[2015] KEHC 2741 (KLR)
The court found that while the police are entitled to conduct investigations and require the applicants to record statements, the applicants' apprehension regarding their liberty was not unfounded given the threats of arrest and detention. To balance the interests of both parties, the court confirmed the grant of...
Source-derived case information.
- Citation
- [2015] KEHC 2741 (KLR)
- Parties
- Applicant: Joshua Mutisya; Applicant: Robinson Nzioki Nelson; Respondent: Republic; Respondent: The Inspector General; Respondent: The D.C.I.O Athi River Police Station; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 143 of 2013
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Anticipatory Bail
- Outcome
- Application for anticipatory bail granted and confirmed.
- Judges
- BT Jaden
- Legal Topics
- Anticipatory Bail, Bail Pending Arrest, Enforcement of Fundamental Rights, Right to Liberty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Mutisya
Applicant
Robinson Nzioki Nelson
Applicant
Republic
Respondent
The Inspector General
Respondent
The D.C.I.O Athi River Police Station
Respondent
The Attorney General
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Anticipatory Bail
Legal Issues
- 1 Whether the applicants are entitled to anticipatory bail or bail pending arrest in light of alleged threats to their constitutional rights.
- 2 Whether the police investigations and requirement for the applicants to record statements constitute a breach of their fundamental rights.
Ratio Decidendi
The court found that while the police are entitled to conduct investigations and require the applicants to record statements, the applicants' apprehension regarding their liberty was not unfounded given the threats of arrest and detention. To balance the interests of both parties, the court confirmed the grant of anticipatory bail to the applicants until such time as formal charges are laid against them. The applicants are required to cooperate with the police by appearing to record statements when required. This approach ensures the applicants' constitutional rights are protected while allowing the police to proceed with lawful investigations.
Court Disposition
Application for anticipatory bail granted and confirmed.
Orders
- The orders admitting the applicants to anticipatory bail until formal charges are laid against them are hereby confirmed.
- The applicants to appear before the DCIO Athi River Police Station when required to do so to record statements in connection with the intended prosecution.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL MISC. APPLICATION CASE NO. 143 OF 2013
IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS UNDER ARTICLES 19, 20, 21, 22, 29, 47 & 50 OF THE CONSTITUTION OF KENYA (2010)
AND
IN THE MATTER OF THREATENED OR IMPENDING BREACH OF THE APPLICANTS FUNDAMENTAL RIGHTS AS ENSHRINED IN ARTICLE 29 OF THE CONSTITION
AND
IN THE MATTER OF SECTION 123 OF THE CRIMINAL PROCEDURE CODE CAP 74, THE GENERAL PRINCIPLES OF NATURAL JUSTICE AND THE RULE OF LAW
AND
IN THE MATTER OF AN APPLICATION BY JOSHUA MUTISYA AND ROBINSON NZIOKI NELSON FOR AN ORDER OF ANTICIPATORY BAIL OR BAIL PENDING ARREST AND/OR CHARGE
BETWEEN
1. JOSHUA MUTISYA
2. ROBINSON NZIOKI NELSON .………………………………………… APPLICANTS
AND
1. REPUBLIC
2. THE INSPECTOR GENERAL
3. THE D.C.I.O ATHI RIVER POLICE STATION
4. THE ATTORNEY GENERAL …………………………………..… RESPONDENTS
R U L I N G
1. The application dated 15/8/2013 seeks the following orders:-
“(Spent).
THATthe Honourable Court be pleased to grant the 1st and 2nd Applicants anticipatory bail and/or bail before arrest and/or charge in until such time as a formal charge shall be laid against them in a court of law.
THATa day be appointed for the Applicants to appear before theDCIO Athi River Police Stationwith their advocate to the intent (sic) that the police undertake normal procedures without arresting or taking the Applicants to custody.
THAT IP Jacob Mureithibe restrained from harassing and intimidating the Applicants in respect of arrest and detention.
THATthe costs of this application be in the cause.”
It is deponed in the affidavit in support that the Applicants have been threatened with arrest and detention by police officers from Mlolongo Police Station for unsubstantiated claims of having committed offences. That the Applicants are apprehensive that their constitutional rights are in danger of being violated.
The application is opposed. According to the affidavit in reply, the Applicants have been adversely mentioned in the investigations in regard to the complaints made at the police station by Joseph Muthemba Kamau and Peter Muange Kimuyu. That the Applicants are required at the police station to record statements and for other formalities. It is further averred that the investigations by the police are within the law.
The application was heard by way of written submissions which I have duly considered.
On 19/8/2013, the Applicants were admitted to anticipatory bail of Kshs.50,000/= each pending the hearing and determination of the application.
On the one hand, the Applicants’ fear that their liberty is at stake during this pre-arraignment stage. On the other hand, the police officers are within the law in carrying out the investigations and if an offence is disclosed, charge the Applicants accordingly.
To balance the interests of both sides, I make the following orders:-
The orders admitting the Applicants to anticipatory bail until formal charges are laid against them are hereby confirmed.
The Applicants to appear before theDCIO Athi River Police Stationwhen required to do so to record statements in connection with the intended prosecution.
Orders accordingly.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 19th day of March 2015.
………………………………………
B. THURANIRA JADEN
JUDGE