Ibrahim & another v Republic (Miscellaneous Criminal Application E078 of 2026) [2026] KEHC 7271 (KLR) (21 May 2026) (Ruling)

Ibrahim & another v Republic (Miscellaneous Criminal Application E078 of 2026) [2026] KEHC 7271 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 7271 (KLR) Republic of Kenya In the High Court at Kibera Miscellaneous Criminal Application E078 of 2026 DR Kavedza, J May 21, 2026 Between Hirab Sheikh Ibrahim 1st Applicant Bilal Salat Hillow 2nd Applicant and The Republic(Thru Anti-Terrorism Police Unit- Atpu) Respondent Ruling 1.The Applicants filed the Notice of Motion dated 12th May 2026 seeking orders for anticipatory bail. The application is supported by affidavits sworn by the Applicants on the same date. 2.The Applicants aver that they were arrested on 9th and 10th May 2026 at Edas Town, Wajir County, and subsequently detained at the Anti-Terrorism Police Unit Headquarters in Nairobi. They contend that pursuant to an application by the State dated 11th May 2026, orders were issued authorising their detention for twenty days without affording them an opportunity to be heard. They now seek anticipatory protection and review of the said orders. 3.The Applicants state that they are law-abiding citizens with fixed residences and strong family and community ties within Wajir County. They deny being flight risks and undertake to comply with any reporting conditions imposed by the Court. They further contend that under Article 49(1)(h) of the Constitution, they are entitled to bail unless compelling reasons are demonstrated. 4.The Applicants argue that investigations can proceed without continued detention since the mobile phones recovered upon arrest were inventoried and surrendered to investigators. They also dispute allegations that detention is necessary for their safety owing to inter-clan tensions, asserting that the State bears the constitutional obligation to guarantee their security. 5.The Applicants further depose that the allegations arise from a community dispute concerning the construction of a multi-agency camp and a border conflict in Basir, Wajir County, which they contend is improperly being escalated into a terrorism-related matter. They deny possession of firearms, explosives, or terrorist paraphernalia and state that only personal items were recovered from them. 6.The application is opposed through a replying affidavit sworn by Sgt. Joseph Mwiti on behalf of the Respondents. The Respondents state that the Applicants are under investigation by the Anti-Terrorism Police Unit for alleged involvement in terrorist activities and organised crime linked to violent conflict in Basir, Wajir County. It is alleged that the Applicants were part of a group involved in an incident in which one person sustained gunshot injuries. 7.The Respondents further state that investigations are ongoing, including forensic analysis of mobile phones, ballistic examination, witness interviews, and verification of identities. They also aver that demonstrations demanding the Applicants’ release turned violent, resulting in destruction of property and injuries to police officers. The Respondents therefore maintain that continued detention is necessary to complete investigations. 8.At this stage, the Court is not required to determine the merits of the allegations or the intended investigations. The Court’s duty is limited to safeguarding constitutional rights and ensuring that State action remains within the confines of the Constitution. 9.Article 49(1)(h) guarantees the right to bail or bond on reasonable conditions unless compelling reasons are shown. Further, Article 22(1) entitles every person to approach the Court where a right or fundamental freedom has been threatened or infringed. Although anticipatory bail is not expressly provided for in statute, the Court retains jurisdiction to grant appropriate relief where circumstances disclose a real threat to constitutional rights. 10.Having considered the material placed before the Court, I am satisfied that the Applicants have demonstrated sufficient basis for limited anticipatory protection pending completion of investigations and plea directions. 11.Accordingly, I make the following orders:i.The Applicants are admitted to anticipatory bail in the sum of Kshs. 100,000 each, to be deposited in Court.ii.The Respondents remain at liberty to conduct investigations and, if necessary, prefer charges against the Applicants. However, the Applicants shall not be arrested or detained pending compliance with these orders or further directions of the Court.iii.The Applicants shall not enter or interfere with the area surrounding the alleged scene of the incident pending further directions of the trial court.iv.Upon conclusion of investigations, should the Respondents decide to charge the Applicants, they shall notify them of the court and date for plea taking instead of arresting or detaining them.v.These orders shall remain in force until plea is taken and the trial court issues fresh bail or bond terms.vi.The Applicants shall appear before the trial court on 25th May 2026 at 9.00 a.m. for further directions.Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY ON THIS 21ST DAY OF MAY 2026.....................D. KAVEDZAJUDGE