https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/234

DCI Kuresoi North v Alfred (Miscellaneous Criminal Application E677 of 2026) [2026] KEMC 234 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEMC 234 (KLR) Republic of Kenya In the Nakuru Law Courts Miscellaneous Criminal Application E677 of 2026 VO Adet, SPM June 23, 2026 Between DCI Kuresoi North Applicant and Hon. Mutai Kiprono Alfred Respondent Ruling 1.This is a ruling in respect of Notice of Motion Application dated 23rd June 2026 brought pursuant to Article 49(1)(f) and (g) of the Constitution of Kenya, 2010 and other enabling provisions of the law in which the Applicant, through the Directorate of Criminal Investigations Kuresoi North, seeks custodial orders to detain the Respondent for a period of twenty-one days pending completion of investigations. 2.The application, as drawn, is premised on allegations that the Respondent, jointly with others not yet arrested, is under investigation for offences of arson contrary to section 332(a) of the Penal Code, malicious damage to property contrary to section 339(1) of the Penal Code, and assault causing actual bodily harm contrary to section 251 of the Penal Code, all allegedly committed on 19th June 2026 at Umoja Tulwet Senior School during an event organised within Kuresoi North Sub-County. It is alleged that a motor vehicle registration number KDQ 155G, an Isuzu mini-bus, was set ablaze, and that other motor vehicles, including a government vehicle registration number GKB 253Z and a Toyota Prado registration number KDV 444A, were maliciously damaged. Further, it is asserted that two persons sustained gunshot injuries and are admitted in hospital in critical condition. 3.The grounds in support of the application, as well as the supporting affidavit sworn by IP Polycarp Magai, indicate that the continued detention is necessary to enable the investigating agency conduct valuation of the damaged properties, recover the Respondent’s firearm for ballistic examination, record statements of key witnesses allegedly admitted in hospital, carry out identification parade, prevent interference with witnesses, facilitate medical examination of victims, and afford the investigators time to carry out comprehensive investigations. 4.The application was presented by learned State Counsel Ms. Boiyon through the Investigating Officer IP Polycarp Magai and was vehemently opposed by learned counsel Mr. Karanja, Mr. Guto and Mr. Biko for the Respondent. 5.At the hearing, the deponent, IP Polycarp Magai, was extensively cross-examined. In the course of that cross-examination, he candidly stated that, at the moment, the investigators had not made a determination to charge any person, notwithstanding the prayer to detain the Respondent for twenty-one days. He further struggled to explain how the continued detention of the Respondent would facilitate valuation of the allegedly destroyed motor vehicles, and was unable to satisfactorily demonstrate how the Respondent would interfere with witnesses. It also emerged that the police had already accessed the Respondent’s homestead and effected arrests of other persons without any hindrance while the Respondent was not in custody. 6.The investigating officer was also unable to justify why valuation was to be undertaken by a valuer from Nairobi as opposed to Nakuru. On the issue of recovery and surrender of firearms, he referred to a prayer that was not contained in the application, and upon being pressed, was unable to demonstrate that such a prayer existed. Notably, despite being a police officer, he could not adequately explain the legal process governing surrender of licensed firearms. 7.With regard to the alleged victims admitted in hospital, the officer confirmed that he had no documentary proof before the court to establish the existence of such victims or their injuries. He further confirmed that the Respondent had been summoned by the County Criminal Investigations Officer (CCIO), voluntarily presented himself, recorded a statement, and was thereafter placed in custody leading to his arraignment before this Court. 8.On the issue of identification parade, he conceded that the Respondent is a public figure, being a Member of Parliament, and well known within Nakuru County, thereby casting doubt on the probative value of any proposed identification parade. He relied largely on intelligence reports, which he declined to disclose. 9.In submissions, learned counsel Mr. Karanja, for the Respondent, opposed the application and relied on the decision in Michael Rotich v Republic [2016] eKLR, where the High Court emphasised that continued detention is a limitation of the constitutional right to liberty and can only be granted upon demonstration of compelling reasons. Counsel submitted that no such compelling reasons had been advanced, arguing that the grounds cited by the Applicant, including valuation, ballistic examination, identification parade, and alleged hospitalized victims without supporting documentation, did not meet the constitutional threshold. 10.Counsel further submitted that the Respondent, being a sitting Member of Parliament, would suffer prejudice if detained for twenty-one days as this would affect his representation of constituents. 11.Mr. Biko, in supplementing the opposition, argued that no charge sheet had been presented to demonstrate the nature of the allegations confronting the Respondent. He pointed out that the police had already accessed the Respondent’s residence and conducted operations without interference, hence the allegation of possible obstruction was unfounded. He also criticised what he described as a growing trend of using custodial detention as a political tool, terming it discriminatory. 12.In reply, learned State Counsel Ms. Boiyon urged the Court to find that the burden under Article 49 had been discharged and that the orders sought were necessary to enable completion of investigations. 13.I have carefully considered the application, the supporting affidavit, the oral testimony of the Investigating Officer under cross-examination, and the rival submissions by learned counsel. 14.The starting point is Article 49(1)(f) of the Constitution of Kenya, 2010 which guarantees an arrested person the right to be brought before a court as soon as reasonably possible, and not later than twenty-four hours, and Article 49(1)(h) which secures the right to be released on bond or bail on reasonable conditions unless there are compelling reasons not to be released. Continued detention prior to charge is therefore a serious limitation of the right to liberty and must be justified by cogent, specific and verifiable reasons. 15.The jurisprudence in Republic v Ahmad Abolfathi Mohammed & Another [2018] eKLR and Michael Rotich v Republic [2016] eKLR is clear that the burden lies on the prosecution to demonstrate compelling grounds to warrant curtailment of liberty. 16.In the present case, several concerns arise. 17.First, the Investigating Officer expressly confirmed that no decision has been made as to whether the Respondent or any other person will be charged. This raises questions as to the basis upon which the Court is being asked to deprive a citizen of liberty for twenty-one days. 18.Secondly, the grounds advanced in the application are not supported by cogent evidence. There is no documentary evidence to confirm the alleged hospitalized victims, their injuries, or their inability to record statements. The claim that an identification parade is necessary is undermined by the admission that the Respondent is a well-known public figure. 19.Thirdly, the assertion that the Respondent would interfere with witnesses remains speculative. No specific witness has been identified, and no factual basis has been laid to support that apprehension. On the contrary, it is evident that the police have already conducted operations, including accessing the Respondent’s homestead, without obstruction. 20.Fourthly, the prayer relating to recovery of firearms and ballistic examination is not anchored in the application, and even if it were, the Investigating Officer was unable to explain the legal procedure relating to licensed firearms. 21.Fifthly, the justification for valuation of damaged property does not logically require the continued detention of the Respondent. Similarly, the explanation as to why such valuation must be undertaken by a valuer from Nairobi rather than locally was unsatisfactory. 22.The Court must guard against converting pre-charge detention into a tool for fishing expeditions or speculation. The Constitution demands accountability and precision in limiting fundamental rights. In Republic v Danson Mgunya & Another [2010] eKLR, the Court held that mere suspicion, however strong, cannot justify deprivation of liberty. 23.In the present circumstances, I find that the Applicant has failed to demonstrate compelling reasons to warrant the detention of the Respondent for twenty-one days or at all. The reasons advanced are either unsupported by evidence, speculative, or unrelated to the necessity of detention. 24.Accordingly, the application lacks merit. Disposition 1.The application dated 23rd June 2026 seeking orders to detain the Respondent for twenty-one days is hereby dismissed. 2.The respondent shall be released on a bond of Kshs. 100,000 each with one surety of a similar amount. In the alternative, respondent shall be released on cash bail of Kshs. 50,000/= plus one contact person who shall act as surety. 3.The respondents shall report to the investigating officer every Monday, Wednesday, and Friday until the expiry of twenty-one (21) days. 4.The matter shall be mentioned after the lapse of the said twenty-one (21) days for further orders. Mention 14th day of july 2026.It is so ordered. RULING DATED SIGNED AND DELIVERED THIS 23RD DAY OF JUNE 2026SIGNEDV. O. ADETSENIOR PRINCIPAL MAGISTRATEIn the Presence of;The RespondentMs. Boiyon for the StateMr. Karanja, Mr. Guto and Mr. Biko for the Respondent