Kimoyo v Director of Public Prosecution & 2 others

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUSIA** **MISC. CRIMINAL APPLICATION NO. E045 OF 2026** **BRUNO OKOJO KIMOYO ...................................................... APPLICANT** **-VERSUS-** **DIRECTOR OF PUBLIC PROSECUTION .........................1ST RESPONDENT** **DIRECTORATE OF CRIMINAL INVESTIGATION.............2ND RESPONDENT** **INSPECTOR GENERAL OF POLICE .............................. 3RD RESPONDENT** **RULING** **I. INTRODUCTION & PROCEDURAL HISTORY** 1. Before this Court for determination is the Applicant’s Chamber Summons and Notice of Motion dated 2nd September 2026. The Applicant, Bruno Okojo Kimoyo, seeks orders admitting him to anticipatory bail and a conservatory order restraining the Respondents from arresting or charging him. 2. When this matter first came up for directions, this Court ordered immediate service upon the Respondents. At the initial hearing, the 1st Respondent was represented by Mr. Maliachi, learned counsel for the Director of Public Prosecutions (DPP), who took a neutral stance and left the application to the Court’s discretion. The 2nd and 3rd Respondents did not file any grounds of opposition. 3. However, during the oral highlights, legal issues emerged regarding the nature, frequency, and tracking of the alleged police summonses. Consequently, this Court directed the Applicant's advocate to file a Supplementary Affidavit to bring all material facts to light. The Applicant duly complied and filed the said Supplementary Affidavit, detailing a history of prior unprosecuted summonses, geographic hopping by investigative agencies, and a total lack of statutory formality in the state's current approach. **II. THE APPLICANT'S AMENDED CASE** 1. The Applicant’s case, as set out in his primary filings and detailed in his Supplementary Affidavit, establishes that he is employed as a Liaison Officer by **EN-WEALTH Organization**, tasked with processing payment requests for beneficiaries under the **Uzima Trust Fund**. The fund comprises money belonging to former employees of Mumias Sugar Company, which went under receivership in December 2024. 2. The Applicant states that, allegations have surfaced regarding the misappropriation of funds within the trust, with claims that payments were processed in favor of non-existent or wrong beneficiaries. While he explicitly maintains that these charges are spurious and that he is not the accounting officer of the fund, the core of his constitutional grievance lies in the oppressive manner in which the 2nd Respondent has conducted its inquiry. 3. The Supplementary Affidavit reveals that, the Applicant has been subjected to a repetitive, multi-agency investigation across different regions of the country without any formal statutory framework: * **First Encounter:** On **Friday, 31st July 2026**, the Applicant was formally confronted and summoned by **Linet Okiru** and **John Awiti**, who introduced themselves as Forensic Auditors attached to the **Directorate of Criminal Investigations (DCI) Forensic Department from Nairobi DCI Headquarters**. The Applicant fully complied and cooperated with their requests. * **Second Encounter:** Shortly thereafter, on **6th August 2026**, the Applicant was approached by an officer identified as **John Oscar**, who claimed to be attached to the local **DCI Busia Office**, investigating the exact same subject matter. The Applicant again submitted to the inquiry. * **Third Encounter:** On **1st September 2026** at 3:17 PM, the Applicant received a mobile call from **0710838759**. The caller identified himself as **Meshack Ombongi, a Director of Criminal Investigations attached to the Kakamega DCI Office**. The call lasted for 5 minutes and 57 seconds, as verified by a certified screenshot of the mobile call log marked as **Exhibit BOK-1**. 4. The said **Meshack Ombongi** commanded the Applicant to appear physically at the DCI Kakamega Office on Friday, 4th September 2026. Due to unavoidable circumstances, the date was adjusted to **Monday, 7th September 2026 at 10:00 AM**. 5. Crucially, the Applicant deposes that **no formal witness summons** under **Section 52 of the National Police Service Act** or any formal warrant has ever been issued by any of the three DCI stations. He contends that being informally bounced across the country—from Nairobi Headquarters to DCI Busia, and now to DCI Kakamega—to answer to the same unformulated allegations constitutes systematic **harassment, an abuse of administrative power, and an unlawful breach of his right to freedom of movement** under Article 39 of the Constitution. **III. ISSUES FOR DETERMINATION** 1. The Court identifies three core issues for determination: 2. ***Whether the history of informal, multi-station investigative summonses establishes a unique constitutional threshold for the grant of anticipatory bail.*** 3. ***Whether the state's investigative actions cross the line from a legitimate criminal inquiry into unlawful harassment and an abuse of process.*** 4. ***The appropriate structural remedies required to balance the state’s investigative mandate with the protection of the Applicant's liberty.*** **IV. ANALYSIS AND DETERMINATION** **1. The Jurisdictional Threshold and Prior Summonses** 1. The law regarding anticipatory bail in Kenya is well established. While it is not explicitly codified within the *Criminal Procedure Code (Cap 75)*, the High Court possesses wide jurisdiction under **Articles 23(3) and 165(3)(b) of the Constitution** to grant conservatory orders and bail where a threat to personal liberty is demonstrated. 2. As established in the foundational precedents of ***Hughes Douglas Cass v. Republic (2014) eKLR*** and ***Republic v. Inspector General of Police & 3 others ex parte Jimi Wanjigi (2018) eKLR***, an applicant must demonstrate an objective, imminent, and real threat to their liberty. Speculative or vague fears will not suffice. 3. The undisputed facts brought to light in the Supplementary Affidavit satisfy this high evidentiary threshold. The Applicant is not a flight risk or an individual evading the law. He has already submitted to questioning by **DCI Forensic Auditors from Nairobi** and **DCI Busia**. 4. When an individual has already yielded to questioning at two separate stations across the country, a third informal command to appear at a third station (DCI Kakamega) creates a strong presumption that the process is no longer purely investigative. The threat to his liberty has matured from a routine police query into an oppressive pattern of conduct, satisfying the strict requirements for High Court intervention under Articles 23(3) and 165(3)(b) of the Constitution. **2. Legitimate Investigation vs. Systemic Harassment** 1. This Court recognizes the absolute statutory power of the DCI and the Inspector General of Police to investigate crimes under the *National Police Service Act*. However, this power must be exercised within constitutional boundaries. Article 244 of the Constitution explicitly commands the National Police Service to comply with constitutional standards of human rights, fundamental freedoms, and due process. 2. Any exercise of statutory powers by fiat or oral and verbal orders should be abhorred in the era of accountability by public officers the 2nd and 3rd Respondents are not immune. 3. Bouncing a citizen from Nairobi to Busia, and then to Kakamega, without filing formal charges or issuing proper statutory summonses under Section 52 of the National Police Service Act, constitutes a clear procedural irregularity. Moving a suspect across different regions of the country without a clear explanation looks less like a focused investigation and more like administrative harassment designed to cause psychological and financial strain. 4. While the court will not block a legitimate investigation, it will not allow the state to bypass formal procedures to keep a citizen under a permanent cloud of threatened arrest. Because Mr. Maliachi for the DPP has left the matter to the Court's discretion, and because the Applicant has proved his prior cooperation, the court must step in to regulate the process. To protect the Applicant from arbitrary pre-trial detention during this ongoing process, he is entitled to the protective shield of anticipatory bail. **V. FINAL ORDERS** 1. Accordingly, the court issues the following resultant orders: 2. **THE APPLICANT'S MOTION IS HEREBY ALLOWED.** 3. **THE APPLICANT, BRUNO OKOJO KIMOYO, is hereby admitted to an Anticipatory Cash Bail of KShs. 200,000/= (Kenya Shillings Two Hundred Thousand Only) to be deposited in the High Court Registry at Busia.** 4. **IT IS HEREBY ORDERED that upon payment of the said cash bail, the Respondents, their agents, or servants are RESTRAINED from arresting, detaining, or locking up the Applicant in connection with any allegations concerning the Uzima Trust Fund under EN-WEALTH.** 5. **TO PREVENT FURTHER GEOGRAPHIC HARASSMENT, it is ordered that any future interviews or statement-recording sessions touching on alleged misappropriation of Uzima Trust Fund, shall be centralized and conducted exclusively at the DCI Divisional Headquarters in Busia, saving the Applicant from further arbitrary travel across the country.** 6. **THE APPLICANT IS DIRECTED to attend the upcoming interview session at DCI Kakamega on Monday, 7th September 2026 at 9:00 A.M. to assist in concluding the matter. He shall be accompanied by his advocate on record. The DCI Kakamega shall record his statement and immediately process his release under the strength of this Court's anticipatory bail order, without keeping him in police cells.** 7. **IT IS FURTHER ORDERED that if the Respondents complete their investigations and decide to prefer formal criminal charges against the Applicant, the DPP shall NOT effect a physical arrest. Instead, the state shall issue a formal Summons to Attend Court served through his advocates on record, directing the Applicant to appear voluntarily before a court of competent jurisdiction to take his plea.** 8. **The file shall remain alive with periodic mentions until the Applicant is formally arraigned and the 1st mention is scheduled for 23rd September 2026.** 9. **There shall be no order as to costs.** Orders accordingly. **DATED** and **DELIVERED** Virtually at **BUSIA** On this 4th day of September **2026** **S. MOHOCHI** **JUDGE**