[2022] KEHC 16496 (KLR)

Kamau v Republic (Miscellaneous Criminal Application 1 of 2022) [2022] KEHC 16496 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16496 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Criminal Application 1 of 2022

MW Muigai, J

December 15, 2022

Between

Lucia Wanjiku Kamau

Applicant

and

Republic

Respondent

Ruling

Application 1. The applicant herein Lucia Wanjiku Kamau filed chamber summons dated 16th day of November, 2022 and sought the following orders; -a.(Spent)b.That the applicant be granted anticipatory bail or bail pending arrest for any available offence particularly on any issue in relation to the following parcels of land which the applicant purchased and subdivided into small plots of land which she sold out to interested purchasers with the help of some of her employees, some of whom even worked alone when the applicant was sick and not able to work, and who thereafter left employment, and most of these plots now have some ownership issues, after some of them may have been sold to two or more people, but the applicant has sorted out most of those issues and the police are now harassing the applicant with threats to arrest her and charge her in the court of law despite the fact that she is sorting out those issues with the parties concerned in most of these cases. These parcels are:-i.LR No 7340/74 – Mavoko Municipality Machakos Countyii.LR No 7340/85 – Mavoko Municipality Machakos Countyiii.LR No7340/86 – Mavoko Municipality Machakos Countyiv.LR No 7340/87 – Mavoko Municipality Machakos Countyv.LR No 7340/98 – Mavoko Municipality Machakos Countyvi.LRNo 7340/106 – Mavoko Municipality Machakos Countyvii.LR No 7340/112 – Mavoko Municipality Machakos Countyviii.LRNo 7340/142 – Mavoko Municipality Machakos Countyix.LR No7340/136 – Mavoko Municipality Machakos Countyx.LR No7340/143 – Mavoko Municipality Machakos Countyxi.LR No 7340/167 – Mavoko Municipality Machakos Countyxii.LR No 7340/169 – Mavoko Municipality Machakos Countyxiii.LRNo 7340/151 – Mavoko Municipality Machakos Countyxiv.LR NoDonyo Sabuk/Komarock Block 1/436xv.LRNo Donyo Sabuk/Komarock Block 529c.That at any instance, a day be appointed for the applicant to appear before the court together with her counsel to enable them to undertake formal procedure including charge and caution if necessary without being taken to custody.d.That a day be appointed for the applicant to appear in court for purposes of trial if criminal charges are preferred and filed in court against her.e.Any other order or orders as this court may deem fit and just to grant.

2. The application is based on the following grounds:i.That in or around 1980’s and 1990’s the applicant purchased some parcels of land through the firms names like Lummen Enterprises, Mbariki Properties and Nyanduma Horticulture Impex Enterprises which parcels are located around Nairobi and Mavoko areas;ii.The applicant sub-divided the parcels into small plots and started selling to the people who were interested in purchasing the same;iii.That the applicant was issuing the said purchasers with share certificates in respect of their said plots pending finalization of the process of having individual title deeds;iv.That the applicant had employed some workers to help in the process of selling the said plots;v.That during the process of selling there was a period the applicant was very sick, in and out of hospitals and when she was better , she went back to the office where she continued to sell plots, although she has not fully recovered from high blood pressure and heart ailments, she discovered that some of the workers she trusted with the selling of the said plots were not honest and was forced to sack some of them.vi.That when the applicant returned to work she discovered some malpractices which included selling some of the plot to more than one person;vii.The applicant engaged some members of staff to investigate the anomalies by the previous workers with the aim of involving the Director of Criminal Investigation soon hereafter with the aim of having the past employees investigated and perhaps charged in courts of law since some monies that were received from the purchasers was not handed to her, some took some plots in their names and transferred others to friends and relatives.viii.That before she could go through the process, some purchasers found their plots were sold and that the purchasers who found that the plots they were sold and are/were being developed by strangers and rushed to police stations like Mlolongo Police Station, Muungano Police Station and others where they reported their grievances against the applicant;ix.That after the said reports were made the police have been calling the applicant on her phone and harassing her and threatening her with arrest and when she goes to the police stations, she is put in cells after which she is taken to court and charged and they have a habit of calling her on Fridays so that they can put her in cells until the following Monday when they take her to court.(x)That the habit which the police have formed should be put to an end, since it is aimed at harassing her and denying her peace and interfering with her fundamental rights guaranteed by the Constitution.

3. The application is supported by the affidavit of the applicant sworn on even date deposing the same facts outlined as grounds and she is seeking the remedies outlined therein and thereby assures this court that she does not intend to steal any plot from anybody, that she is also a culprit of the malfunction and any criminal activity which may have been carried out or committed by the said former employees, but the solution is not to harass her and deny her fundamental rights, but a peaceful process which she is engaged in with a view of each side getting its justice which she believes will be soon hereafter.

Oral Submissions 4. On November 28, 2022 Mr Kamata for the applicant appeared in court. This court directed that the respondent file their responses within 7 days; skeletal/oral submission to be made on the hearing date due to the urgency of the matter; the matter was rescheduled for hearing on 6/12/2022; that the respondents to be served with the orders.

5. On 6/12/2022 when the parties appeared in court for hearing the ODPP/prosecution sought adjournment to enable them file their response. This court adjourned the matter to 7/12/2022.

Replying Affidavit Sworn on December 6, 2022 6. Mr Mwongera forODPPswore replying affidavit deposing that the applicant herein is involved in a land transaction which is disputed by the purchasers.

7. That the applicant has not demonstrated how she will suffer any substantial injustice, since her rights are guaranteed under article 49 of theConstitution.

8. That the application is premature, since the respondent has not scrutinized the police file, in order to make the decision whether to charge the applicant or not and that the application is seems to be ill-advised, frivolous and abuse of the court process.

Respondent’s Grounds of Opposition Dated December 6, 2022 9. That the National Police Service is mandated under article 245 of the Constitution to investigate any alleged offence reported to them.

10. That the application is still premature since the police file has not been brought to the Office of the Director of Public Prosecutions for further scrutiny and consideration.

11. That the applicant has not demonstrated how she will suffer any substantial injustice since her rights are guaranteed under article 49 of theConstitution.

12. That the application is misconceived, frivolous, vexatious and an abuse of the court process.

Court Proceedings 13. On 8/12/2022 the parties appeared before this court. Mr Kamata for the applicant stated that they are only praying for bail/bond anticipatory bail as the applicant is unwell and if incarcerated her health will deteriorate and her constitutional rights will be interfered with.

14. That the applicant is ready to sort out the plots sold to the purchasers.

15. That the applicant place of abode is known hence not a flight risk.

16. If the applicant is to be charged with any offence she is ready to cooperate with the police and if charged will avail herself.

17. That the replying affidavit by the ODPPdoes not raise any tangible reasons for denying the applicant the orders sought.

18. Mr Mwongera in reply stated that nothing shows that the applicant is under threat and investigations in this matter are still ongoing. On the issue of health of the applicant, no medical record has been attached in support of the same. The harassment allegations by the police have not been confirmed. The ODPP opposes the orders sought.

19. The applicant stated the issue of sickness under oath and urge this court to grant the prayers sought.

Determination 20. This court is called upon to determine the issue of bond pending arrest or anticipatory bail,The law does not expressly or specifically provide for anticipatory bail but it is envisaged by article 29 of the Constitution; which provides for a person’sFreedom and security of the person;Every person has the right to freedom and security of the person, which includes the right not to be—(a)deprived of freedom arbitrarily or without just cause;(b)detained without trial, except during a state of emergency, in which case the detention is subject to article 58;

21. In Samuel Muciri W’Njuguna v Republic [2004] eKLR Hon Kimaru J (as he then was) & Rawal LJ said of anticipatory bail;“While it is true that the right to anticipatory bail or bail pending arrest is not specifically provided for by statute we are of the humble opinion that the right to anticipatory bail or bail pending arrest is envisaged by section 84(1) of the Constitution. The applicant’s ordeal at the hands of the police is an instance where a right to anticipatory bail accrues. When a person is constantly subjected to harassment or is in fear of being unjustifiably arrested, he has a right to recourse to the protection of the Constitution through the High Court where its enforcement is provided for by the Constitution. It would indeed be a tragedy, if the Constitution did not provide a remedy to a citizen whose fundamental rights have been breached. In the instant case, the applicant has had dreadful experiences at the hands of the police where he has been severally incarcerated for no apparent or justifiable reason. For the respondent to say that a person in such a situation should do nothing because there is no law providing for such a person to seek a remedy in court will completely be the antithesis of the spirit of the Constitution which provides for the protection of fundamental rights and freedoms in the Bill of Rights.

22. In Paul Ole Kuyana & another v Director of Public Prosecution & 2 others [2021] eKLR Hon Gikonyo J relied on the case of Mandiki Luyeye vs Republic [2015] eKLR, Hon Ngenye LJ (as she then was )held as follows:-“Similar sentiments were observed in the case of Eric Mailu vs Republic and 2 others Nairobi Misc Cr Application No 24 of 2013 in which it was emphasized that anticipatory bail would only issue when there was serious breach of a citizen’s rights by organs of state. 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 right must be real and demonstrable. An applicant must demonstrate the breach by acts and facts constituting the alleged breach.”

23. The law is settled that anticipatory bail is a legal remedy available to specific and verifiable instances of serious infringement of the applicant’s constitutional rights. In the instant case, the applicant complains of harassment by being called to the police stations(s), presumably interrogated on what admittedly is on-going investigations of possibly irregular and /or unlawful sale of land parcels as outlined above about 20-30 plots/parcels of land. The court considers these calls are in relation to investigations that involve various and different parties/complainants and reports made at different intervals and/or police stations taking into account the number of plots/land parcels.

24. The applicant deposed in the supporting affidavit, that after the said reports were made the police have been calling the applicant on her phone and harassing her and threatening her with arrest and when she goes to the police stations, she is put in cells after which she is taken to court and charged and they have a habit of calling her on Fridays so that they can put her in cells until the following Monday when they take her to court.

25. If the allegation holds true then it means that the applicant has already been arrested charged and taken/arraigned to/in court and granted bond/bail awaiting trial in certain instances where the complaint has been investigated and charges are preferred in line with article 49 of the Constitution.

26. If that be true, the case numbers have not been provided so as to fortify the claim that she is still being harassed whilst she has been arraigned in court. secondly, being arrested and later arraigned in court is the legal process in law after a complaint is made by complainant to the police station, it is investigated which includes interrogation and persons of interest are summoned to the relevant police station and if found to have committed an offence and arraigned in court within 24 hours and released on bond/bail if bailable offence and there are no compelling reasons to oppose bail/bond.

27. The word “investigate” is defined in the Black’s Law Dictionary 9th Edition as: “To inquire into a matter systematically; to make an official inquiry.”

28. The applicant was stated to be of advanced age and ailing from medical conditions of high blood pressure and heart problems and would not want to be placed in cells. The applicant failed to avail any tangible or cogent evidence of the applicant’s medical history/status or confirm her age by production of legal documents. As it is even with the ongoing investigations, there is no evidence of arrest of incarceration as alleged, she is not arrested or incarcerated and is at liberty to exercise her right of movement and/or association.

29. The applicant stated that she has sorted out most of the issues surrounding the alleged fraudulent sale(s) of listed land parcels but did not indicate which land parcels are now settled and those pending.

30. The court considers on the other hand that the police mandate is outlined by section 24 of the National Police Service Act No 11 A of 2011 as —(a)Provision of assistance to the public when in need;(b)Maintenance of law and order;(c)Preservation of peace;(d)Protection of life and property;(e)Investigation of crimes;(f)Collection of criminal intelligence;(g)Prevention and detection of crime;(h)Apprehension of offenders;(i)Enforcement of all laws and regulations with which it is charged; and(j)Performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.

31. These duties are reinforced by sections 21 22 & 29 of the Criminal ProcedureCode.

32. The applicant’s plea that the irregularities of sale/purchase of land were occasioned by her ill-health and she left her employees who sold the said plots is not borne out by any evidence presented in this court; either medical reports confirming medical incapacity at the time or the fact that names of employees left are/were disclosed to the police so as to go after the real culprits leaving her perhaps as a witness if criminal proceedings commence.

33. With regard to the fact that the applicant admittedly is in the process of resolving some of the disputes arising from sale/purchase of land means that the police while conducting investigations are amenable to settlement of the dispute out of court if possible. This position does not tally with harassment unlawful confinement or lawful arrest by the police.

34. For these reasons, this is not a case of transgression or compromise of the applicant’s right to liberty and security or gross violation of the applicant’s constitutional rights unless and only when such evidence is presented to court. This court is in agreement with the following finding;

35. In Republic vs Chief Magistrate Milimani & another Ex-parte Tusker Mattresses Ltd & 3 others [2013] eKLR Hon GV Odunga J (as he then was) expressed the following:“The court must in such circumstances take care not to trespass into the jurisdiction of the investigators or the court which may eventually be called upon to determine the issues hence the court ought not to make determinations which may affect the investigations or the yet to be conducted trial. That this court has power to quash impugned warrants cannot be doubted. However, it is upon the ex parte applicant to satisfy the court that the discretion given to the police to investigate allegations of commission of a criminal offence ought to be interfered with. It is not enough to simply inform the court that the intended trial is bound to fail or that the complaints constitute both criminal offence as well civil liability. The High Court ought not to interfere with the investigative powers conferred upon the police or the Director of Public Prosecution unless cogent reasons are given for doing so... The warrants were issued to enable the allegations be investigated. Whether or not the investigations will unearth material which will be a basis upon which a decision will be made to commence prosecution of the ex parte applicants or any of them is a matter which is premature at this stage to dwell on.”

36. Courts have the responsibility to balance the rights of citizens and at the same time allow legal institutions carry out their mandate as provided by law. If and when the line is crossed whilst conducting investigations by the police upon proof of allegations of unlawful arrest or confinement or curtailment of one’s liberty the law shall intervene and protect the person’s legal rights. In the instant case, the court finds that granting anticipatory bail at this stage in the absence of proof of allegations made would amount to interfering with ongoing investigations.

37. The application for bail pending arrest/anticipatory bail is denied.

38It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT MACHAKOS THIS 15TH DAY OF DECEMBER 2022 (VIRTUAL/PHYSICAL CONFERENCE).M. W. MUIGAIJUDGEIN THE PRESENCE OF:No appearance - for the ApplicantNo appearance – for RespondentGeoffrey/Patrick - Court Assistant(s)