[2017] KEHC 1264 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

MISCELLANOUS CRIMINAL APPLICATION NO. 72 OF 2017

IN THE MATTER OF AN APPLICATION FOR ANTICIPATORY BAIL

AND

IN THE MATTER OF AN APPLICATION UNDER ARTICLES 22, 25, 28, 47(2), 49(1), 165(3) AND 244 (c) OF THE CONSTITUTION OF KENYA

ANGELINA MUMBUA MUTUKU........................................................1ST APPLICANT

GRACE NZISA ARUM………………................................................2ND APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE..............................................1ST RESPONDENT

DIRECTORATE OF PUBLIC PROSECUTION...............................2ND RESPONDENT

RULING

The Applicants filed an application by way of a Notice of Motion dated 23rd August 2017 seeking orders that they be admitted on anticipatory bail on such reasonable terms and conditions that this Court deems fit pending arrest, investigations and/or charges by the Respondents. The application is supported by an affidavit sworn on 23rd August 2017 by the 2nd Applicant.

The Applicants in the detailed affidavit explained the genesis of the predicament they are facing. The two Applicants are directors of Top Real Estate Solutions Ltd and are selling agents of a vendor of land, which land was found to be the subject of double allocation from the original allotees, who allocated the land to the vendor and another person.

Upon reporting the alleged double allocation to Machakos Police Station, the Applicants alleged that the District Criminal Investigation Office (DCIO) attempted to extort money from them, told them to pay cash bail of 50,000/= for which they were issued with receipts for lesser sums, and upon inquiry, they were threatened to confinement in the police cells and forced to enter into an agreement to refund the purchase price to the buyers and seller.

Further, that upon trying to resolve the issue of double allocation with the original allotee, the DCIO also summoned the said allottee and informed it that they were preferring charges of obtaining money by false pretences against the Applicant. The Applicants stated that they had made a complaint against the DCIO with the Independent Policing Authority, a copy of which was attached.

The Applicants are therefore under a reasonable apprehension of arbitrary arrest and on bogus charges, and aver that they are ready to cooperate with the Respondents in any investigations and report to court if is so required.

The Applicants’ application was heard on 13th September 2017, during which the learned Prosecution counsel, Mr. Machogu, indicated that he would make oral submissions on points of law, and that the Respondents would not be filing a replying affidavit.

Mr. Kyengo, the learned counsel for the Applicants, averred in his oral submissions that they were seeking anticipatory bail for reasons of breach of the fundamental rights of the Applicants, in that the Respondents had breached Articles 28 and 29 of the Constitution, and the Applicants are apprehensive that their rights to security of the person will be breached based on charges which the Respondents have not investigated. Reliance was placed on the decision in Richard Makhanu vs Republic (2014) e KLR. In addition that the police bonds given to the Applicants were fictitious as there were no charges preferred against them to warrant bond, and no investigations had been conducted.

Mr. Machogu on his part relied on Article 49(h) of the Constitution on the rights of an accused person to be released on bail, and submitted that the documents attached by the Applicants show that they were released on a cash police bail, and there is no risk of threat to their fundamental rights.

I have considered the Applicants’ application and note that anticipatory bail is usually granted where there is alleged to be serious breaches by a state organ as held in W’Njuguna versus Republic, [2004] 1 KLR 520,which was also cited in Richard Makhanu vs Republic (2014) e KLR.This Court in addition has powers to grant such anticipatory bail pursuant to Article 49 (1) (h) of the Constitution, whereby this court may release a person who has been arrested on bail or bond pending a charge or trial unless there are compelling reasons not to be released. Furthermore, under Article 23 (1), this court is authorized to hear and determine applications that relate to a denial, violation or infringement of or a threat to a right or fundamental freedom in the bill of rights.

The Applicants have in this regard alleged that Articles 28 and 29 of the Constitution have been reached by the Respondents. The said Articles provide as follows:

“28. Every person has inherent dignity and the right to have that dignity respected and protected.

29. 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;

(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;

(c) subjected to any form of violence from either public or private sources;

(d) subjected to torture in any manner, whether physical or psychological;

(e) subjected to corporal punishment; or

(f) treated or punished in a cruel, inhuman or degrading manner.”

The Applicants produced copies of the cash bail receipt issued to them on 7th July 2017 in which it is indicated that the charge against them is that of obtaining by false pretenses. The Respondents did not produce any evidence of any complainant made against the Applicants in this regard, or of any such charge preferred against the Applicants. It is also notable that the Respondents have not disputed the facts narrated by the Applicants.

There is obviously an irregularity in this regard in requiring the Applicants to pay cash bail when no charges have been preferred against them, and I find that their rights to property and security of the person have been breached, and that the Applicants’ apprehension of continued breach has reasonable basis. The Applicants have therefore satisfied the threshold for the grant of the anticipatory bail.

The Applicants’ Notice of Motion dated 23rd August 2017 is therefore found to have merit, and the 1st and 2nd Applicants are granted anticipatory bail on the following conditions:

1. The Respondents shall forthwith refund to the Applicants the cash bail of Kshs 20,000/= each of the Applicants paid on 7th July 2017, as evidenced by the receipts produced in Court

2. The Applicants shall present themselves before the police when summoned, either in person or accompanied by his lawyer, for the purposes of assisting the police with investigations.

3. The Applicants shall attend Court if and when required to do so.

Orders accordingly.

DATED AT MACHAKOS THIS 2ND DAY OF OCTOBER 2017.

P. NYAMWEYA

JUDGE