[2023] KEHC 25256 (KLR)

JOO v The Inspector General of the National Police Service & 2 others (Miscellaneous Criminal Application E080 of 2023) [2023] KEHC 25256 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25256 (KLR)

Republic of Kenya

In the High Court at Kisii

Miscellaneous Criminal Application E080 of 2023

TA Odera, J

November 14, 2023

Between

JOO

Applicant

and

The Inspector General of the National Police Service

1st Respondent

The Director of Public Prosecutions

2nd Respondent

The Officer Commanding Ramasha Police Station

3rd Respondent

Ruling

1. By a Notice of Motion Application dated 22. 9.2023 and filed under a Certificate of Urgency and brought under Articles 19, 20, 22, 26, 27, 29, 47, 48, 49, 50, 165 & 239(1) of the Constitution and Section 123(1) of the Criminal Procedure Code, the Applicant seeks the following orders: -1. Spent.2. That the Honourable Court be pleased to admit the Applicant on bail pending arrest either unconditionally or on such conditions as the court may deem fair, fit and just.3. That the Honourable Court be pleased to appoint such time and place whereof the Applicant may present himself either for plea or further orders of Court.4. That the Honourable Court be pleased to issue orders directed at the Respondents compelling them to abide by the orders issued herein should they apprehend the Applicant during the pendency of this instant Application.5. That there be a mention of this application as the Court may direct.6. That the costs of this application be in the cause.

2. The grounds on the face of the Application are that the Applicant had been receiving telephone calls from a police officer who introduced himself as PC Miti on telephone number 07259xxxx from Nyamasibi Police Post with the latest call being received on 20. 9.2023. The said police officer ordered the Applicant to report to the police station without indicating the reasons for the said summons. The Applicant suspected that the summons related to a case of defilement involving the Applicant’s brother’s daughter by KMM. The defilement case was filed in Keroka Law Courts vide Keroka MCCR No. 26 of 2017. The mother of the accused, KMM, threatened to revenge against the Applicant for having allegedly instigated the accused’s arrest and arraignment. The Applicant stated that the said threats were actualized on 15. 9.2023 when the Applicant was summoned to the office of Masaba South Children’s Officer on the strength of a complaint lodged by Ruth Nyamwaya. The complaint related to alleged child neglect of a 14-month old. The Applicant honoured the summons and categorically denied being the father of the Minor. Ruth Nyamwaya was interviewed and stated that she was not sure who the father of the Minor was. The Applicant demanded for a DNA test but the Children’s Officer declined. The Children’s Officer wrote a letter referring a case of neglect and defilement to the OCS Ramasha Police Station. The Applicant expressed his apprehension of his arrest, detainment and denied of personal liberty over framed up charges of child neglect and defilement alleged to have taken place more than 2 years prior. He stated that he was not opposed to the investigations taking place but prayed for bail pending arrest and for the police to furnish the Court with the charges, if any.

3. The Application was supported by an affidavit sworn by the Applicant on 22. 9.2023. The Affidavit reiterated the grounds on the application. There were 2 annextures to the Affidavit JOO1 and JOO2. However, there are no annextures to the Affidavit.

4. The 2nd Respondent opposed the Application. The 2nd Respondent filed Grounds of Opposition and therein, stated as follows: -1. The applicant’s apprehension doesn’t meet the threshold of serious breach of his rights by the Respondents as alleged or at all.2. The application herein is pre-emptive because should the intended investigations culminate in an arrest, the same will be in a legal process in the Kenya Legal System and it does not in any way amount to infringement of the applicant’s rights.

5. The Applicant filed a further Certificate of Urgency dated 12. 10. 2023. The Applicant stated that on 11. 10. 2023, 5 police officers visited his home at home by Nyamasibi under the command of the 3rd Respondent with the intention to arrest and detain him. He also stated that he was apprehensive that unless he was released on bond, he would be arrested and detained for the offence of defilement alleged to have been committed 2 years ago.

6. He swore an Affidavit on 12. 10. 2023 in support of the Certificate of Urgency and reiterated the contents of the Certificate of Urgency. I have perused the said Certificate of Urgency and I note that there is no substantive application attached to the Certificate of Urgency.

7. The main Application was heard on 25. 10. 2023.

8. The Applicant’s Counsel, Mr. Mageto, cited Article 159 of the Constitution. He submitted that the 2nd Respondent’s Grounds of Opposition raised technicalities. He submitted that the police were indeed looking for the Applicant to arrest him on the alleged offences of child neglect from the children’s office. The Applicant had no intention of interfering with the investigations. He submitted that the Applicant would present himself to the police station if the orders were granted. The Applicant’s Counsel submitted that the charges had nothing to do with the Applicant. The charges were the basis of a revenge plot owing to the Keroka case. He urged the Court to allow the application.

9. Mr. Ochengo, for the 2nd Respondent, submitted that the Applicant had not provided anything substantial to show that his rights were at risk of being breached. He submitted that the Applicant raised evidential issues which would be considered at the trial stage. There was no apprehension of his arrest. This was not a ground for anticipatory bail and the Applicant did not meet the threshold for anticipatory bail. He submitted that if the investigations culminated into an arrest, the rights of the Applicant would not be violated. He urged the Court to dismiss the Application.

Determination 10. I have considered the Application, the Grounds of Opposition and the Parties’ oral Submissions.

11. The question of anticipatory bail has been the subject of much discourse. Indeed, there are no express provisions providing for anticipatory bail. It is a special relief that Courts have over time allowed, subject, of course, to certain exceptions. This Court draws jurisdiction to grant this relief from Articles 23, 28, 49(h) and 165(3) of the Constitution. See Caroline Kuthia Karanja v Director Public Prosecutions & 2 Others [2021] eKLR; Paul Ole Kuyana & Another v Director of Public Prosecutions & 2 Others [2021] eKLR; Samuel Muciri W’Njuguna v Republic [2004] eKLR; Kipkerich Koskei v Director of Public Prosecutions & 2 Others [2018] eKLR among others.

12. The test for grant of anticipatory bail was set out in the case of Mandiki Luyeye v Republic [2015] eKLR where the Court (of concurrent jurisdiction) held that “…Anticipatory bail shall be granted only when an Applicant demonstrates that his Constitutional right has been violated or is likely to be violated.”“Accordingly, it is salient that anticipatory bail is aimed at giving remedy for breach of infringement of fundamental Constitutional rights in conformity with what the Constitution envisages constitutes protection of fundamental rights and freedoms of a citizen. It cannot issue where an Applicant labours under apprehension founded on unsubstantiated claims. The fear of breach to fundamental rights must be real and demonstrable. An Applicant must demonstrate the breach by acts and facts constitution the alleged breach.”

13. The Applicant was therefore required to establish and demonstrate that there was a real risk that his fundamental rights was likely to be breached.

14. The Court cited the case of Richard Makhanu vs Republic, Bungoma High Court Miscellaneous Application Criminal Case No. 10 of 2015 in which a concurrent court held as follows:“with regard to the issue of anticipatory bail, it is usually granted where there is alleged to be serious breaches by a state organ. In the case of W’Njuguna vs Republic, Nairobi Miscellaneous Case No. 710 of 2002, (2004) 1KLR 520 the court held that anticipatory bail can be granted:“…when there are circumstances of serious breaches of a citizen’s rights by an organ of the state which is supposed to protect the same.”

15. The Court further cited the case of Eric Mailu vs Republic and 2 Others, Nairobi Misc. Cr. Application No. 24 of 2013 where it was emphasized that anticipatory bail “…would only issue when there was serious breach of a citizen’s rights by organs of state.”

16. In the Mandiki Luyeye case, the Court continued to hold as follows:In the instant case, the Applicant contends that some police officers have been visiting his home with an intention of arresting him. The identity of the said police officers was not given, thus making it difficult for this court to ascertain that the persons who are allegedly harassing him are Police Officers. Be that as it may, the Applicant concedes that there are some fraud investigations carried on by the police. This was vindicated by the learned state counsel for the Respondent. But according to the state counsel, the investigations do not touch on the Applicant. Therefore, unless the Applicant is certain on the identity of the officers allegedly visiting him, this court will not be in a position to ascertain that the harassment exists. His application, in my view, given those circumstances is based on unsubstantiated fears which do not amount to infringement of his personal freedoms and rights as enshrined under the Constitution.”

17. In the present case, I note that the 1st and 3rd Respondents did not participate in the proceedings. I further note that the allegations lodged by the Applicant were not disputed. The allegations of the threats of personal vendetta, the events at the Children’s Officer’s offices, the call by a police officer who did not inform him of any charges leveled against him and that 5 police officers visited his home on 11. 10. 2023 at 8. 00 p.m. in a bid to arrest him were not controverted.

18. So far, there is no indication that there are any charges leveled against the Applicant. It is not known what happened to the report by the Children’s Office, if at all it was forwarded to the relevant state agencies. Absent that, I find it strange that a police officer would constantly call/summon the Applicant to report to the police station and not give a reason. This will no doubt cause utmost anxiety and apprehension on the part of the Applicant and borders on harassment, among other fundamental rights.

19. I find that the Applicant has met the threshold for grant of anticipatory bail.

20. In the end, the Application dated 22. 9.2023, is allowed in the following terms: -a.The Applicant is admitted to anticipatory bail.b.The Applicant shall execute a bond of Kshs. 100,000/= or cash bail of Kshs 100,000/= which shall expire 3 months from the date of this ruling.c.The Applicant shall avail himself for interrogation by the officers of the Respondents as and when requested and cooperate with the investigators.d.The police are hereby ordered finalize their investigations and make a determination whether to charge the Applicant within a period of 3 months from the date of this ruling.

21. There shall be no order as to costs.

DATED, DELIVERED AND SIGNED AT KISII THIS 14TH DAY OF NOVEMBER 2023. T.A ODERAJUDGEIn the presence of:Ochengo - for the StateMageto - for the Applicant