[2004] KEHC 2713 (KLR)
The court found that the applicant had demonstrated, through affidavit evidence and unopposed submissions, that his constitutional right to liberty had been compromised or was at real risk of being breached due to police harassment following a civil dispute. The apprehension was found to be genuine and not...
Source-derived case information.
- Citation
- [2004] KEHC 2713 (KLR)
- Parties
- Applicant: Joseph Cherere Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 553 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Anticipatory Bail Application
- Outcome
- application granted
- Legal Topics
- Anticipatory Bail, Right to Liberty, Police Harassment, Bailable Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Cherere Mwangi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Anticipatory Bail Application
Legal Issues
- 1 Whether the applicant is entitled to anticipatory bail or bail pending arrest under the Constitution and Criminal Procedure Code.
- 2 Whether the applicant has demonstrated that his constitutional rights to liberty have been or are likely to be compromised or breached by police actions.
- 3 Whether the offence under investigation is bailable and if so, whether bond should be granted.
Ratio Decidendi
The court found that the applicant had demonstrated, through affidavit evidence and unopposed submissions, that his constitutional right to liberty had been compromised or was at real risk of being breached due to police harassment following a civil dispute. The apprehension was found to be genuine and not speculative. The court held that anticipatory bail is warranted where there is a real threat to constitutional rights, and granted the application for anticipatory bail, subject to conditions regarding the amount and surety, execution of bond, and presentation to the authorities.
Court Disposition
application granted
Orders
- The applicant is admitted to bail for all bailable offences under the law in the sum of 200,000 KES with one surety of like sum.
- The applicant shall execute a personal bond in the sum of 200,000 KES and provide a surety in the same sum within three days from the date of the ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CRIMINAL APPL. NO. 553 OF 2004
JOSEPH CHERERE MWANGI…..……………..…………..APPLICANT
VERSUS
REPUBLIC ……………………..…………………………..RESPONDENT
R U L I N G
The Applicant/Subject, JOSEPH CHERERE MWANGI, by a Notice of Motion dated 15th September 2004 brought under Rules 3(1) and (2) of Judicature Act, Sections 60, 70 to 72 and 76 of the Constitution and Section 123(8)of the Criminal Procedure Code seeks Anticipatory bail or bail pending arrest. The Application is supported by an Affidavit sworn by the Applicant himself and by the grounds disclosed on the face of the Application.
This Application is unopposed.MR. WANDUGI, in his submissions on behalf of the Applicant relied entirely on the Applicant’s sworn Affidavit. From the Affidavit, the facts surrounding the events that led to the filing of this Application are civil in nature. It is the Applicant’s averments that his client, having hired him to carry out some survey work, seemed unhappy with his work. He reported against him to the Police following which the Police have harassed him and his family. He depones that whereas he has nothing against Police doing their work, he was apprehensive of them due to the constant harassment he and his family have been subjected to by the Police.
MISS NYAMOSI, learned counsel for the State submitted that the Application was not opposed. However, she submitted, bond should only be granted if indeed the offence for which the police were investigating against the Applicant was bailable.
An Applicant seeking redress from this court must bring himself within the provisions of Section 84(1) of the Constitution. He must demonstrate that his Constitutional rights and freedoms are enshrined in Sub-section 70 to 83 of the Constitution (inclusive) have or are being or are likely to be compromised or breached.
I have carefully considered the Applicant’s Affidavit, the grounds for this Application and in MR. WANDUGI’s submissions. I am satisfied that the Applicant has demonstrated to the satisfaction of this court that his freedom of liberty as provided under the Constitution, has been compromised and or breached. I am satisfied that his apprehension as deponed to by him in his Affidavit is real and not imagined or speculative. I am therefore, satisfied that the Applicant deserves the Anticipatory bond he has sought. I grant his Application in the following terms: -
1). That the Applicant be and is hereby admitted to bail, for all bailable offences under the law in the sum of 200,000/ - with one surety of like sum (Two hundred thousand only).
2). That the Applicant do execute a personal bond in the sum of 200,000/ - and provide a surety in said sum as stated in (a) above within three days from d ate herein.
3). That the Applicant do present himself to the Respondent or their servants or agents, with or without counsel within 7 days from date of executing the bond.
4). In default of any paragraphs above, (1 to 3 inclusive) the bail granted herein shall lapse.
Orders accordingly.
Dated 23rd November 2004, at Nairobi.
LESIIT
JUDGE