[2006] KEHC 1608 (KLR)

[2006] KEHC 1608 (KLR)

The court found that there is no statutory basis under the Criminal Procedure Code for granting bail before arrest to a person who has not yet been apprehended. The applicant's reliance on Section 23(3) was misplaced, and even if Section 123(3) were invoked, it only applies to accused persons already under arrest....

Source-derived case information.

Citation
[2006] KEHC 1608 (KLR)
Parties
Applicant: Devans Chilelo Mwangade; Respondent: The Attorney General
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
25 July 2006
Case Number
? 61 of 2006
Procedural Posture
Miscellaneous Application / Ruling on Application for Bail Before Arrest
Outcome
application dismissed
Legal Topics
Bail Before Arrest, Police Powers, Malicious Prosecution, Sexual Offences
Source Language
english
Criminal Law Civil Procedure Bail Before Arrest Police Powers Malicious Prosecution Sexual Offences

Source-derived case record

Summary, issues, holding and outcome

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Parties

Devans Chilelo Mwangade

Applicant

The Attorney General

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Bail Before Arrest

Legal Issues

  1. 1 Whether the applicant is entitled to bail before arrest under the Criminal Procedure Code.
  2. 2 Whether the failure to cite the correct statutory provision is fatal to the application.
  3. 3 Whether the applicant's fear of arrest on allegedly malicious charges justifies pre-arrest bail.

Ratio Decidendi

The court found that there is no statutory basis under the Criminal Procedure Code for granting bail before arrest to a person who has not yet been apprehended. The applicant's reliance on Section 23(3) was misplaced, and even if Section 123(3) were invoked, it only applies to accused persons already under arrest. The court recognized the applicant's concerns regarding possible malicious prosecution and the risk of detention, but held that the Constitution and existing police powers provide adequate safeguards. The court further reasoned that granting such applications would open the floodgates to similar claims and potentially clog the judicial system. Accordingly, the application was...

Court Disposition

application dismissed

Orders

  • The motion for bail before arrest is dismissed.
  • Copies of the ruling to be given to the state.