Kenya Judgment

High Court · High Court at Nairobi (Milimani Law Courts)

Christopher Kyalo Muthama v Republic [2017] KEHC 9560 (KLR)

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Source document

01

Holding and result

The court found that since the applicant was already on police bond and the respondent had no intention to charge him until investigations were complete, there was no real or imminent threat to the applicant's liberty that would justify the grant of anticipatory bail. The application was therefore deemed an abuse of the court process. The court emphasized that the law provides adequate mechanisms to safeguard the applicant's fundamental rights should he be charged in the future. Accordingly, the application was dismissed as unmeritorious.

Court disposition

application dismissed

Orders

  • The application for anticipatory bail is dismissed.
  • No orders as to costs.

02

Material facts

Parties

Christopher Kyalo Muthama

Applicant Counsel: Mr. Seda

Republic

Respondent Counsel: M/s Sigei

03

Procedural history

  1. Posture

    Miscellaneous Application / Ruling on Anticipatory Bail Application

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant seeks anticipatory bail on the basis of apprehension of arrest and possible infringement of his fundamental rights. He argues that granting anticipatory bail is necessary to safeguard his liberty pending investigations and any potential charges.
Respondent
The respondent submits that the applicant is already on police bond and there is no intention to charge him until investigations are complete. The respondent contends that the application is premature and constitutes an abuse of the court process.

05

Court’s reasoning

  1. 01

    Kenyan constitutional jurisprudence on anticipatory bail.

    Anticipatory bail is granted to protect an individual's right to liberty where there is a real and imminent threat of arrest and infringement of fundamental rights.

  2. 02

    Court's inherent jurisdiction and practice directions.

    Where an applicant is already on police bond and there is no imminent threat of arrest, an application for anticipatory bail is unmeritorious and may amount to abuse of process.

06

Ratio, limits and disposition

Ratio decidendi

The court found that since the applicant was already on police bond and the respondent had no intention to charge him until investigations were complete, there was no real or imminent threat to the applicant's liberty that would justify the grant of anticipatory bail. The application was therefore deemed an abuse of the court process. The court emphasized that the law provides adequate mechanisms to safeguard the applicant's fundamental rights should he be charged in the future. Accordingly, the application was dismissed as unmeritorious.

Obiter and limits

  • Applicants should await the completion of investigations and utilize existing legal mechanisms if charged.

Court disposition

application dismissed

  • The application for anticipatory bail is dismissed.
  • No orders as to costs.

Source and reliance status

High Court

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Judgment reading view

Judgment text

The complete available source text.

Source document

High Court

Judgment

[2017] KEHC 9560 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CR. APPLICATION NO 294 OF 2017

CHRISTOPHER KYALO MUTHAMA…..……..………APPLICANT

VERSUS

REPUBLIC …………………………………………..…RESPONDENT

RULING

I have considered the respective submissions by the respective counsel. In the Notice of Motion dated 28th September, 2017, the Applicant prays to be admitted to anticipatory bail pending either his arrest or being charged in a court of law. He has sworn the affidavit in support of the application.

Under paragraph 14 of the said affidavit, the Applicant depones that he is already on police bond. This vindicates the Respondent’s submissions that the Respondent does not wish to charge the Applicant until the investigations are complete. Since the Applicant has been granted police bond, I find this application an abuse of the court process. He should await the completion of investigations and if the police decide to charge him, the law provides for mechanisms by which his fundamental right to freedom shall be safeguarded. The application is unmeritorious and I accordingly dismiss it with no orders on costs.

DATED and DELIVERED this 12thday ofOctober, 2017.

G.W. NGENYE-MACHARIA

JUDGE

In the presence of:

1. Mr. Seda for the Applicant absent

2. M/s Sigei for the 1st and 2nd Respondent

3. Mr. Nikuli for the 3rd Respondent

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