[2025] KEHC 279 (KLR)
The court found that the applicant had demonstrated a real and imminent threat to his right to liberty as protected under Article 29 of the Constitution. The court emphasized that its role at this ex parte stage was not to interrogate the genuineness of the applicant's apprehensions but to ensure that constitutional...
Source-derived case information.
- Citation
- [2025] KEHC 279 (KLR)
- Parties
- Applicant: Ali Hussein Ali; Respondent: Office of the Director of Public Prosecutions; Respondent: Directorate of Criminal Investigations; Respondent: National Police Service Commission; Respondent: Independent Policing Oversight Authority
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E005 of 2025
- Procedural Posture
- Miscellaneous Criminal Application / Ex Parte Anticipatory Bail Application
- Outcome
- application for anticipatory bail granted
- Judges
- DR Kavedza
- Legal Topics
- Anticipatory Bail, Right to Liberty, Arbitrary Arrest, Constitutional Rights Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Hussein Ali
Applicant
Office of the Director of Public Prosecutions
Respondent
Directorate of Criminal Investigations
Respondent
National Police Service Commission
Respondent
Independent Policing Oversight Authority
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ex Parte Anticipatory Bail Application
Legal Issues
- 1 Whether the applicant is entitled to anticipatory bail on the grounds of threatened arrest and harassment by law enforcement.
- 2 Whether the threat to the applicant's liberty is real or merely apprehended.
- 3 Whether the court should intervene to protect the applicant's constitutional rights before any formal charge is preferred.
Ratio Decidendi
The court found that the applicant had demonstrated a real and imminent threat to his right to liberty as protected under Article 29 of the Constitution. The court emphasized that its role at this ex parte stage was not to interrogate the genuineness of the applicant's apprehensions but to ensure that constitutional rights and fundamental freedoms are protected. The court held that anticipatory bail is available as a constitutional remedy where there is a credible threat of arbitrary arrest or detention, even in the absence of formal charges. The court was satisfied that unless anticipatory bail was granted, the applicant's right to liberty would be compromised. Accordingly, the applicant...
Court Disposition
application for anticipatory bail granted
Orders
- The applicant is admitted to anticipatory bail in the sum of Kshs. 50,000 to be deposited in court.
- Respondents may investigate or charge the applicant but shall not arrest or detain him in view of the anticipatory bail or until further orders of the court.
Full Case Text
Judgment text and source record
30 paragraphs
Ali v Office of the Director of Public Prosecutions & 3 others (Miscellaneous Criminal Application E005 of 2025) [2025] KEHC 279 (KLR) (22 January 2025) (Ruling)
Neutral citation: [2025] KEHC 279 (KLR)
Republic of Kenya
In the High Court at Kibera
Miscellaneous Criminal Application E005 of 2025
DR Kavedza, J
January 22, 2025
Between
Ali Hussein Ali
Applicant
and
Office of the Director of Public Prosecutions
1st Respondent
Directorate of Criminal Investigations
2nd Respondent
National Police Service Commission
3rd Respondent
Independent Policing Oversight Authority
4th Respondent
Ruling
1. The applicant filed the notice of motion 13th December 2024 seeking orders of anticipatory bail. The application is supported by an affidavit sworn by the applicant of similar date.
2. The Applicant contends that a civil dispute arose with the complainant over a botched sale of aircrafts parts. That the complainant used his network to influence and report the applicant at Wilson Airport Police station. Since the report was made police officers have been harassing him and there is imminent risk of arrest. No charges have been preferred against him despite the continued intimidation and harassment by law enforcement. The police have warned him against travelling outside the country and have threatened to take his identification documents.
3. The Applicant believes that any such arrest would be arbitrary and would infringe upon his rights. He therefore seeks protection from these arbitrary and unjust actions.
4. At this juncture, the duty of this court is not to interrogate whether the applicant’s apprehensions are genuine but rather, to protect his constitutional rights and fundamental freedoms guaranteed to all persons.
5. Article 49(1) of the Constitution states that an arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling persons not to be released. While the right to anticipatory bail or bond pending arrest is not specifically provided for by statute, there is no lacuna in the Constitution.
6. Moreover, Article 22(1) of the Constitution states 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, infringed, or threatened. The said article does not discriminate against parties seeking orders of anticipatory bail.
7. Before issuance of such an order, the court must be convinced that the threat is real and not just mere apprehension. The applicant asserts that he faces continued intimidation by law enforcement over his legal representation of the accused persons in court. He maintains that unless the reliefs sought are granted, his rights will be unjustly curtailed.
8. At this ex parte stage, I am only supposed to be satisfied, which I am, that unless the orders sought are granted, the applicant’s right to liberty under Article 29 of the Constitution will be compromised.
9. Having considered the application, the supporting affidavit of the applicant, and the annexures thereto, I hereby order as follows:i.The applicant herein is admitted to anticipatory bail in the sum of Kenya Shillings Fifty Thousand (Kshs. 50,000) to be deposited in court.ii.For the avoidance of doubt, the respondents are at liberty to investigate or charge the applicant for any criminal conduct. However, they shall not arrest or detain the Applicant in view of order (i) above or until further orders of the court.iii.The applicant’s advocates are further directed to escort the applicant to the offices of the 2nd respondent for questioning and/or interrogation within seven (7) days from the date hereof and not later than 31st January 2025. iv.Upon the conclusion of investigations, and if a decision to charge the applicant has been made, the respondents shall not arrest or detain the applicant but he shall be informed of the court where he is to appear for plea taking.v.Order (iv) shall remain in force until plea has been taken and the trial court has set new bail/bond terms in which case the orders of this court shall lapse.
RULING DATED AND DELIVERED VIRTUALLY ON THIS 22ND DAY OF JANUARY 2025. D. KAVEDZAJUDGE