[2023] KEHC 740 (KLR)
The court held that since the applicant had complied with the anticipatory bail conditions, reported to the DCI, and there was no evidence of intent to abscond, he should remain on bond until the ODPP makes a decision on whether to charge him. The court found that arrest is not unlawful per se, but in the...
Source-derived case information.
- Citation
- [2023] KEHC 740 (KLR)
- Parties
- Applicant: Joshua Abong’o Okumbe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E154 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Anticipatory Bail and Closure of Proceedings
- Outcome
- Proceedings closed; applicant to remain on bond until ODPP communicates charging decision.
- Judges
- RE Aburili
- Legal Topics
- Anticipatory Bail, Police Powers, Prosecutorial Discretion, Arrest Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Abong’o Okumbe
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Anticipatory Bail and Closure of Proceedings
Legal Issues
- 1 Whether the applicant is entitled to continued protection from arrest pending a decision by the ODPP on whether to charge him.
- 2 Whether the oral undertaking by the prosecution counsel not to arrest the applicant is binding.
- 3 Whether the applicant should remain on bond until a charging decision is made.
Ratio Decidendi
The court held that since the applicant had complied with the anticipatory bail conditions, reported to the DCI, and there was no evidence of intent to abscond, he should remain on bond until the ODPP makes a decision on whether to charge him. The court found that arrest is not unlawful per se, but in the circumstances, to protect the applicant's rights and health, he should be notified to attend court for plea taking if charged, without being arrested. The oral undertaking by the prosecution was deemed non-binding, and the court exercised its discretion to extend the bond and close the proceedings, subject to communication from the ODPP regarding the charging decision.
Court Disposition
Proceedings closed; applicant to remain on bond until ODPP communicates charging decision.
Orders
- Applicant shall remain on bond as granted by the court until the ODPP communicates its decision.
- If the ODPP decides to charge, the applicant shall be notified to attend court for plea taking without arrest.
Full Case Text
Judgment text and source record
24 paragraphs
Okumbe v Republic (Miscellaneous Criminal Application E154 of 2022) [2023] KEHC 740 (KLR) (14 February 2023) (Ruling)
Neutral citation: [2023] KEHC 740 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E154 of 2022
RE Aburili, J
February 14, 2023
Between
Joshua Abong’o Okumbe
Applicant
and
Republic
Respondent
Ruling
1. This file cannot remain open indefinitely.
2. The applicant came to court to forestall the impending arrest on a Friday as he had been summoned by DCI Siaya to report to the police station yet he was a resident of Nairobi County and therefore it was not possible for him to attend to the police summons.
3. After getting anticipatory bail, the applicant did report to the DCI Siaya and he was processed. He recorded a statement and the DCI informed him that he will be notified once a decision is made on whether to charge him or not.
4. The matter has been mentioned severally but the ODPP has not made any decision to charge the applicant; although the decision lies with them and not DCI. Mr Soita prosecution counsel is in court and he submits that the applicant shall not be arrested. That oral undertaking is not binding from a constitutional office.
5. In any event, arrest in itself is not unlawful and neither is the decision to charge the applicant with a cognizable offence.
6. However, in view of the fears expressed by the applicant before court that the DCI sought to arrest him when he was away and sick which then would have adversely affected his health, I hereby order that as the DCI Investigations file is not closed, the applicant shall remain on bond as granted by this court and in the event that a decision is reached to charge him with an offence, then he shall be notified to attend court for plea taking without any arrest being carried out as he is a person from within the jurisdiction of this court and there is no evidence that he or at all intends to leave the jurisdiction of the court considering that the dispute is over family property.
7. Accordingly, these proceedings are closed. However, should the ODPP make a decision not to charge the applicant, this shall be communicated to him in writing to enable him apply to this court for refund of cash bail deposited into court. Bond as granted to the applicant is extended until the ODPP communicates to the applicant.
8. I so order.
9. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 14THDAY OF FEBRUARY, 2023R E ABURILIJUDGE