, and had no role in the approval, submission, or deviation of the said plans.
There had been numerous statements from relevant bodies apportioning blame on himself, citing unauthorized construction plans which enhances the public blame and thus he was likely to be the subject of such criminal liability. (Annexed in the affidavit and marked “SV 1” a copy of such statement).
The Applicant was a law abiding citizen and would on any day tum himself in for questioning where the summons are issued properly and in good faith.
The County Government of Mombasa has since issued a demolition permit to the owners or developers of the site and as such he should be protected by any unlawful actions by the Respondents.( Annexed in the affidavit and marked as “SV 2” a copy of the demolition permit.)
There was no custodial interrogation required, and he was ready and willing to cooperate with the investigation, as and when called upon by authorities.
There was no custodial interrogation required and he was ready and willing to cooperate with the investigations, as and when called upon by the authorities.
He undertook to abide by any conditions that this Honourable Court may deem fit to impose for the grant of anticipatory bail.
The Applicant had recently been hospitalized due to the immense mental and physical strain caused by the ongoing situation at the site, including threats of arrest, pressure from stakeholders, and negative public perception. The Applicant has been diagnosed with elevated blood sugars and stress-related hypertension, and is presently under medical supervision.
It was in the interest of justice and fairness that the Application herein be urgently admitted for hearing and determination.
Analysis and Determination
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
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.
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.
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.
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 he had been recently been hospitalized due to the immense mental and physical strain caused by the ongoing situation at the site, including threats of arrest, pressure from stakeholders, and negative public perception. The Applicant has been diagnosed with elevated blood sugars and stress-related hypertension, and is presently under medical supervision. His deteriorating health condition underscores the need for protection from arrest, as custodial detention in such a fragile state may gravely endanger his well-being and serve no constructive purpose in the course of the investigation.
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.
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.
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.
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.”
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”.
The Applicant argues that he was willing to furnish medical records and appears before investigating authorities upon recovery, and reiterates willingness to cooperate fully with any lawful inquiries. The questions I must answer is whether the application meet the threshold for grant of relief of anticipatory bail.
. In the case of Richard Mahkanu vs Republic [2014] eKLR, the court held the firm view that orders for anticipatory bail or bond must not be sought with the intention of pre-empting the outcome of investigations- a position that was also held in the case of Kevin Okore Otieno vs Republic (2013) eKLR.
Any relief by whatever name called say, anticipatory bail, 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. Merely feeling inconvenienced by investigations is not sufficient reason for relief. Proof of violation, infringement, threat, or contravention of a person’s right under the Constitution of Kenya is required .
I therefore find this application merited. The court must however be minded not to interfere with the mandate of the other constitutional bodies as long as the work within the dictates of the law.
Conclusion and Disposition
The applicant is granted an anticipatory bond of Ksh 300,000 with one surety of a similar amount and an extra contact person or alternatively a cash bail of Ksh 200,000 // with 2 contact persons.
The deposit to be made within the next 21 days from today.
For avoidance of doubt, the orders are not a bar to investigations or/or charges and the applicant may be summoned and he should appear before the investigators and co operate with the investigators or attend court if a decision to charge is made.
This file is closed
IT IS SO ORDERED ACORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …24 th ….…………DAY OF ……………JULY…………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr. SIRIMA……………State Counsel;
………………………………………….…Applicant