https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10613

Warui v Director of Public Prosecutions & 2 others (Miscellaneous Application E038 of 2026) [2026] KEHC 10613 (KLR) (Constitutional and Human Rights) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10613 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Miscellaneous Application E038 of 2026 D Mburu, J July 16, 2026 IN THE MATTER OF ARTICLES 22, 23, 27, 28, 29, 47, 49 AND 50 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF AN APPLICATION FOR ANTICIPATORY BAIL Between Mary Wanjiku Warui Applicant and The Director Of Public Prosecutions 1st Respondent The Inspector General Of Police 2nd Respondent The Director Of Criminal Investigations 3rd Respondent Ruling 1.Before this court is a Notice of Motion application dated 23rd June, 2026 expressed to be brought pursuant to Sections, 122 and 123 of the Criminal Procedure Code, Sections 1A, 18 & 3A of the Civil procedure Code, Articles 22, 23(3), 47, 49(1)(h) and 50 of the of Kenya, 2010. 2.It seeks the following substantive orders:-i.That the Application be certified as urgent and service thereof be dispensed with in the first instance.ii.That pending the hearing and determination of this Application interpartes, the Applicant be admitted to anticipatory bail on such terms and conditions as this Honourable Court may deem fit and just.iii.That pending the hearing and determination of this Application, the Respondents, whether by themselves, their agents, servants, officers or any person acting under their authority, be restrained from lawfully or otherwise arresting, detaining, harassing or intimidating the Applicant.iv.That in the event that the 2nd & 3rd Respondents require the attendance of the Applicant for purposes of investigations, they do so by way of summons addressed to and served through the Applicant's Advocates on record, giving not less than Seventy-Two (72) hours' prior notice, and upon the Applicant's attendance she be released unconditionally pursuant to the Anticipatory Bail granted herein.v.That the Inspector General of Police and officers acting under his command be directed to uphold the Applicant's constitutional rights and refrain from any arbitrary arrest or detention pending the hearing and determination of this Application.vi.That pending the hearing and determination of this Application, an order be and Is hereby issued directing the Officer Commanding Station. Kikuyu Police Station and/or such other officers as may be necessary to provide security and facilitate the Applicant's peaceful and unhindered access to the offices of Irungu & Warui Advocates situated in Gracewood Plaza, Kikuyu Town for purposes of accessing and securing client files, documents, office equipment and attending to the affairs of the firm, without interference, intimidation or harassment from any person whatsoever.vii.That there be liberty to apply for variation or discharge of these orders on reasonable notice to the Respondents.viii.That Costs of this Application be provided for. The Applicants’ Case 3.The application is premised on grounds on the face of the notice of motion and supported by the Applicants’ affidavit that was sworn on 23rd June, 2026. Their Written Submissions dated 10th July, 2026. 4.Their case was that the Applicant, an Advocate of the High Court of Kenya (Roll No. P105/17644/2020) and a partner formerly practicing under the name and style of Irungu & Warui Advocates alongside one Stanley Irungu Warui. 5.The relationship/partnership broke down due to irreconcilable differences and following the dissolution of the partnership, the relationship between the parties became acrimonious and characterized by disputes and mutual accusations and which led to the partner, Stanley Irungu Warui being charged for assault against the Applicant in court. 6.That the Applicant has reasonable grounds to apprehend that malicious and retaliatory criminal complaints may be lodged against her arising from the sour relationship. 7.That the Applicant verily believes that there exists a real and imminent threat of arrest and detention on trumped-up charges intended to harass, intimidate and embarrass her by the Respondents. 8.That arbitrary arrest and detention would occasion irreparable injury to the Applicant's liberty, dignity, reputation and professional standing. The Respondents’ Case 9.None of the respondents has filed any opposition to the application. Analysis and Determination 10.Having carefully considered the application, the supporting affidavit and the written submissions filed on behalf of the Applicant, I have deduced only one issue for determination thus: Does the application meet the threshold for grant of relief of anticipatory bail and conservatory orders? 11.Anticipatory bail is a special relief in criminal law and the High Court has authority under Article 22 and Article 165(3) of the Constitution to hear and determine applications for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. 12.In Kenya, in instances where anticipatory bail has been granted, it is based on infringement or real threat of infringement of rights and fundamental freedoms in the Bill of Rights as article 23 appropriate relief. 13.Anticipatory bail is ordinarily hemmed by law or by the court. India is a good example for it has hemmed the scope of anticipatory bail in statute and in specific directions issued only by the Sessions Court and High Court. This kind of hemming of anticipatory bail becomes necessary because, by its very nature, anticipatory bail may be abused, be at large and - perhaps most important - is potentially inhibitive of investigative mandate of the police and other investigative organs of the state. 14.Therefore, the standard of granting anticipatory bail as the appropriate relief under article 23(3) of the Constitution, should be proof of breach or threat of breach of the Bill of Rights in the measure stated in the case of W’Njuguna vs Republic (2004) eKLR (although pre-2010 Constitution decision), that anticipatory bail should be granted only:“…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.” 15.Odunga J. (as he then was) appreciated this novel philosophy and the standard required in evaluation of applications for anticipatory bail when he stated in the case of Republic vs Chief Magistrate Milimani & Another Exparte Tusker Mattresses Ltd & 3 Others [2013] eKLR as follows: -“However before going to the merits of the instant application it is important to note that what is sought to be prohibited is the continuation of investigation rather than a criminal trial. 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 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 as 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.” 16.The Applicant has claimed apprehension of arrest, detaining and intimidation by the respondents on threats from her former partner. She has not shown proof of the reasonable apprehension. Her claim is based on an assumption and mere apprehension that does not qualify to be infringement of rights and fundamental freedoms of the applicant in the sense of article 22 and 23 of the Constitution. 17.Orders that will impede criminal investigations should be on cogent and constitutionally-sound reasons. For instances as was stated in the case of W’Njuguna vs Republic (2004) eKLR such orders are granted only: -“…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.In the case of Mandiki Luyeye vs Republic [2015] eKLR, Ngenye J 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.” 19.Merely feeling threatened or inconvenienced by investigations is not sufficient reason for relief. Proof of violation, infringement or threat or contravention of a person’s rights under the Constitution of Kenya is required. The Applicant has made mere allegations but has not provided any proof. 20.Arrest and investigations are legal processes within our justice system that are aimed at fact finding of a commission of crime and do not translate to infringement of rights and fundamental freedoms. In any case, if there is no evidence, a person cannot be arrested and if arrested, the Applicant has a right to be admitted to bail by Court. 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 proper administration of justice. 21.In the upshot, this court hereby makes the inevitable conclusion that the application herein has not met the threshold for the granting of relief of anticipatory bail. 22.For the foregoing reasons, the Applicant’s Notice of Motion application dated 23rd June, 2026 is without merit and is hereby dismissed. 23.Given the nature of these proceedings, there shall be no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF JULY 2026.DAVID MBURUJUDGE