[2010] KEHC 3809 (KLR)
The court held that there is no provision in Kenyan law empowering the High Court to order the arrest and release of a person in anticipation of arrest. The relevant sections of the Criminal Procedure Code only allow for bail after a person has been arrested or charged, not before. The court further held that it...
Source-derived case information.
- Citation
- [2010] KEHC 3809 (KLR)
- Parties
- Applicant: David Kiplagat Tum; Respondent: Divisional Criminal Investigations Officer (DCIO); Respondent: Commissioner of Police; Respondent: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 6 of 2010
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Chamber Summons for Anticipatory Bail
- Outcome
- Application for anticipatory bail dismissed; conditional order for release on police bond if arrested for a bailable offence.
- Judges
- JL Osiemo
- Legal Topics
- Anticipatory Bail, Police Powers, Arrest Without Warrant, Bailable Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kiplagat Tum
Applicant
Divisional Criminal Investigations Officer (DCIO)
Respondent
Commissioner of Police
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Chamber Summons for Anticipatory Bail
Legal Issues
- 1 Whether the High Court has jurisdiction to order the arrest and release of the applicant pending arrest.
- 2 Whether the applicant is entitled to anticipatory bail or protection from arrest by the police.
- 3 Whether the police can be restrained from investigating the applicant if they have reasonable suspicion of an offence.
Ratio Decidendi
The court held that there is no provision in Kenyan law empowering the High Court to order the arrest and release of a person in anticipation of arrest. The relevant sections of the Criminal Procedure Code only allow for bail after a person has been arrested or charged, not before. The court further held that it cannot prevent the police from conducting investigations if they have reasonable suspicion that an offence has been committed. However, the court directed that if the applicant is arrested and charged with a bailable offence, he should be released on police bond and required to appear in court as directed by the police. Thus, anticipatory bail or protection from arrest was not...
Court Disposition
Application for anticipatory bail dismissed; conditional order for release on police bond if arrested for a bailable offence.
Orders
- If the applicant is arrested and charged, he should be released on police bond if the offence is bailable and to appear in court on a date as directed by the police.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Miscellaneous Criminal Application 6 of 2010
DAVID KIPLAGAT TUM ………….…………….…….. APPLICANT
VERSUS
DIVISIONAL CRIMINAL INVESTIGATIONS
OFFICER (DCIO) ………………………..…….. 1ST RESPONDENT
COMMISSIONER OF POLICE …….....…….. 2ND RESPONDENT
THE HON. ATTORNEY GENERAL …..…….. 3RD RESPONDENT
R U L I N G
Before me is an application by way of Chamber Summons brought by the applicant under Section 3 of the Criminal Procedure Code and Section 123 (1) of the Criminal Law Amendment Act 2003 and all the enabling provisions of the law for orders:-
(1) That this application be certified as urgent and service be dispensed with in the first instance due to reasons of urgency.
(2) That this honourable Court be inclined to arrest and order the release of the applicant herein DAVID KIPLAGAT TUM pending arrest.
(3) That costs be provided for.
In support of the application David Kiplagat Tum has sworn an affidavit giving grounds. The application is brought under Section 39 and 123 of the Criminal Procedure Code. These Sections are applicable under the assumption that a cognizable offence has been committed.
Section 39 provides:-
“A Magistrate may at any time arrest or direct the arrest in his presence within the local limits of his jurisdiction of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.”
While Section 123 (1) provides:-
“1” When a person other than a person accused of
murder, treason, robbery with violence, attempted robbery with violence and any related offence is arrested or detained without warrant by any officer in charge of a Police Station, or appears or is brought before a Court and is prepared at any time while in custody of that officer or at any stage of the proceedings before that Court to give bail that person may be admitted to bail.
Provided that the officer or court, instead of taking bail from that person, release him on his executing a bond without sureties for his appearance as provided thereafter in this part.
“3” The High Court may in any case direct that an accused person be admitted to bail or that bail required by a Subordinate Court or police officer be reduced.
There is no provision in our statutes which empowers the High Court to arrest any person and even if there was the Court must satisfy itself that a cognizable offence has been committed before arrest.
All that the applicant is after is anticipatory protection in the event he may be arrested but the Court cannot prevent the police from carrying out their investigations if they have reasonable suspension that an offence has been committed. The police ought to do their investigations and in case they come to the conclusion that an offence has been committed, the applicant can be arrested and charged.
I order that in the event he is arrested and charged he should be released on police bond if the offence is bailable and to appear in Court on a date as directed by the police.
Those are the orders of this Court.
DATED AND DELIVERED AT ELDORET THIS 11TH DAY OF FEBRUARY, 2010.
J. L. A. OSIEMO
JUDGE