https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7230

**REPUBLIC OF KENYA** **IN THE HIGH AT ELDORET** **CRIMINAL MISC. APP. NO. E174 OF 2025** **FIDDIE TORVIL OMOLO…………………………………………………….APPLICANT** **VERSUS** **DIRECTOR OF PUBLIC PROSECUTION…………………………1ST RESPONDENT** **INSPECTOR GENERAL OF POLICE………………………………2ND RESPONDENT** **DIRECTOR OF CRIMINAL INVESTIGATIONS…………………3RD RESPONDENT** **Coram: Before Justice R. Nyakundi** **RULING** 1. Before this Court is notice of motion dated 24th day of November 2025, brought under Articles 22(1), 23, 29, 49, 50, 51 & 165 of the Constitution of Kenya, Sections 3 & 4 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, Sections 1A, 1B, 3A of the Civil Procedure Act, Sections 123 & 124 of the Criminal Procedure Code Cap 75. The Applicant seeks the following orders: 2. *Spent.* 3. *That pending the inter-partes hearing and determination of this Application, the Applicant be admitted to interim anticipatory bail under such reasonable terms as the Court deems fit.* 4. *That pending the hearing and determination of this Application the Applicant shall not be arrested by officers of the 2nd and 3rd Respondents, and if the Applicant shall be required by officers of 2nd and 3rd Respondents, he shall be accorded reasonable notice of at least 24 hours and be escorted by his advocate(s) to the directorate of criminal investigations or any police facility for the limited purposes of only recording a statement and taking of finger prints should any charges be preferred and thereafter released unconditionally.* 5. *That the Applicant be granted anticipatory bail under such reasonable terms as the Court deems fit.* 6. *That the costs of this application be provided for.* 7. *Any other order that meets the end of Justice.* 8. The application is based on the following grounds: 9. *That the Applicant is the Founder and Executive Director of Variable Care Society, a human rights organization with offices and operations across Kenya and duly registered under the Societies Act of the laws of Kenya.* 10. *That as the head of the organization the Applicant manages the operations and the supply chain where in the course of 2020-2023 he flagged out irregular supplies of Kshs. 14,000,000/-being fraudulent as they were never supplied in collusion with staff.* 11. *That what then followed were threats and extortion to effect the payments and on failing to heed the same the criminal process was activated against the Applicant specifically at Malindi Police Station where they seem to have connections with certain officers.* 12. *That what then followed were chains of demands and threats from the officers involved culminating in the Applicant's arrest on 9th September 2025 while on holiday in Malindi, more than two years later after the alleged contractual fall out between the purported complainants and the organization Variable Care Society, and not the Applicant in his personal capacity.* 13. *That the Applicant was then detained for three days at Malindi Police Station for three days and released unconditionally on 12th September 2024 without any charge.* 14. *That subsequently again on account of the exact same facts the Applicant was arrested a second time on 17th April 2025 in Kisumu on official business and transferred to Malindi Police Station and released on a police bail of Kshs. 50,000/- without any charge.* 15. *That the Applicant was again arrested on Friday 21st November 2025 at Eldoret Airport enroute to Nairobi and detained for five hours at Eldoret Police Station by persons claiming to be police officers executing an alleged warrant from Malindi Police Station, and only released after being forced to unlawfully surrender a bribe of Kshs. 100,000/-.* 16. *That the officers who detained the Applicant had intentionally planned to bundle him into a police vehicle to be escorted by road to Malindi Police Station, strategically on a Friday and inconveniently at the airport which disrupted the Applicant's business dealings and important meetings.* 17. *That the Applicant has never been made or required to record any statement or take plea for any offence but arrested twice on a fictitious complaint by persons intent on abusing the criminal process to settle what is purely a civil matter.* 18. *That the Respondents are unfairly targeting the Applicant for the actions of an independent organization he leads and for what is purely a contractual arrangement that can be sorted through the civil process.* 19. *That various Respondents' officers have been trying to extort Kshs. 1,000,000/- from the Applicant so that they can cease the harassment through the criminal process, and they are unrelenting now for one year making the Applicant fear he could be arrested any time.* 20. *That each time the Applicant has been arrested and released without charge causing significant losses in his business and travel engagements without lawful cause, in addition to serious dents to personal brand reputation.* 21. *That each time the Applicant is arrested and specifically detained in only one police station Malindi Police Station, he is threatened with being photographed and circulated in the media unless he complies with the extortion.* 22. *That the Applicant has now been forced to take cover as he has been trailed by various persons he suspects to be police officers intent on arresting him for purposes of extortion.* 23. *That subsequently the Applicant is now unable to move around freely or travel in and out of the country for fear of imminent unplanned arrest, and has been warned that he will be arrested at the airport in the course of his regular local and international travel.* 24. *That as a result of this threat the Applicant is now afraid of planning international and local travel for fear that these officers of the Respondents may well carry out the threat and have him arrested at the airport in the course of his regular travel in and out of the country.* 25. *That to date the Applicant is yet to be served or see a copy of the statement made by the complainant(s) so that he can know with precision the substance of the complaint or charge against him, and thus does not know who the complainant or complaint is two years on, only speculating against his right to fair hearing to know with precision the complaint or charges facing him before any arrest and prosecution.* 26. *That it is only fair and in the interest of justice that the application herein be allowed and the prayers sought be granted.* 27. *That unless the orders are granted, the Applicant stands to suffer great prejudice.* 28. In support of the application is the supporting affidavit of the Applicant who deponed as follows: 29. *That I am an adult male of sound mind and well conversant with the facts attendant to this suit, hence compos mentis to swear this affidavit.* 30. *That the I am the Founder and Executive Director of Variable Care Society, a human rights organization with offices and operations across Kenya and duly registered under the Societies Act of the laws of Kenya.* 31. *That as the head of the organization I run the day to day operations, and sometime in 2023 and in the ordinary course of my work I flagged out fictitious payment claims being fraudulent as they were never supplied in collusion with staff.* 32. *That what then followed were threats and extortion to effect the payments and on failing to heed the same the criminal process was activated against me where I was threatened by officers at Malindi Police Station where they seem to have connections with certain officers, and where I also run some of the organization's activities occasionally.* 33. *That what then followed were chains of demands and threats from the officers involved culminating in my arrest on 9th September 2025 while on holiday in Malindi, more than two years after the alleged contractual fall out between the purported complainants and the organization Variable Care Society, and not me in my personal capacity.* 34. *That I was then detained for three days at Malindi Police Station for three days and released unconditionally on 12th September 2024 without any charge.* 35. *That subsequently again on account of the exact same facts I was arrested a second time on 17th April 2025 in Kisumu while on official business and transferred to Malindi Police Station where I was released on police bail of Kshs. 50,000/- without any charge.* 36. *That a few days ago I was again arrested on Friday 21st November 2025 at Eldoret Airport enroute to Nairobi and detained for five hours at Eldoret Police Station by persons claiming to be police officers executing an alleged warrant from Malindi Police Station, and only released after being forced to unlawfully surrender a bribe of Kshs. 100,000/-.* 37. *That the officers who detained me intimated to me that they had intentionally planned to bundle me into a police vehicle to be escorted by road to Malindi Police Station, strategically on a Friday and inconveniently at the airport which disrupted my business dealings and important meetings.* 38. *That I have never been made or required to record any statement or take plea for any offence but arrested thrice on a fictitious complaint by persons’ intent on abusing the criminal process to settle what is purely a civil matter.* 39. *That the Respondents are unfairly targeting me for the actions of an independent organization I lead and for what is purely a contractual arrangement that can be sorted through the civil process.* 40. *That various Respondents' officers have been trying to extort Kshs. 1,000,000/- from me so that they can cease the harassment through the criminal process, and they are unrelenting now for one year making me live in perpetual fear of being arrested any time.* 41. *That each time I have been arrested and released without charge causing significant losses in my business and travel engagements without lawful cause, in addition to serious dents to my personal brand reputation.* 42. *That each time I have been arrested and specifically detained in only one police station Malindi Police Station, threatened with being photographed and circulated in the media unless I comply with the extortion, and have now resorted to arbitrary inconvenient arrests without warrant anywhere in Kenya with a possibility that I am always being tracked for arrest and intimidation just to get me to pay Kshs. 14,000,000/- disputed between the alleged complainants and the separate legal entity organization I lead.* 43. *That I have now been forced to take cover as I have been trailed by various persons I suspects to be police officers intent on arresting me for purposes of extortion, with a phobia to anyone looking suspiciously at me in public or even knocks at my residence which violates my rights to live freely in Kenya.* 44. *That subsequently I am now unable to move around freely or travel in out of the country for fear of imminent unplanned arrest, and have been specifically warned that they are tracking my movements and will arrest me at the airport in the course of my regular local and international travel, unless I approve the fraudulent payments.* 45. *That as a result of this threat I am now afraid of planning my international and local travel for fear that these officers of the 2nd and 3rd respondents may well carry out the threat and have me arrested at the airport in the course of my regular travel in and out of the country.* 46. *That to date I am yet to be served or see a copy of the statement made by the shadowy complainant so that I can know with precision the substance of the complainant or charge against me, and as it stands I do not know who the complainant is two years on, only speculating it to be the aggrieved suppliers orchestrating the fraud, and this violates my right to fair hearing to know with precision my accuser and the charges facing me before any arrest and prosecution.* 47. *That as of the date of this affidavit I live in perpetual fear of continued extortion, arrest and possible forcible disappearance in the hands of the 2nd and 3rd respondents who continue to be unrelenting in their extortion scheme for two years now.* **Decision** 1. The application before this Court can be clustered as having been the import of Article 149(1) (H) of the Constitution on bail which is a right availed to those arrested or apprehended that they are on the radar of the National Police Service as suspects of a cognizable offence. In our specific case the Applicant alleges that: * A founder and *Executive Director of Variable Care Society, a human rights organization with offices and operations across Kenya and duly registered under the Societies Act of the laws of Kenya.* * *That as the head of the organization the Applicant manages the operations and the supply chain where in the course of 2020-2023 he flagged out irregular supplies of Kshs. 14,000,000/-being fraudulent as they were never supplied in collusion with staff.* * *That what then followed were threats and extortion to effect the payments and on failing to heed the same the criminal process was activated against the Applicant specifically at Malindi Police Station where they seem to have connections with certain officers.* 1. In the Kenya legislative scheme there is no specific provision in the CPC which deals with anticipatory bail. The import of it is traceable to the provisions of the code and the rights on fundamentals rights and freedoms provided for under the Bill of Rights in our Constitution. In the context of this one can find the root on bail as far back to the Magna Carta in the text of pre-arrest bail in which the Court in **Nikesh Tarachand Shah v. Union of India (2018) 11 SCC 1**, Justice R. F. Nariman while adverting to the Magna Carta in the context of pre-arrest bail, observed as under: *“The provision for bail goes back to Magna Carta itself. Clause 39, which was, at that time, written in Latin, is translated as follows: “No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other* *way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” It is well known that Magna Carta, which was wrung out of King John by the Barons on 15-6-1215, was annulled by Pope Innocent III in August of that very year. King John died one year later, leaving the throne to his 9 year old son, Henry III. It is in the reign of this pious King and his son, Edward I, that Magna Carta was recognised by kingly authority. In fact, by the Statutes of Westminster of 1275, King Edward I repeated the injunction contained in Clause 39 of Magna Carta. However, when it came to the reign of the Stuarts, who believed that they were kings on earth as a matter of divine right, a struggle ensued between Parliament and King Charles I. This led to another great milestone in the history of England called the Petition of Right of 1628. Moved by the hostility to the Duke of Buckingham, the House of Commons denied King Charles I the means to conduct military operations abroad. The King was unwilling to give up his military ambition and resorted to the expedient of a forced loan to finance it. A number of those subject to the imposition declined to pay, and some were imprisoned; among them were those who became famous as “the Five Knights”. Each of them sought a writ of habeas corpus to secure his release. One of the Knights, Sir Thomas Darnel, gave up the fight, but the other four fought on. The King's Bench, headed by the Chief Justice, made an order sending the Knights back to prison. The Chief Justice's order was, in fact, a provisional refusal of bail. Parliament being displeased with this, invoked Magna Carta and the Statutes of Westminster, and thus it came about that the Petition of Right was presented and adopted by the Lords and a reluctant King. Charles I reluctantly accepted this Petition of Right stating, “let right be done as is desired by the petition”. Among other things, the petition had prayed that no free man should be imprisoned or detained, except by authority of law. In Bushell's case [Bushell's case, 1670 Vaughan 135: 124 ER 1006] , decided in 1670, Sir John Vaughan, C.J. was able to state that : (ER p. 1007) “The writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it.” Despite this statement of the law, one Jenkes was arrested and imprisoned for inciting persons to riot in a speech, asking that King Charles II be petitioned to call a new Parliament. Jenkes went from pillar to post in order to be admitted to bail. The Lord Chief Justice sent him to the Lord Chancellor, who, in turn, sent him to the Lord Treasurer, who sent him to the King himself, who, “immediately commanded that the laws should have their due course”. (See Jenke's case [Jenke's case, (1676) 6 How St Tr 1189], How St Tr at pp. 1207 & 1208). It is cases like these that led to the next great milestone of English history, namely, the Habeas Corpus Act, 1679. This Act recited that many of the King's subjects have been long detained in prison in cases where, by law, they should have been set free on bail. The Act provided for a habeas corpus procedure which plugged legal loopholes and even made the King's Bench Judges subject to penalties for non-compliance. The next great milestone in English history is the Bill of Rights, 1689, which was accepted by the only Dutch monarch that England ever had, King William III, who reigned jointly with his wife Queen Mary II. It is in this document that the expression “excessive bail ought not to be required…” first appears in Chapter 2 Clause 10. What is important to learn from this history is that Clause 39 of the Magna Carta was subsequently extended to pre-trial imprisonment, so that persons could be enlarged on bail to secure their attendance for the ensuing trial. It may only be added that one century after the Bill of Rights, the US Constitution borrowed the language of the Bill of Rights when the principle of habeas corpus found its way into Article 1 Section 9 of the US Constitution, followed by the Eighth Amendment to the Constitution which expressly states that, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. We may only add that the Eighth Amendment has been read into Article 21 by a Division Bench of this Court in Rajesh Kumar v. State [Rajesh Kumar v. State, (2011) 13 SCC 706: (2012) 2 SCC (Cri) 836] at paras 60 and 61.”* 1. The Court further in **Rajesh Seth v State of Chhattisgarh** **SLP (Crl) 1247/2022** observed: *“When a person is before the Court and that too in a matter involving personal liberty, least what is expected is for such a person to be given the result one way or the other, based on the merit of his case and not push him to a position of uncertainty or be condemned without being heard, when it matters. When an application for anticipatory bail was listed before the learned Single Judge, which was also accompanied by an application for ad-interim relief, the learned Judge should have decided the same one way or the other, so far as the ad-interim prayer or should have taken up for consideration after giving some reasonable time to the State. Even if admitted, the learned Judge should have listed the same for final disposal on a specific date, keeping in view the nature of relief sought in the matter. Not giving any specific date, particularly in a matter relating to anticipatory bail, is not a procedure which can be countenanced. We are of the considered view that this type of indefinite adjournment in a matter relating to anticipatory bail, that too after admitting it, is detrimental to the valuable right of a person.”* 1. In the light of the above jurisprudence the standard set by Article 29 of the Constitution may be formulated in the form of three questions: 2. *Has there been a deprivation of physical freedom?* 3. *Is the reason for the deprivation of freedom procedurally fair?* 4. *Is the manner of deprivation of freedom procedurally fair?* 5. The deprivation of physical freedom is a threshold enquiry: it triggers both the substantive protection afforded by the right to freedom and security of the person referred to in the above enquiry and the procedural protection referred to in answer to the issues framed in consonant with Article 29 of the Constitution. In other words, once the Applicant shows that a law or conduct deprives them of physical freedom, there is need for the Court to conduct a further enquiry within the provisions of Article 24 on limitation of rights. The truism of the Constitution is that no right should be considered absolute, which implies from the outset of interpretation, each right is already limited by every other rights accruing to another citizen. 6. The starting point on what the Applicant has alleged in the notice of motion would be to ask the question whether that deprivation of freedom by the National Police Service undertaking constitutional mandate under Article 244 as read with 245 would be for a just cause and in accordance with basic tenets of the legal system and for the interest of the administration of justice. Determining what tenets of a legal system is would presumably entail abstracting from the record to understand and appreciate the sense of the Kenya’s legal system and its fundamental principles. From the notice of motion and affidavit this matter in question seems to be under investigation by Malindi Police Station. Therefore raising the question why the Applicant could not approach the High Court in Malindi for anticipatory bail orders. It ought to have been heard and determined within that territorial jurisdiction which supervised by the Malindi High Court. In my considered view this is not forum of *conveniens*. 7. The unbroken chain of the letter and spirit of the Constitution 2010, Courts should continue to reiterate the need for warrants of arrest of a suspect who is alleged to have committed a cognizable offence not to be vague or overboard. It is necessary even at the third stage the National Police Service to state on phone or on a written notice what precisely is the complaint under the law, the probable information or brief circumstances of the offence and go further to explain that under Article 49 the offence is bailable and what is required of him or her is to visit the Police Station or the Investigating Agency to assist to the little or much extent it may be necessary for the proceedings to proceed in earnest. I bear in mind the constitutional mandate accorded to the Police National Service which among other things is to combat crime but the principle of legality, equality before the law, presumption of innocence until the contrary is proved, rights of an arrested person cannot be sacrificed in the State’s endeavor to combat crime. 8. The provisions in our Bill of Rights does bind a natural or juristic person if and to the extent it is applicable taking into account the nature of the right and the duty imposed by the right. There are many Kenyans who rush to Court for anticipatory bail which is clear evidence that the National Police Service need to revisit their constitutional and statutory mandate to establish whether there is a gap in which they enforce the law to justify why many Kenyans could be running to the altar of justice to seek protection against an arrest of suspects to an offence. 9. In the instant case I have reviewed the motion and affidavit and I am of the considered view that in this background information the Applicant’s fear of being arrested lacks merit to warrant this Court to grant a remedy of anticipatory bail. What this means the application is lost. **DATED & DELIVERED AT ELDORET THIS 27TH DAY OF MAY 2026.** **………………………………..** **R. NYAKUNDI** **JUDGE**