[2023] KEHC 23388 (KLR)
The court found that the apprehension of arrest by the applicants had been diminished by ongoing bilateral talks between the governing party and the opposition, rendering the application for anticipatory bail overtaken by events. The court further held that it cannot curtail the statutory mandate of the police to...
Source-derived case information.
- Citation
- [2023] KEHC 23388 (KLR)
- Parties
- Applicant: Stewart Madzayo; Applicant: Amina Mnyanzi; Applicant: Paul Katana; Applicant: Betty Kache Mwavuo; Applicant: Oscar Iha Wanje; Applicant: Brown Safari; Applicant: Ibrahim Abdi; Applicant: Rashid Odhiambo; Applicant: Twahir Abdulkarim; Applicant: Ray Katana; Applicant: Haron Nduti Tete; Applicant: Moses Furaha Keah; Respondent: Director Of Public Prosecutions; Respondent: Inspector General Of Police
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E097 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Anticipatory Bail Application
- Outcome
- application dismissed
- Judges
- A. Ong’injo
- Legal Topics
- Anticipatory Bail, Arrest and Detention, Fundamental Rights, Freedom of Assembly, Political Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stewart Madzayo
Applicant
Amina Mnyanzi
Applicant
Paul Katana
Applicant
Betty Kache Mwavuo
Applicant
Oscar Iha Wanje
Applicant
Brown Safari
Applicant
Ibrahim Abdi
Applicant
Rashid Odhiambo
Applicant
Twahir Abdulkarim
Applicant
Ray Katana
Applicant
Haron Nduti Tete
Applicant
Moses Furaha Keah
Applicant
Director Of Public Prosecutions
Respondent
Inspector General Of Police
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Anticipatory Bail Application
Legal Issues
- 1 Whether the applicants are entitled to anticipatory bail to prevent their arrest by law enforcement authorities.
- 2 Whether the court should restrain the police from arresting the applicants in connection with their political activities.
- 3 Whether the applicants' constitutional rights are threatened by the anticipated arrest.
Ratio Decidendi
The court found that the apprehension of arrest by the applicants had been diminished by ongoing bilateral talks between the governing party and the opposition, rendering the application for anticipatory bail overtaken by events. The court further held that it cannot curtail the statutory mandate of the police to investigate and arrest persons suspected of committing offences as provided under section 24 of the National Police Service Act. There was no sufficient evidence of a real and imminent threat to the applicants' constitutional rights that would justify the grant of anticipatory bail or restraining orders against the police. Accordingly, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application for anticipatory bail is dismissed.
- No orders are issued restraining the police from executing their mandate.
Full Case Text
Judgment text and source record
46 paragraphs
Madzayo & 11 others v Director of Public Prosecutions & another (Miscellaneous Criminal Application E097 of 2023) [2023] KEHC 23388 (KLR) (28 September 2023) (Ruling)
Neutral citation: [2023] KEHC 23388 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Criminal Application E097 of 2023
A. Ong’injo, J
September 28, 2023
IN THE MATTER OF ARTICLE 2, 19, 20, 22, 23, 25, 27, 29, 47, 48, 49, 50, 258, 259, AND 260 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF FREEDOM AND SECURITY OF PERSONS
Between
Stewart Madzayo
1st Applicant
Amina Mnyanzi
2nd Applicant
Paul Katana
3rd Applicant
Betty Kache Mwavuo
4th Applicant
Oscar Iha Wanje
5th Applicant
Brown Safari
6th Applicant
Ibrahim Abdi
7th Applicant
Rashid Odhiambo
8th Applicant
Twahir Abdulkarim
9th Applicant
Ray Katana
10th Applicant
Haron Nduti Tete
11th Applicant
Moses Furaha Keah
12th Applicant
and
Director Of Public Prosecutions
1st Respondent
Inspector General Of Police
2nd Respondent
Ruling
1. The applicants approached this court vide notice of motion application dated July 23, 2023 under certificate of urgency and the supporting affidavit thereto sworn by Mr Danstan Omari Advocate for the applicants seeking that this honourable court be pleased to the applicants herein anticipatory bail at such terms and conditions that this honourable court may deem just and fit in the circumstance to secure their attendance before the Directorate of Criminal Investigations for questioning or statement recording or for other incidental purposes.
2. The applicants also prayed that this honourable court be pleased to restrain the 2nd respondent, their servants, agents or any other officer of the National Police Service or any other law enforcement officer from arresting the applicants herein.
3. The said application was on grounds that the applicants were ardent members of the official opposition, the one Kenya Azimio Alliance and strong supporters of the Orange Democratic Movement party leader Raila Odinga. That persons and politicians linked with Raila Odinga and the Orange Democratic Party were arbitrarily arrested and faced trumped up charges in regard to the nationwide demonstrations by Kenyans in opposition.
4. That unless this court admits the applicants to anticipatory bail, their rights to a fair hearing, right to peacefully demonstrate, to freedom of movement and to associate freely with others exercising their political rights will be violated.
5. This court cannot curtail the mandate of the 2nd respondent, their servants, agents or any officer of the National Police Service or any other law enforcement officer from executing their mandate as provided for under section 24 of the National Police Service ActNo 11 A of 2011 where it is suspected an offence is being or is about to be committed..
6. The apprehension that the applicants are likely to be arrested has now been diminished by the bilateral talks between the governing party and the opposition and as such application is overtaken by events.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS THIS 28TH DAY OF SEPTEMBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for RespondentMr. Mabeya Advocate H/B for Mr. Omari Advocate for the ApplicantsNo appearance for ApplicantHON. LADY JUSTICE A. ONG’INJOJUDGE