[2009] KEHC 1521 (KLR)
The court held that the applicant's apprehension of arrest was speculative and not supported by any evidence of imminent violation of his rights. The right to liberty, while fundamental, is subject to lawful limitations, including arrest and due process. The court emphasized that granting anticipatory bail in the...
Source-derived case information.
- Citation
- [2009] KEHC 1521 (KLR)
- Parties
- Applicant: Ali Abdalla Mwandemba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 79 of 2009
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Anticipatory Bail
- Outcome
- application dismissed
- Judges
- JV Juma
- Legal Topics
- Anticipatory Bail, Right to Liberty, Police Powers, Due Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ali Abdalla Mwandemba
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Anticipatory Bail
Legal Issues
- 1 Whether the applicant is entitled to anticipatory bail or bond before arrest.
- 2 Whether the court should intervene to restrain the police from exercising their investigative mandate.
Ratio Decidendi
The court held that the applicant's apprehension of arrest was speculative and not supported by any evidence of imminent violation of his rights. The right to liberty, while fundamental, is subject to lawful limitations, including arrest and due process. The court emphasized that granting anticipatory bail in the absence of clear evidence of abuse would unduly interfere with the police's constitutional and statutory mandate to investigate crimes. Therefore, the application for anticipatory bail was dismissed as premature and unmerited.
Court Disposition
application dismissed
Orders
- The application for anticipatory bail is dismissed in its entirety.
- Costs to be met by the applicant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA Criminal Miscellaneous Application 79 of 2009
IN THE MATTER OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA
ALI ABDALLA MWANDEMBA ……….……………...…….. APPLICANT
VERSUS
REPUBLIC ……………………………………………….. RESPONDENT
************************
RULING
The Applicant herein has come before this court seeking inter alia the following orders:-
“2 THAT this Honourable court be pleased to order and direct that the Applicant herein be admitted to bond and/or bail pending arrest upon the Applicant executing personal bond and to attend before the Honourable court or other court whenever summoned to do so and/or further orders from the Honourable court”.
Mr. Onjoro for the Applicant argues in his submissions before me that the Applicant is apprehensive that following investigations by the police his right to liberty may be about to be violated. The police in this country are mandated to investigate any crime and are equally mandated to take appropriate action against persons whom they reasonably suspect of involvement in any offence. It would not bode well for this mandate if this court allowed itself to be used to muzzle the police. The Applicant indeed has a right to liberty but this is not an absolute right. There are certain lawful situations where one (including the Applicant) may be deprived of his liberty. In my view the Applicant’s apprehensions are misplaced. If indeed he is ever arrested and charged then he will be accorded due process and may secure his liberty through the courts. I am reluctant to interfere or to act in such a manner as to muzzle the police in performing their duties. As such I decline to grant the orders sought herein. I dismiss this present application in its entirety. Costs to be met by the Applicant.
Dated and delivered at Mombasa this 30th day of September 2009.
M. ODERO
JUDGE
Read in open court
No appearance by either party
M. ODERO
JUDGE
30. 9.2009