RULING
The applicant approached this court by way of originating notice of motion dated 24th July 2023 seeking inter alia that the application be certified as urgent and he be admitted to anticipatory bail and or bond, and that pending the hearing and determination of the application that a conservatory order to issue to restrain the respondents from arresting charging harassing otherwise interfering with the Applicants freedom and liberty. These orders were granted ex parte and what was pending was prayer number 4 seeking conservatory orders restraining the respondents their servants agents officers and or anybody acting on their behalf from arresting charging or harassing the applicant without conducting investigations and according him an opportunity to be heard or without issuing him with summons to appear at any offices to record statements if need be .
The motion was supported by his affidavit sworn on 24th July 2023
He deponed that he is an advocate of the high court of Kenya currently serving as the senator for Makueni County and having previously served as the Member of Parliament for Makueni constituency for two terms .
He deponed that sometimes in July 2023 the first respondent with drew and recalled his security detail without any notice whatsoever and despite the parliamentary service commission continuing to pay for the security.
That when he visited the offices of the first respondent he was informed that his security detail had been withdrawn due to his attendance of Wiper party press conference which he did not address .He deponed further that the other reason for the withdrawal of his security detail was due to his legal representation offered to the honourable Opiyo Wandayi and honourable Stewart Madzayo in criminal case number E 038 of 2023 Republic versus Opiyo Wandayi and others, two members of Machakos County Assembly in criminal case number E037 of 2023 Republic versus Felix Mutunga and Steven Nzoe.who had been charged with the offence of taking part in an unlawful assembly .
He deponed that as at the filing of this motion the two cases had been dropped and the accused persons had been acquitted and set free .
It was his position that he was being targeted due to his affiliation with the Azimio one Kenya coalition and was apprehensive that the respondents were planning to visit upon him acts and or omissions recently visited upon various legislators affiliated to the said coalition. He deponed that there had been arbitrary arrests of legislators from the Azimo one Kenya coalition being held incommunicado and thereafter produced in court way past the constitutionally set 24 hours .
He deponed further that he had information from certain legislators from the Kenya Kwanza Coalition that respondents were planning to arrest and detain him yet he had not committed any offence neither did he intend to commit any offense under the laws of Kenya .Further that the arbitrary arrests were directed towards him because of his close association with the Wiper Party leader Hon Stephen Kalonzo the leader of the Azimio coalition. He deponed further that they had been strange persons roving around his home stead in Karen and also that he had been receiving calls from strange and unknown numbers seeking to know his whereabouts he believed that the calls were from the agents of the respondents thereby confirming their intentions to arbitrarily arrest him and to curtail his freedom and liberty
That this fear was real and that he had been unable to attend a hearing before the Court of Appeal on the 20th of July 2023 in civil application number E304 of 2023 CS National Treasury and others versus Okia Omtata and others, where he was appearing for the 7th petitioner respondent . That the threats had curtailed his ability to meet his constituents at the county level impairing the performance of his duties as their senator
In response the third respondent filed grounds of opposition on the ground that the independent policing oversight authority act no.35 of 2011 clearly defines the scope and mandate of the 3rd respondent and it does not encompass any such powers as attributed to the respondents by the applicant. That the application was mischievous and misconceived and designed to mislead the court and is an abuse of the due process of the court and the court to be dismissed As against the third respondent.
The 4th Respondent filed a replying through Prosecuting Counsel Lucas Tanui who set out the mandate of the office of the director of public prosecutions And the role of the public prosecutor with respect to accused persons or suspects .He deponed that he was aware that the applicant was not under any investigation during the period in question and therefore the applicant could not have been arrested at all and that prior to filing the application the applicant had sought from him whether the police were looking for him to arrest him since he was apprehensive of arrest. That Mr Tanui confirmed from the county criminal investigating officer that the applicant was not wanted by the police for arrest That he was surprised that despite his assurance to the applicant he went ahead to file this application that he had assured the applicant that if he was to be arrested the office of the director of public prosecution would ensure that his rights were protected as required by the law.
That the applicants averments in the supporting affidavit did not support the prayers sought in their application That this application had been filed with other motives other than in the administration of justice protection of personal freedoms and liberty. He deponed that the applicant’s liberty and freedom was not threatened during the time he filed the application or even at the point he , Mr Tanui swore his affidavit 30/10/2023.
His prayer was at the application had no merit and should be dismissed
The other respondents did not file any responses
Parties were given an opportunity to file submissions and the applicant filed submissions dated 4th March 2024 .
It is submitted that “during the county wide and government demonstrations there were arbitral arrests of those perceived to support the demonstrations or were closely associated to them in one way or thIt is submitted that the nation witnessed unprecedented distrust and uproar from its citizenry which unfortunately led to the loss of innocent lives all over the country Including our beloved Makueni County’. He submits further that most Makueni leaders including the county speaker, members of County Assembly, businessmen, and common folk who are arrested and or kidnapped, some in the middle of the night and whisked away mafia style in direct contravention of their constitutional rights to unknown destinations leaving their families and legal counsel in fear and anxiety only for their accused to be arraigned outside “territorial jurisdiction”
It was further submitted that the right to equal protection of the law is guaranteed by article 27 one of the constitution ,the right to human dignity and article 28, the right not to be deprived of freedom arbitrarily or without just cause and being detained without trial, article 29, the right to access information , articles 35, freedom of movement and the article 39; The right to fair administrative action article 47 as read with the fair administrative action act and the right to a fair trial the article 50 of the constitution among other constitutional rights .
The applicant relies on Anthony Ritho Mwangi and Anor vs AG NBI Cr App no 70a of 2001 & 63 /2001 (UR)Where the court stated that
… our Constitution is the Citadel where good governance under the rule of law by all the three organs of the state machinery is secured. The very structure of separation of power and the independence of the three organs calls for judicial review by checking and supervising the functions ,obligations and powers of the organs, namely the executive and the legislature. The judiciary though seems to be omnipotent, it is not so, as it is obligated to sub serve and uphold the spirit and the majesty of the Constitution and the rule of law.
It is submitted that the applicant is calling upon the court to safeguard his rights as enshrined in the bill of Rights, to ensure the law is applied as it ought to be and for due diligence to stop his arbitrary arrest; he is calling upon the court to protect his rights to represent his constituents without fear or intimidation and to practice as an advocate without fear of repercussion backlash or repression.
It is argued that even though the 3rd and 4th respondents do not have the right to arrest it is their duty to ensure that no Individual is maliciously or unreasonably arrested prosecuted or persecuted.
It is submitted that the applicant has made a case for the issuance of the conservatory orders that are sought in the application.
The other parties did not file any submissions.
The only issue for determination is whether the prayer sought is tenable.
I have considered the record, the application, affidavit in support and the cited authority Samuel Muciri W’Njuguna v R [2004] eKLR.
The record shows that on 25th July 2024 the court upon hearing counsel for the applicant granted the applicant anticipatory bail of Ksh 200,000 personal bond. The court also allowed interim conservatory orders pending the hearing and determination of the application inter- partes.
The 1st and 5th Respondents did not respond despite service. The 3rd respondent filed grounds of opposition and the 4th an affidavit in reply.
Counsel for the 3rd Respondent Mr. Kipkuto made oral submissions with respect to the application on the strength of the grounds of opposition seeking that the application be dismissed as the applicant was not seeking any specific orders against the 3rd respondent. It was submitted that the applicant being a non police officer, there was no nexus between him and IPOA, and IPOA;s jurisdiction was with police officers as provided for under s. 5 of the Act.
The the applicant sought to file written submissions.
Is there any threat to the liberty and livelihood of the applicant?
Is there any threat to his rights as outlined in the application?
Article 19 of the Constitution provides for the Scope of the Bill of Rights
19. Rights and fundamental freedoms
(1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.
(2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.
(3) The rights and fundamental freedoms in the Bill of Rights— (a) belong to each individual and are not granted by the State; (b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and
(c) are subject only to the limitations contemplated in this Constitution
Article 21 speaks on implementation of rights and fundamental freedoms inter alia that it is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
Article 22 provides for Enforcement of Bill of Rights inter alia that Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
Article 165(3) of the Constitution empowers this court with the jurisdiction among others to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
The applicant came before this court at a time when there were arbitrary arrests, detention and charging in court of persons as described in his affidavit. Taking a cue from the Kiswahili saying ukiona mwenzako akinyolewa chako kitie maji ( literally when you see you colleague’s hair being shaved , wet yours), the applicant did not want to have his head shaved and came to court because he felt threatened by the actions of the respondents. Reading his affidavit at the material time one could see the imminent danger and that is why this court proceeded to grant the interim orders sought then, restraining the respondents from exercising their lawful mandates in violation of his rights.
It is important to state here that all state organs and that includes the individuals who are mandated to carry out the mandates of those organs are bound by the Constitution of Kenya 2010 without exception. They are bound notwithstanding, in the words of Article 27 the race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth to observe, respect, protect, promote and fulfil the rights and fundamental freedoms of every person.
The applicant’s position is that his political affiliations are the cause his troubles.
I heard the 3rd resp counsel submit that the applicant was not a police officer and therefore IPOA Act did not apply to him.
The IPOA Act was passed as an Act of Parliament to provide for civilian oversight of the work of the Police; to establish the Independent Policing Oversight Authority; to provide for its functions and powers and for connected purpose.
Counsel for the 3rd respondent cited s. 5 of the Act witch states ;
5. Objectives of the Authority.
The objectives of the Authority shall be to—
(a)hold the Police accountable to the public in the performance of their functions;
(b)give effect to the provision of Article 244 of the Constitution that the Police shall strive for professionalism and discipline and shall promote and practice transparency and accountability; and
(c)ensure independent oversight of the handling of complaints by the Service.
It is evident that the it would not be correct for the 3rd Respondent to argue that IPOA only applies to Police Officers. It is clear that in any situation where the Police may act contrary to their legal mandate, civilians have a leeway to hold them accountable through IPOA. IPOA ought to therefor take interest in any circumstance where a civilian raises an issue with regard to the exercise of police power/authority. No complaint can be minor and IPOA cannot fold its hands and wait for the violation to occur so as to take action. Even a threat to any of the rights in the Bill of Rights thro the actions of any police officer ought to be a call to action by IPOA in the exercise of its mandate.
In this case there was an allegation of arbitrary arrests, holding of arrested persons beyond the constitutionally allowed 24 hours etc. That ought to interest IPOA as it speaks to the professionalism, transparency and accountability in the exercise of police powers by the officers alleged to have acted in that manner and ought to have interested IPOA.
Coming to the application before me. The applicant did not place before court evidence to support the allegation that strange people were going round his home in Karen. Neither dis he place before court evidence of the alleged phone calls by strangers. He also did not place before court evidence that he was unable to attend court as alleged to represent his clients or that he had been unable to attend to his duties as alleged. The 4th Respondent stated on oath that the police were not looking for the applicant and should he be arrested they were going to ensure that his rights were protected under the law.
That said I have carefully considered that application within the effluxion of time. The applicant came with the sole view of preserving his right to liberty against any contravention by the respondents. The 4th respondent told the court that no such risk existed and up to the time of the filing of submissions by the applicant, there was no evidence that the fate that had allegedly befallen his colleagues would befall him.
That season in the political life of Kenya passed and we are in another season.
That applicant did not demonstrate that after interim orders there was any risk of the violation of his rights and it is my view that the fears expressed then have been over taken by events.
I consider the prayer for the confirmation of the conservatory orders to have abated by reason of passage of time.
The prayer is declined.
No orders as to costs.
Dated signed and delivered this 7th March 2025
Mumbua T Matheka J
CA Ms. Nelima
For Petitioner Mr. Hassan
For 1st Respondent N/A
For 2nd Respondent N/A
For 3rd Respondent N/A
For 4th Respondent Mr. Kazungu
For 5th Respondent N/A