[2023] KEHC 20853 (KLR)
The applicant failed to provide evidence of a real or imminent threat of arrest or violation of her constitutional rights. The court found that the allegations were unsubstantiated and that the state had denied any intimidation or threat. The Constitution already provides adequate safeguards for arrested persons,...
Source-derived case information.
- Citation
- [2023] KEHC 20853 (KLR)
- Parties
- Applicant: Fridah Kanja Muthaura; Respondent: Inspector General Of Police; Respondent: Director Of Criminal Investigations; Respondent: Office Of The Director Of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E017 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Conservatory Order Application
- Outcome
- application dismissed
- Judges
- LW Gitari
- Legal Topics
- Conservatory Orders, Arrest and Detention, Constitutional Rights Enforcement, Police Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fridah Kanja Muthaura
Applicant
Inspector General Of Police
Respondent
Director Of Criminal Investigations
Respondent
Office Of The Director Of Public Prosecution
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Conservatory Order Application
Legal Issues
- 1 Whether the applicant has demonstrated a real threat of arrest or violation of her constitutional rights by the respondents.
- 2 Whether the court should issue a conservatory order restraining the police and related authorities from arresting or interfering with the applicant.
Ratio Decidendi
The applicant failed to provide evidence of a real or imminent threat of arrest or violation of her constitutional rights. The court found that the allegations were unsubstantiated and that the state had denied any intimidation or threat. The Constitution already provides adequate safeguards for arrested persons, and the applicant did not demonstrate that these rights were likely to be violated. Furthermore, the police have a statutory duty to investigate crimes, and the court cannot restrain them from performing their lawful functions in the absence of clear evidence of abuse or harassment. Consequently, the application for conservatory orders lacked merit and was declined.
Court Disposition
application dismissed
Orders
- The application for conservatory orders is declined.
Full Case Text
Judgment text and source record
25 paragraphs
Muthaura v Inspector General of Police & 2 others (Miscellaneous Criminal Application E017 of 2023) [2023] KEHC 20853 (KLR) (21 June 2023) (Ruling)
Neutral citation: [2023] KEHC 20853 (KLR)
Republic of Kenya
In the High Court at Chuka
Miscellaneous Criminal Application E017 of 2023
LW Gitari, J
June 21, 2023
Between
Fridah Kanja Muthaura
Applicant
and
Inspector General Of Police
1st Respondent
Director Of Criminal Investigations
2nd Respondent
Office Of The Dirctor Of Public Prosecution
3rd Respondent
Ruling
1. The applicant filed a notice of notion dated June 16, 2023 seeking an order that a conservatory order restraining the respondents, their servants, agents, junior officer, informers and or anybody from effecting and/or anybody from arresting, harassing or otherwise however interfering with the applicant herein pending the hearing and determination of this application. The application is supported by her affidavit sworn on June 16, 2023. She has alleged that her rights have been violated and threatened as the police as well as informers have been traversing her and business premises with the aim of arresting her following a directive by the Deputy President in his campaign against alcohol. The respondents through Ms Mbithe, state counsel representing the DPP has opposed the application and stated that the police cannot be restrained from doing their work. She further submits there is nothing to show that she was been intimidated.
2. I have considered the application and the submissions. I find that the applicant has not laid any supporting evidence to proof that there is a real threat of her being arrested. The state has denied that the applicant has been intimidated or threatened. The applicant has not demonstrated that there is a real threat of violation of her rights.
3. On the other hand, theConstitution of Kenya 2010 has put in place measures to protect a citizen even where there may be arbitrary arrest. Article 49 (1) (a)&(f) provides inter alia that an arrested person has the right-(i)to be informed the reason for the arrest.(f)to be brought before court as soon as reasonably possible but not later than(i)twenty four hours after being arrested.(h)to be released on bond or bail on reasonable conditions pending charge unless there are compelling reasons not to be released.
4. It is therefore unlikely that her rights will be violated as the police have a duty to produce her in court promptly. It is my view that the applicant has not demonstrated that she is likely to be arrested or that her rights will be violated.
5. On the other hand, as submitted by Ms Mbithe, the police have a duty to investigate crimes and the court cannot restrain them from performing their work. The applicant has not demonstrated that the actions by the police and their informers amounts to harassment. I find that the applicant has not demonstrated that there are merits in her application.
6. I decline to issue the orders.
DATED, SIGNED AND DELIVERED AT CHUKA THIS 21ST DAY OF JUNE 2023. L.W. GITARIJUDGE