[2022] KEHC 16298 (KLR)

Khan v Director of Public Prosecutions & 3 others; Otenyo (Interested Party) (Miscellaneous Criminal Application E220 of 2022) [2022] KEHC 16298 (KLR) (Crim) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16298 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E220 of 2022

JM Bwonwong'a, J

December 8, 2022

Between

Nadeem Shakoor Khan

Applicant

and

Director Of Public Prosecutions

1st Respondent

Director Of Criminal Investigations

2nd Respondent

Inspector General Of Police

3rd Respondent

Director Of Immigration Services

4th Respondent

and

Pamela Ayieko Otenyo

Interested Party

Ruling

1. The applicant filed an application dated August 8, 2022 pursuant to articles 20, 22, 23 (1), and 49 (1) (h) of the Constitution of Kenya, 2010 and sections 39, 123 and 124 of the Criminal Procedure Code (cap 75) Laws of Kenya, in which he sought the following orders.i.The court to grant the applicant anticipatory bail pending arrest or charge on such terms as the court may deem fit.

2. The application is premised on the grounds on the face the face of the notice of motion and is supported by an affidavit dated February 14, 2022, sworn by the applicant’s advocate. In that affidavit he has averred as follows. The applicant is a Pakistani national who has been a Kenyan resident for the past 28 years with valid work permits/passes. In December 2021 the applicant filed a report with the Ethics and Anti-Corruption Commission adversely citing the interested party, who is an officer with the 4th respondent and the presiding chairperson of the Permit Determination Committee. On May 12, 2022 the applicant made an application with the 4th respondent for the renewal of his work permit, which was denied. His current work permit expired on May 26, 2022 and he is in the process of making an application to the Cabinet Secretary for review. In addition, he applied for and was granted a visitor’s pass to allow him process his application for renewal of the work permit.

3. The applicant avers that he has received threats via his telephone of adverse actions against him and his immigration status in the country. He is apprehensive of an intended arrest and deportation and seeks the court’s intervention to stop the respondents against any such action. That any arrest, detention or deportation of the applicant would compromise his family life as he is a married to a Kenyan citizen with whom they have four Kenyan children. The applicant has since minimised his movements thereby limiting his freedoms of movement and association.

4. No. 56495 Cpl William Kosgey, deposed a replying affidavit dated August 23, 2022. He avers that he is currently investigating a case of obtaining money by false pretences, where the applicant is the suspect and the complainant is the interested party. That the applicant has sought anticipatory bail to prevent his arrest and prosecution. That it is in the interest of justice for the applicant to avail himself and be escorted by his advocate to DCI Central for statement recording to enable him conclude his investigations.

5. The 4th respondent filed grounds of opposition dated August 23, 2022. The grounds raised are that the applicant has failed and neglected to exhaust all administrative reliefs and avenues available to him prior to filing this instant application as provided under the Kenya Citizenship and Immigration Act 2011. The applicant has failed to provide cogent evidence of any threats issued to him by the 4th respondent. He has also improperly invoked the jurisdiction of the court as he has failed to demonstrate the existence of any warrants of arrests issued against him. The applicant is seeking to hoodwink the court to grant the orders sought which will usurp the constitutional and statutory mandate of the 4th respondent. The application is misconceived, incompetent and is an abuse of the court process.

6. The 4th respondent also filed a replying affidavit sworn by Christine Kinyua a Senior Immigration Officer. She avers that the report by the applicant to the Ethics and Anti-corruption commission is a personal dispute between himself and the interested party. The Permit Determination Committee decision making structure and mechanism does not rest squarely on the Chairperson, but on consensus of all members of the committee. The applicant has failed to demonstrate any isolation, violation or threatened violation of his rights and fundamental freedoms by the 2nd and 3rd respondents. The applicant has also failed to demonstrate the existence of any dependant as alleged. The presence of the applicant in the country without a valid work permit is not allowed under section 34 (1) and (2) of the Kenya Citizenship and Immigration Act, 2011. The application is an underhanded attempt to secure his stay without a valid work permit or proper immigration status in contravention of the law. The applicant has failed to meet the threshold for the grant of the orders sought. The application is frivolous and should be dismissed with costs.

7. The interested party also filed a replying affidavit dated August 30, 2022. She avers that she is the Director of Immigration Services and a member of the National Coordination Mechanism. That there is a dispute between herself and the applicant over the importation and sale of a motor vehicle which is currently in the Chief Magistrate’s court sitting in Milimani. She denies harassing the applicant or using the police to harass him. That the applicant is acting in bad faith and is only seeking to legally remain in Kenya without a valid work permit. Further, the application has failed to meet the threshold required by the law for anticipatory bail and should be dismissed with costs.

8. In rebuttal, the applicant filed a further affidavit dated 1st September 2022. He avers that he has never been summoned by Cpl William Kosgey to attend to Nairobi Central Police station. Further, that he has never breached any term of the work permit that was granted to him. Although his application for the work permit was denied, he subsequently applied for a special pass which was also denied. Further, he has applied for a special pass again from the 4th respondent. That without the protection of the court, he will be denied due process by the 4th respondent at the behest of the interested party.

The applicant’s written submissions. 9. Mr. Mwale, learned counsel for the applicant submitted that the applicant does not seek to place any impediment upon the constitutional function and mandate of state organs. That what is sought to be prohibited are the unfair, intimidatory threats by the respondents against the applicant. That the respondents’ actions smack of impropriety, illegality, manifest injustice, impunity and oppression.

10. He has urged the court to grant the applicant minimal anticipatory bail terms and that he was willing to co-operate with the relevant authorities in carrying out their investigations. Further, the grant of anticipatory bail will enable the applicant pursue the administrative review mechanism under the Kenya Citizenship and Immigration Act, 2011 without risk of detention or removal from the country.

The 1st respondent’s written submissions 11. Ms. Maureen Akunja, principal prosecution counsel submitted that anticipatory bail may be granted, when an applicant demonstrates that his right to liberty has been infringed or is under a threat of violation. She submitted that the applicant has not demonstrated that his right to liberty has been infringed or are likely to be violated.

12. Learned prosecution counsel further submitted that the applicant has not demonstrated by actions that he has been harassed or intimidated by officers of the law. That the applicant is seeking a blanket order from the court to prevent any arrest even if the same is legal. She urged the court to dismiss the application in its entirety.

The interested party’s written submissions. 13. Mr. Musyoka, learned counsel for the interested party submitted that anticipatory bail should not be granted as a way of pre-empting the outcome of investigations. That the applicant has not produced any evidence that his rights have been breached, denied or that there is a threat of them being infringed.

14. Further, the investigations being conducted are a legal process aimed at fact finding of the commission of a crime in the criminal justice system. As long as the investigations are carried out in accordance with the law, they should be allowed to run their course.

15. I have considered the application, the responses, and the submissions by the parties. The issue that arises for determination is whether the applicant has met the threshold for the grant of the orders for anticipatory bail.

Analysis and determination. 16. In Kenya, there are no specific provisions on anticipatory bail save for the constitutional provisions under the Bill of Rights. The words of article 49 (1) (h) of the Constitution are clear that an arrested person has a right to be released on bail/bond pending a charge or trial unless there are compelling reasons. Under the Constitution and in particular articles 23, 29, and 258 the court is empowered to hear and determine applications relating to denial, violation, or infringement of or threat to a right or fundamental freedom in the Bill of Rights.

17. That the current Constitution protects the applicant from harassment by state organs is not in doubt. The court in W’Njuguna v Republic, Nairobi Misc Cr Case No 710 of 2002, [2004] 1 KLR 520, set out the circumstances under which anticipatory bail may be granted in the following terms: -“…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.”

18. The remedies permitted in article 23 of the Constitution of Kenya as a whole are tailored toward addressing any infringement of right envisaged in cases, where parties seek anticipatory bail especially due to the lack of a statutory framework for it.

19. In the instant application, the applicant contended that his right under article 29 in respect of his freedom, security of his person and his freedom of movements have been infringed. He claimed to have received calls from officers who claimed to be CID and were intimidating him. He contended that he is apprehensive that unless he is granted the orders sought, he will be arrested and deported. He is currently seeking a review of the orders denying him a work permit.

20. The applicant has blamed all his woes on the interested party, with whom they have a dispute before the chief magistrate’s court sitting in Milimani. He has also blamed her for the denial of a work permit. It is for this reason that the applicant claims that he is being harassed.

21. The 4th respondent has denied the allegations and has stated that its mandate is provided for under the law and the applicant should follow the correct procedure in his application for a work permit. The interested party, on the other hand, also adopted and reiterated the averments by the 4th respondent. She denied using her office or officers of the law to harass the applicant in any form or manner.

22. Other than making mere allegations, the applicant did not provide proof thereof. Accordingly, having carefully considered the affidavit evidence, and the written submissions by the parties herein, this court does not find any evidence that the applicant’s fundamental rights have been breached or denied or that there is a threat of them being infringed, contravened or violated.

23. Investigations are legal processes aimed at a fact finding of commission of crime in our justice system and do not amount to infringement of the rights or fundamental freedoms of the person, who is under investigation. As long as investigations are carried out in accordance with the law and rules, the processes thereto must be allowed to run their course for the proper administration of justice.

24. Consequently, this court finds that the application has not met the threshold for the grant of the orders sought.

25. In the premises, I find that the applicant’s notice of motion dated August 8, 2022is without merit and is hereby dismissed. I make no orders as to costs.

26. Nairobi High Court Misc Criminal Application No E220 of 2022 Nadeem Shakoor Khan v Director of Public Prosecutions & 3 others

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 8TH DAY OF DECEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMr. Mwale for the applicantMs. Chege for the respondentMs. Omuya for the interested party