1. This Appeal arises from the Ruling of Hon H. Barasa PM issued in Eldoret Chief Magistrates’ Criminal Case No. 1636 of 2017 on 12/06/2017 which dismissed a Preliminary Objection raised by the Appellant herein.
2. A brief recap of what transpired before the Trial Court is that the Appellant was charged with the offence of trafficking Narcotic Drugs contrary to Section 4 of the Narcotic Drugs and Psychotropic Substances (Control) Act and one count of Broadcasting Film Production in Public Without a License contrary to section 12(1)(3) of the film Classifications Act.
3. He then filed an application for anticipatory bail in the High Court vide Miscellaneous Application No. 15 of 2017 which application was granted by Hon Mr. Justice Kanyi Kimondo vide the orders of the Court issued on 16th February 2017 and he was admitted to an anticipatory cash bail of Ks. 10,000/- which he paid on 13th February 2017
4. The Appellant was subsequently arrested on 16th April 2017 and arraigned in court 0n 18th April 2017. On the date of plea, by way of a Preliminary Objection, the Appellant through his Counsel submitted that there were subsisting orders issued by the Hon Mr. Kanyi Kimondo that were subsequently extended by the Hon Mr. Justice D. Ogembo (as he then was) directed at the Inspector General of Police through the Investigating Officer Turbo Police Station restraining the Police from arresting and charging the Appellant in court.
5. That in the said order, the court directed that the Appellant presents himself to court on 18th April 2017 for the plea taking if at all the Investigating Officer was satisfied that he ought to be charged.
6. That however, in blatant contravention of this order, Officers of the Inspector-General of Police through Chief Inspector Sylvester Olao arrested him on 16th April 2017 and incarcerated until the 18th April 2017 inclusive when he was taken to court for plea.
7. It was his position that because this arrest and incarceration before his court appearance was done in contravention of subsisting orders of the High Court it invalidated the plea taking process hence his objection before the Learned Trial Magistrate that he ought therefore not to take plea. This objection was dismissed by the Learned Magistrate.
8. Being aggrieved with the Ruling, the Appellant instituted the present Appeal vide a Petition of Appeal dated 30/06/2017 and premised on the following grounds;
i) The Honourable Principal Magistrate erred both in law and in fact in failing to appreciate that the constitutional mandate bestowed upon the Inspector-General of Police to investigate, charge a suspect cannot be exercised in a vacuum and that the same can only be carried out under the whims of the law.
ii) The Honourable Principal Magistrate erred both in law and in fact by ruling that the violation of the rights of the Appellant can only be compensated by way of suing for general damages.
iii) The Honourable Principal Magistrate erred both in law and in fact by failing to appreciate that the National Police Service had knowingly disobeyed explicit orders of the High Court made on the 11th day of April, 2017; a disobedience apparent on the face of the record, and that allowing the proceedings thereof to continue would amount to an abuse of the Court process.
iv) The Honourable Principal Magistrate erred both in law and in fact in failing to appreciate that acts of commission and omission of disobedience of a Court order by the National Police Service in execution of its mandate in effect rendered the whole trial null and void.
v) The Honourable Principal Magistrate erred both in law and in fact in failing to appreciate that the National Police Service had usurped the mandate of the Kenya Music Classification Board as laid down under Section 52,53 and 54 of the Films and Stage Plays Act 2017 and this rendered the whole process null and void.
vi) The Honourable Principal Magistrate erred both in law and in fact when he failed to rule in line with the rulings of the High Court and the Court of Appeal of Kenya whose precedents he is supposed to emulate and follow.
Hearing of the Appeal
9. The Appeal was canvassed by way of written submissions. The Appellant filed submissions dated 12/09/2023 whereas the state filed submissions dated 15/11/2024 through state counsel S. G Thuo.
Appellant’s submissions
10. In a nutshell, the Appellant submitted that the Trial Court erred in failing to appreciate that the constitutional mandate bestowed upon the Inspector-General of Police to investigate and charge a suspect cannot be exercised in a vacuum and that the same can only be carried out under the whims of the law.
11. He stated that the Ruling of Hon Justice Ogembo (sic)was very clear and the Appellant herein was released and his cash bond of 10,000/- which he had executed on 13th February, 2017 extended to the time he would appear in Court on 18th April, 2017. However, officers of the Inspector-General arrested and incarcerated him from 16th April, 2017 to 18th April, 2017.
12. The Appellant urged that this is a case where the police had detained the Appellant without trial contrary to Article 25 of the Constitution which article expressly forbids the incarceration of anyone without lawful cause, and stipulates that it is one of the violations that should not be visited upon anyone under any circumstances. It is a violation that should not be excused by anyone, including the Trial Magistrate.
13. The Appellant urged that detaining someone without good or probable cause amounts to cruel and inhuman treatment and is expressly forbidden by Article 25(a), 28 and 29 (a) & 29 (b) of the Constitution. Further, that once the rights of a person set out in the Constitution are proved to have been violated, the general jurisprudence is that the victim is acquitted. He urged that he prays the Court make a finding that the violation was enough ground to acquit and discharge him.
14. The Appellant submitted that Article 23(3) of the Constitution states that there are many reliefs which the Court can extend to a person whose rights and fundamental freedoms have been violated. These include a declaration of rights, an injunction, a conservatory order, an order of compensation, an order of judicial review and an invalidity of any law that goes against the express provisions of the Constitution. He stated that it is wrong for the state to say that the only remedy for a person whose constitutional rights and fundamental freedoms have been violated is a suit for damages.
15. On the disobedience of orders by the National police service, the Appellant submitted that once a Court order is given, everybody affected by it is supposed to obey it and act in conformity with it. The order made by Hon. Justice Ogembo was in terms that the Appellant herein was to go to Turbo Police Station on 18th April, 2017. He was not supposed to be abducted and incarcerated at Turbo Police Station on 16th April, 2017. Further, that he did not commit any offence that could oblige the good Chief Inspector of Police to apprehend and incarcerate him.
16. As such, the Inspector-General of Police had no mandate to go and apprehend the Appellant herein without any reason on 16th April, 2017. This was an act of contempt of Court and a gross violation of his rights under Article 25(a) Constitution. The Appellant therefore submitted that the failure by the National Police Service to obey the express orders given by Hon. Justice Ogembo was fatal to their case. No explanation has been given for such impunity and he prays the Court acquit and discharge him on this ground.
17. The Appellant urged that the Trial Court should have emulated the superior Courts whose rulings the Appellant herein has attached as authorities herein. To sum it up, the Honourable Magistrate should have acquitted the Appellant herein as soon as it was established that his rights had been infringed. He concluded by urging the Court to allow the Appeal and acquit him.
Respondents’ submissions
18. Learned counsel for the state vehemently opposed the petition of Appeal and urged the Court to dismiss the Preliminary Objection to plea taking that has been an issue perpetuated unsuccessfully by the Appellant before various Courts in Eldoret since 2017.
19. Further, that the proposed charges facing the Appellant of trafficking narcotic drugs contrary to Section 4 of the Narcotic Drugs and Psychotropic Substances (Control) Act and Broadcasting Film Production in Public Without a Licence Contrary to Section 12 (1) (3) of the Films Classifications Act are crimes known in law and that the ODPP is mandated under Article 157 of the Constitution to pursue.
20. He additionally stated that the ODPP Guidelines on the Decision to Charge 2019 have been met specifically on the Evidentiary Test, Public Interest and Reasonable Prospect of a Conviction have been satisfied. He pleaded with the Court that that Eldoret Criminal Case no 1636 of 2017 Republic vs Zakayo Henry Angoyia proceeds without much further ado.
Analysis & Determination
21. The requirements of a court exercising a first appellate jurisdiction was laid out by the Court of Appeal for Eastern Africa in Okeno vs. Republic (1972) EA 32 where it was stated thus:
“An Appellant on a first Appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the junction of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the Trial Court has had the advantage of hearing and seeing the witnesses, see (Peters V Sunday Post 1978) E.A. 424.”
22. Having considered the Appellant’s Appeal, the Response by the State and the submissions herein filed, it is my considered opinion that the issue for determination is;
• Whether the Appellant was arrested and incarcerated pending plea in violation of a subsisting order of the High Court
• Whether such an act of the Inspector General if at all would invalidate any plea taken as a consequence
23. I have considered the orders of Hon Mr. Justice Kimondo issued on 16th February 2017. The Hon Judge granted the Appellant anticipatory bail in the nature of a cash bail of Ks. 10,000/- and also issued orders expressly prohibiting the Investigating Officer at Turbo Police Station from detaining the Appellant without any further order of the Court. Subsequently, upon an Application by the Appellant, the Ho. Justice Kimondo recused himself from the matter and the same was thereafter handled by Hon Mr. Justice D. Ogembo.
24. I have perused the Ruling of Justice Ogembo and I note that on the face of it, the Hon Justice Ogembo did not issue any orders extending the orders issued by Justice Kimondo. Instead, the Hon Judge dismissed the Appellant’s Application and directed that he presents himself to the investigating Officer on 18th April 2017 for purposes of being presented before a court of competent jurisdiction to take plea if a decision to charge him had been made.
25. The above being the case, the position is that there was no order of the court that was breached to warrant the Appellant’s objection to taking the plea before the Trial Court. In this regard, I am satisfied that the Inspector General through the Investigating Officer was not in breach of any existing Court order when he arrested the Appellant on 16th April 2017 and caused him to appear in court on 18th April 2017 for plea taking.
26. I further find that the plea taking was not invalidated in any way and was also not irregular at all. I am therefore satisfied that the decision by the Learned Trial Magistrate to dismiss the Appellant’s objection to the plea taking on this ground was not at all in error and the same is accordingly upheld. On all the other issues raised in this Appeal, I completely associate myself with the finding of the Hon Mr. Justice D. Ogembo that they belong to the realm and purview of the hearing as they would require the taking of evidence and specific proof.
27. The upshot of the above then is that the Appellant’s Appeal is misconceived and lacks merit and the same is accordingly dismissed in its entirety. The decision to charge having been made by the DPP, the Appellant is to take plea before the Magistrate’s Court on a date and time that shall be decided by the Investigating Officer. Right of Appeal 14 days.
Read Dated and Signed at ELDORET on 9th July 2025
2. A brief recap of what transpired before the Trial Court is that the Appellant was charged with the offence of trafficking Narcotic Drugs contrary to Section 4 of the Narcotic Drugs and Psychotropic Substances (Control) Act and one count of Broadcasting Film Production in Public Without a License contrary to section 12(1)(3) of the film Classifications Act.
3. He then filed an application for anticipatory bail in the High Court vide Miscellaneous Application No. 15 of 2017 which application was granted by Hon Mr. Justice Kanyi Kimondo vide the orders of the Court issued on 16th February 2017 and he was admitted to an anticipatory cash bail of Ks. 10,000/- which he paid on 13th February 2017
4. The Appellant was subsequently arrested on 16th April 2017 and arraigned in court 0n 18th April 2017. On the date of plea, by way of a Preliminary Objection, the Appellant through his Counsel submitted that there were subsisting orders issued by the Hon Mr. Kanyi Kimondo that were subsequently extended by the Hon Mr. Justice D. Ogembo (as he then was) directed at the Inspector General of Police through the Investigating Officer Turbo Police Station restraining the Police from arresting and charging the Appellant in court.
5. That in the said order, the court directed that the Appellant presents himself to court on 18th April 2017 for the plea taking if at all the Investigating Officer was satisfied that he ought to be charged.
6. That however, in blatant contravention of this order, Officers of the Inspector-General of Police through Chief Inspector Sylvester Olao arrested him on 16th April 2017 and incarcerated until the 18th April 2017 inclusive when he was taken to court for plea.
7. It was his position that because this arrest and incarceration before his court appearance was done in contravention of subsisting orders of the High Court it invalidated the plea taking process hence his objection before the Learned Trial Magistrate that he ought therefore not to take plea. This objection was dismissed by the Learned Magistrate.
8. Being aggrieved with the Ruling, the Appellant instituted the present Appeal vide a Petition of Appeal dated 30/06/2017 and premised on the following grounds;
i) The Honourable Principal Magistrate erred both in law and in fact in failing to appreciate that the constitutional mandate bestowed upon the Inspector-General of Police to investigate, charge a suspect cannot be exercised in a vacuum and that the same can only be carried out under the whims of the law.
ii) The Honourable Principal Magistrate erred both in law and in fact by ruling that the violation of the rights of the Appellant can only be compensated by way of suing for general damages.
iii) The Honourable Principal Magistrate erred both in law and in fact by failing to appreciate that the National Police Service had knowingly disobeyed explicit orders of the High Court made on the 11th day of April, 2017; a disobedience apparent on the face of the record, and that allowing the proceedings thereof to continue would amount to an abuse of the Court process.
iv) The Honourable Principal Magistrate erred both in law and in fact in failing to appreciate that acts of commission and omission of disobedience of a Court order by the National Police Service in execution of its mandate in effect rendered the whole trial null and void.
v) The Honourable Principal Magistrate erred both in law and in fact in failing to appreciate that the National Police Service had usurped the mandate of the Kenya Music Classification Board as laid down under Section 52,53 and 54 of the Films and Stage Plays Act 2017 and this rendered the whole process null and void.
vi) The Honourable Principal Magistrate erred both in law and in fact when he failed to rule in line with the rulings of the High Court and the Court of Appeal of Kenya whose precedents he is supposed to emulate and follow.
Hearing of the Appeal
9. The Appeal was canvassed by way of written submissions. The Appellant filed submissions dated 12/09/2023 whereas the state filed submissions dated 15/11/2024 through state counsel S. G Thuo.
Appellant’s submissions
10. In a nutshell, the Appellant submitted that the Trial Court erred in failing to appreciate that the constitutional mandate bestowed upon the Inspector-General of Police to investigate and charge a suspect cannot be exercised in a vacuum and that the same can only be carried out under the whims of the law.
11. He stated that the Ruling of Hon Justice Ogembo (sic)was very clear and the Appellant herein was released and his cash bond of 10,000/- which he had executed on 13th February, 2017 extended to the time he would appear in Court on 18th April, 2017. However, officers of the Inspector-General arrested and incarcerated him from 16th April, 2017 to 18th April, 2017.
12. The Appellant urged that this is a case where the police had detained the Appellant without trial contrary to Article 25 of the Constitution which article expressly forbids the incarceration of anyone without lawful cause, and stipulates that it is one of the violations that should not be visited upon anyone under any circumstances. It is a violation that should not be excused by anyone, including the Trial Magistrate.
13. The Appellant urged that detaining someone without good or probable cause amounts to cruel and inhuman treatment and is expressly forbidden by Article 25(a), 28 and 29 (a) & 29 (b) of the Constitution. Further, that once the rights of a person set out in the Constitution are proved to have been violated, the general jurisprudence is that the victim is acquitted. He urged that he prays the Court make a finding that the violation was enough ground to acquit and discharge him.
14. The Appellant submitted that Article 23(3) of the Constitution states that there are many reliefs which the Court can extend to a person whose rights and fundamental freedoms have been violated. These include a declaration of rights, an injunction, a conservatory order, an order of compensation, an order of judicial review and an invalidity of any law that goes against the express provisions of the Constitution. He stated that it is wrong for the state to say that the only remedy for a person whose constitutional rights and fundamental freedoms have been violated is a suit for damages.
15. On the disobedience of orders by the National police service, the Appellant submitted that once a Court order is given, everybody affected by it is supposed to obey it and act in conformity with it. The order made by Hon. Justice Ogembo was in terms that the Appellant herein was to go to Turbo Police Station on 18th April, 2017. He was not supposed to be abducted and incarcerated at Turbo Police Station on 16th April, 2017. Further, that he did not commit any offence that could oblige the good Chief Inspector of Police to apprehend and incarcerate him.
16. As such, the Inspector-General of Police had no mandate to go and apprehend the Appellant herein without any reason on 16th April, 2017. This was an act of contempt of Court and a gross violation of his rights under Article 25(a) Constitution. The Appellant therefore submitted that the failure by the National Police Service to obey the express orders given by Hon. Justice Ogembo was fatal to their case. No explanation has been given for such impunity and he prays the Court acquit and discharge him on this ground.
17. The Appellant urged that the Trial Court should have emulated the superior Courts whose rulings the Appellant herein has attached as authorities herein. To sum it up, the Honourable Magistrate should have acquitted the Appellant herein as soon as it was established that his rights had been infringed. He concluded by urging the Court to allow the Appeal and acquit him.
Respondents’ submissions
18. Learned counsel for the state vehemently opposed the petition of Appeal and urged the Court to dismiss the Preliminary Objection to plea taking that has been an issue perpetuated unsuccessfully by the Appellant before various Courts in Eldoret since 2017.
19. Further, that the proposed charges facing the Appellant of trafficking narcotic drugs contrary to Section 4 of the Narcotic Drugs and Psychotropic Substances (Control) Act and Broadcasting Film Production in Public Without a Licence Contrary to Section 12 (1) (3) of the Films Classifications Act are crimes known in law and that the ODPP is mandated under Article 157 of the Constitution to pursue.
20. He additionally stated that the ODPP Guidelines on the Decision to Charge 2019 have been met specifically on the Evidentiary Test, Public Interest and Reasonable Prospect of a Conviction have been satisfied. He pleaded with the Court that that Eldoret Criminal Case no 1636 of 2017 Republic vs Zakayo Henry Angoyia proceeds without much further ado.
Analysis & Determination
21. The requirements of a court exercising a first appellate jurisdiction was laid out by the Court of Appeal for Eastern Africa in Okeno vs. Republic (1972) EA 32 where it was stated thus:
“An Appellant on a first Appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the junction of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the Trial Court has had the advantage of hearing and seeing the witnesses, see (Peters V Sunday Post 1978) E.A. 424.”
22. Having considered the Appellant’s Appeal, the Response by the State and the submissions herein filed, it is my considered opinion that the issue for determination is;
• Whether the Appellant was arrested and incarcerated pending plea in violation of a subsisting order of the High Court
• Whether such an act of the Inspector General if at all would invalidate any plea taken as a consequence
23. I have considered the orders of Hon Mr. Justice Kimondo issued on 16th February 2017. The Hon Judge granted the Appellant anticipatory bail in the nature of a cash bail of Ks. 10,000/- and also issued orders expressly prohibiting the Investigating Officer at Turbo Police Station from detaining the Appellant without any further order of the Court. Subsequently, upon an Application by the Appellant, the Ho. Justice Kimondo recused himself from the matter and the same was thereafter handled by Hon Mr. Justice D. Ogembo.
24. I have perused the Ruling of Justice Ogembo and I note that on the face of it, the Hon Justice Ogembo did not issue any orders extending the orders issued by Justice Kimondo. Instead, the Hon Judge dismissed the Appellant’s Application and directed that he presents himself to the investigating Officer on 18th April 2017 for purposes of being presented before a court of competent jurisdiction to take plea if a decision to charge him had been made.
25. The above being the case, the position is that there was no order of the court that was breached to warrant the Appellant’s objection to taking the plea before the Trial Court. In this regard, I am satisfied that the Inspector General through the Investigating Officer was not in breach of any existing Court order when he arrested the Appellant on 16th April 2017 and caused him to appear in court on 18th April 2017 for plea taking.
26. I further find that the plea taking was not invalidated in any way and was also not irregular at all. I am therefore satisfied that the decision by the Learned Trial Magistrate to dismiss the Appellant’s objection to the plea taking on this ground was not at all in error and the same is accordingly upheld. On all the other issues raised in this Appeal, I completely associate myself with the finding of the Hon Mr. Justice D. Ogembo that they belong to the realm and purview of the hearing as they would require the taking of evidence and specific proof.
27. The upshot of the above then is that the Appellant’s Appeal is misconceived and lacks merit and the same is accordingly dismissed in its entirety. The decision to charge having been made by the DPP, the Appellant is to take plea before the Magistrate’s Court on a date and time that shall be decided by the Investigating Officer. Right of Appeal 14 days.
Read Dated and Signed at ELDORET on 9th July 2025