https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7565

Mutuku v Office of the Director of Public Prosecutions & 3 others; Limited (Kcb (Interested Party) (Criminal Miscellaneous Application E030 of 2026) [2026] KEHC 7565 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7565 (KLR) Republic of Kenya In the High Court at Machakos Criminal Miscellaneous Application E030 of 2026 EN Maina, J May 29, 2026 Between Cornelius Kimeu Mutuku Applicant and Office of the Director of Public Prosecutions 1st Respondent Inspector General of Police 2nd Respondent The Director of Criminal Investigations 3rd Respondent and Kenya Commercial Bank Limited (KCB) Interested Party and Limited (Kcb Interested Party Ruling 1.By the Notice of Motion dated 15th April 202 the Applicant seeks orders as follows:-“(1)Spent(2)This court to admit the Applicant to anticipatory bail or bail pending arrest or charge on such terms as the court may deem fit.(3)This court to admit or appoint and or grant the Applicant to anticipatory bail or bail pending arrest for any bailable offence consequent or arising from the alleged complaint by the interested party touching on property Land Reference Number LR. No. 8786 and 8784/654 Plan No. 2835/2836 Plot No.206/IP ND 205 IP.(4)This court to issue a conservatory order restraining the respondents, their servants, agents, junior officers and/or anybody from effecting and/or anybody from arresting, harassing or otherwise interfering with the Applicant herein pending the hearing and determination of this application in the matters related to property Land Reference Number LR. No. 8786 and 8784/654 Plan No. 2835/2836 Plot No.206/IP ND 205 IP.(5)This court to issue a conservatory order restraining the respondents, their servants, juniors, officers and/or anybody whosoever acting under their directions or departments or offices from arresting, harassing or otherwise interfering with the applicant herein pending the hearing and determination of this application; or(6)The 3rd respondent to be ordered to expedite and/or conclude investigations on the matters reported by the interested party relating to the acquisition and ownership of property Land Reference Number LR. No. 8786 and 8784/654 Plan No. 2835/2836 Plot No.206/IP ND 205 IP.(7)The respondent be prohibited from releasing to the media any further adverse information regarding the alleged investigations touching on property Land Reference 209/2098 against the Applicant.(8)That the Respondent whether acting by themselves, their agents, representatives and/or all other officers subordinate to them be restrained from summoning, arresting, holding, detaining, incarcerating and/or in any other way interfering with the Applicant’s liberty and/or in any other way without following the due process of the law in matters related to property LR. No. 8786 and 8784/654 Plan No. 2835/2836 Plot No.206/IP ND 205 IP pending the inter-partes hearing and determination of this application.(9)A day be appointed by court for the Applicant to appear before the police officers attached to Athi River police station Mavoko Sub-County or any other officer together with his counsel to enable the police undertake normal procedures including charge or caution of necessary and any other necessary matter without the Applicant being confined into custody.(10)Other order and/or directions as this court deems fit and just to grant.(11)The costs of this application be provided for. 2.The application is supported by an affidavit sworn by the Applicant on 15th April 2026. In that affidavit the Applicant depones that he owns certain properties which are the subject of dispute between him and the interested party; that the interested party has on various occasions sent agents to demolish his structures on the property; that there is a process for normalization of land owned by the interested party and the Applicant has made substantial payments towards that end; that he together with his family have however received threats of arrest for an unknown offence; that for that reason he has had to restrict his movements and is apprehensive of losing his parliamentary seat and should this court fail to grant him anticipatory bail his right to liberty may be violated despite his innocence not having been impugned by a competent court of law. 3.He further depones that he acquired the property lawfully and adhered to all the requisite process such as execution of sale agreement, terms and conditions and obtaining approval from KCB agents, paying KCB and obtaining receipts; that he is apprehensive that the interested party is using the police service to dispossess him of this legally acquired property through the criminal justice system and that the intended arrest and/or prosecution by the police is for extraneous purposes intended to settle personal vendetta and political scores and that he is ready and willing to present himself before the court or police whenever required to do so. 4.On 21st April 2026, the 1st Respondent filed a replying affidavit sworn by Pc Bornface Misita, a police officer attached to Athi River Police Station. He has deponed that he has been investigating a case of trespass upon private property reported by the interested party’s manager one Jackson Wambua; that in the course of investigations he recorded witness statements from various witnesses and gathered documentary evidence; that he then forwarded the file to the 1st Respondent’s office at Mavoko; that upon review of the file the 1st Respondent gave him the go ahead to charge the Applicant; that he reached the Applicant through his telephone number 07XXXXXX36; that the reason for this was so that the Applicant could go and record his statement but the Applicant did not go to the station and he has since then put off his phone. Further, that the allegations that the Applicant is being threatened and harassed are untrue; that the Applicant admits to hiding to evade arrest, but that should the Applicant be arraigned in court he shall have a right to be granted bail or bond pending hearing but that as it is the matter has stalled due to his disappearance. He also submits that other issues raised by the Applicant fall out of the ambit of this application and reiterates that none of the Respondents have threatened the Applicant on social media and the arrest is not intended to settle personal scores and neither is it politically instigated. He concludes by stating that the application is incompetent, misconceived, misinformed and an abuse of the court process and should be dismissed. 5.On 28th April 2024, this court gave directions that the application would be canvassed through written submissions and fixed a date for the ruling – 14th May 2026. However, by that date no submissions had been uploaded and upon application by Counsel for the Applicant this court enlarged the time for filing the submissions. This court has since received the submissions of the Applicant but those of the Respondents were not filed. 6.Having read the application, the affidavit and the submissions on record, I can say that the issue for determination is whether or not the Applicant ought to be granted bond pending arrest. Analysis and determination 7.I have carefully considered the application, the supporting affidavit, the replying affidavit and submissions on record. Anticipatory bail, as has often been held, is not expressly been provided for in our law. It is however an order granted by the court as a safeguard against the violation of the persons who appear before them. It is a power which is purely in the discretion of the court. Such discretion is to be exercised judicially and within known legal principles. It is never granted at a whim or denied capriciously. The person coming before the court must satisfy it that he/she is deserving of the order: that their rights and freedoms are threatened or are at a real risk of being violated. 8.The Applicant herein alleges that he is being witch-hunted for what he refers to as property which he lawfully acquired – whether that is true or not - is definitely not within the ambit of this court or this application. On the other hand, PC Bornface Misita depones that he has been investigating a complaint by the Interested Party herein and has obtained a recommendation to charge the Applicant but that the Applicant has gone into hiding to evade summons requiring him to record a statement in regard to the investigations. 9.Anticipatory bail ought not to be granted to aid a party to avoid being investigated. On the other hand the court has a duty to protect the rights and fundamental freedoms of and if anticipatory bail would aid in so doing then it should be granted. This court is called to balance the need to protect the citizen’s rights and fundamental freedoms and the duty of the police to investigate crime and also to arraign suspects for crimes committed. This requires a tight balancing act which must also guard against abuse of the court process. 10.Taking all the circumstances into account, I am persuaded that the Applicant is deserving of the order sought so as to safeguard his liberties guaranteed in the Constitution. However, in order to balance this with the duty of the police to carry out investigations into complaints brought to them by other citizens, I make orders as follows:a.That the Applicant be and is hereby admitted to anticipatory bail in the sum of Kshs.100,000/- to be deposited in court within 48 hours of this order.b.That the Applicant shall within five (5) days of this order surrender himself, whether alone or in company with his Advocate, to Athi River Police Station or to any police facility as he may be required by the investigating officer, to record a statement in regard to the matter being investigated by PC Bornface Misita.c.Thereafter, and the Applicant having deposited the cash bail of Kshs.100,000/- in court as in (a) above, he shall not be arrested and should any charges be preferred in relation to the matter, he shall be summoned to appear in court for plea taking (without being arrested).d.Once arraigned in court the anticipatory bail granted herein shall lapse.e.The anticipatory bail shall not extend to any matter other than what is before this court presently.Orders accordingly. RULING SIGNED, DATED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 29TH DAY OF MAY, 2026.E. N. MAINAJUDGEIn the presence of:Mr. Musungu for ApplicantMr. Maiga for interested partyNo appearance for ODPPMary - Court Assistant/Interpreter