[2012] KEHC 5972 (KLR)
The court found that, given the State's position and absence of opposition, the applicant's apprehension of arrest justified the grant of anticipatory bail to protect his constitutional rights. However, the court emphasized that this bail does not restrain the police from conducting investigations or charging the...
Source-derived case information.
- Citation
- [2012] KEHC 5972 (KLR)
- Parties
- Applicant: Hon. Mohamud Mohamed Ali; Respondent: The Attorney General; Respondent: The Commissioner of Police
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 33 of 2012
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Petition allowed with conditions.
- Judges
- DAS Majanja
- Legal Topics
- Right to Bail, Pre Charge Bail, Police Powers, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Mohamud Mohamed Ali
Applicant
The Attorney General
Respondent
The Commissioner of Police
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to anticipatory bail pending possible arrest and charging by the police.
- 2 Whether the court should restrain the police from arresting or charging the petitioner without sufficient evidence.
Ratio Decidendi
The court found that, given the State's position and absence of opposition, the applicant's apprehension of arrest justified the grant of anticipatory bail to protect his constitutional rights. However, the court emphasized that this bail does not restrain the police from conducting investigations or charging the applicant if evidence warrants. The balance between individual liberty and the public interest in law enforcement was maintained by requiring the applicant to cooperate with police investigations and by clarifying that the bail order does not shield him from lawful prosecution.
Court Disposition
Petition allowed with conditions.
Orders
- The petitioner is admitted to bail pending arrest.
- The petitioner shall deposit cash bail of Kshs.150,000 on condition that he avails himself to the Kenya Police for any investigation as and when required.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 33 OF 2012
BETWEEN
HON. MOHAMUD MOHAMED ALI .................................................APPLICANT
AND
THE ATTORNEY GENERAL.................................................1ST RESPONDENT
THE COMMISSIONER OF POLICE ...................................2ND RESPONDENT
JUDGMENT
1. This petition dated 3rd February 2012 before this Court is filed by the Member of Parliament for Moyale Constituency Mohamud Mohamed Ali. He seeks the following main orders:
(2) THAT your humble petitioner HON. MOHAMUD MOHAMED ALI be admitted to bail upon such terms as this Honourable Court may deem just pending filing of charges in any court of competent jurisdiction anywhere in Kenya by the Police as provided for under Article 22(1) of the Constitution.
2. In his affidavit sworn on 3rd February 2012, the petitioner is apprehensive that he will be arrested on suspicion of being involved in certain deadly and violent clashes that have taken place in his Constituency.
3. Counsel for the 2nd respondent Mr. Okello does not oppose the petition save that he is concerned that the investigation process must proceed and should there be reasonable evidence to charge the petitioner then he should face the law. He has also confirmed that there is no warrant of arrest in force.
4. I have considered the matter and in view of the position taken by the State, I shall allow the petition on the following terms;
(1)The petitioner is admitted to bail pending arrest.
(2)The petitioner shall deposit cash bail of Kshs.150,000/= on terms that he shall avail himself to the Kenya Police for any investigation as and when required.
(3)For the avoidance of doubt, this order does not restrain the Kenya Police from charging the petitioner should there be such evidence to commence criminal proceedings against him.
(4)There shall be no order as to costs.
D.S. MAJANJA
JUDGE
8. 2.2012
ORDER:Judgement read in open court.
D.S. MAJANJA
JUDGE
8. 2.2012