[2007] KEHC 3778 (KLR)
The court found that the applicant's fears of harassment and threats, allegedly from police officers, were credible and that his willingness to submit to lawful investigation and prosecution demonstrated good faith. The court held that anticipatory bail is an appropriate remedy to protect the applicant's fundamental...
Source-derived case information.
- Citation
- [2007] KEHC 3778 (KLR)
- Parties
- Applicant: James Maina Wanjohi; Respondent: Republic; Respondent: Commissioner of Police; Respondent: Director of C.I.D.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 706 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Anticipatory Bail
- Outcome
- application granted
- Judges
- JB Ojwang
- Legal Topics
- Anticipatory Bail, Enforcement of Fundamental Rights, Right to Personal Liberty, Police Powers and Abuse
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Maina Wanjohi
Applicant
Republic
Respondent
Commissioner of Police
Respondent
Director of C.I.D.
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Anticipatory Bail
Legal Issues
- 1 Whether the applicant is entitled to anticipatory bail to protect his fundamental rights under the Constitution.
- 2 Whether the threats and fear of arrest without due process justify the grant of anticipatory bail.
Ratio Decidendi
The court found that the applicant's fears of harassment and threats, allegedly from police officers, were credible and that his willingness to submit to lawful investigation and prosecution demonstrated good faith. The court held that anticipatory bail is an appropriate remedy to protect the applicant's fundamental rights under the Constitution, particularly the right to personal liberty and due process. The court determined that granting anticipatory bail would ensure the applicant could safely present himself to the police for investigation and, if necessary, be charged in court, at which point the trial court would determine further bail terms. The court concluded that the application...
Court Disposition
application granted
Orders
- The applicant is granted anticipatory bail until such time as a formal charge is laid against him in a court of law, after which the trial court will determine bail.
- The applicant shall pay Kshs. 8,000 into the High Court cash office as bail.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
(CORAM: OJWANG, J.)
MISC. CRIMINAL APPLICATION NO. 706 OF 2007
IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS UNDER SECTION 84(1) AND (6) OF THE CONSTITUTION
AND
IN THE MATTER OF AN APPLICATION BY JAMES MAINA WANJOHI FOR AN ORDER OF ANTICIPATORY BAIL OR BAIL PENDING ARREST AND/OR CHARGE
AND
IN THE MATTER OF THE JUDICATURE ACT CAP. 8, RULE 3(1) & (2) THE CONSTITUTION OF KENYA SECTIONS 70, S.60, 72, 77, 76 & 123(8), THE CRIMINAL PROCEDURE CODE CAP. 75 SECTIONS 123(1), GENERAL PRINCIPLES OF NATURAL JUSTICE AND THE RULE OF LAW
BETWEEN
JAMES MAINA WANJOHI…..……………………..……....APPLICANT
-AND-
REPUBLIC…………………………………………...1ST RESPONDENT
COMMISSIONER OF POLICE……………………..2ND RESPONDENT
DIRECTOR OF C.I.D. …………………………….....3RD RESPONDENT
RULING
The applicant comes before the Court by his Notice of Motion dated 5th October, 2007. He seeks anticipatory bail. He is a businessman whose business is now interrupted, and his home-life disrupted because he has had to be on the move all the time. He keeps re-locating because he is receiving threats, some of which claim to be emanating from Police officers, and these also attribute to him criminal acts, which he believes he has not committed.
Learned counsel Mr. Macharia has represented to this Court, that the applicant will not attempt to escape the due process of Police investigations into his affairs; indeed, the applicant is quite prepared to be properly investigated and even charged in Court, if need be. But he is asking this Court to give him safe conditions in which he can report before a known Police Station, openly and without threats; for the purpose of recording statements as may be required; and even for the purpose of being charged.
The safety cover sought at this stage, by the applicant, is in the form of an anticipatory bail – to cover him until he is, if need be, charged in Court, whereupon the Court in question would ensure his freedom by appropriate bail orders.
From the facts deponed in the applicant’s affidavit, it is clear to this Court that the prayers in the application are by no means unreasonable.
I will make orders as follows:
1. The applicant is hereby granted anticipatory bail, and he will enjoy this bail until such time as a formal charge shall have been laid against him in a Court of law, from which moment the trial Court shall make any orders as to bail as may be deemed appropriate.
2. The applicant shall meet the bail terms by paying into the High Court cash office the sum of Kshs.Eight Thousand (8,000/=).
3. On 6th November, 2007 at 9. 30 a.m., the applicant shall report to the OCS, Central Police Station, Nairobi for the purpose of recording any statement such as may be required by the OCS, in connection with any intended prosecution against the applicant; and in this respect the applicant may be accompanied by his advocate.
Orders accordingly.
DATED and DELIVERED at Nairobi this 30th day of October, 2007.
J.B. OJWANG
JUDGE
Coram: Ojwang, J.
Court Clerk: Mr. Huka
For the Applicant: Mr. Macharia
For the Respondent: Mr. Makura