https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9351

Chepkorir v Republic (Miscellaneous Criminal Application E083 of 2026) [2026] KEHC 9351 (KLR) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 9351 (KLR) Republic of Kenya In the High Court at Kakamega Miscellaneous Criminal Application E083 of 2026 S Mbungi, J June 22, 2026 IN THE MATTER OF APPLICATION FOR ANTICIPATORY BAIL Between Rael Chepkorir Applicant and Republic Respondent Ruling 1.The Applicant herein, Rael Chepkorir, on 18th May 2026, filed a notice of motion application seeking the following orders;a.This application is certified as urgent and will be heard on a priority basis. (spent)b.This honourable court be pleased to arrest the applicant subject now before the court and thereafter grant her bail or bond pending the hearing and determination of this application.c.This honourable court does admit the applicant herein to bail pending institution of criminal charges, if any.d.This honourable court be pleased to make such orders that may protect the applicant from arrest and/ or harassment from members of the police force relating to the facts deponed herein.e.That, in case of arrest, the application be bonded during any investigations. 2.The application is premised on the grounds set out on its face and on the supporting affidavit sworn on the same date by the Applicant, who asserts that she operated a petrol pump station at Nasianda market in 2020 with her husband and that her neighbour, who operates a shylock business, had threatened her through the mobile phone to vacate the business premises. She claimed that she forwarded the complaint to the Nyumba Kumi, the village elders, and the chief in Conjoin ward, and that on 1st April 2026, she was summoned but failed to attend. 3.She stated that she reported the matter to the Nangila police station in OB NO 16/04/05/2026 at 5.30 two days later, and she was informed her case was assigned to CPL Ondieki. He claimed that she found out that her husband, Alicen Kibet, had threatened her at the police station. 4.She claimed that the situation at Nangila police station was hostile to her and the locals, and she felt threatened as the person who threatened her was the wife of a senior officer. 5.At the time of writing the submission, there was no response from the respondent and none of the parties had filed their submissions. Analysis And Determination 6.This court has carefully considered the application dated 18th May 2026, and the supporting affidavit sworn by the Applicant. The Applicant is seeking anticipatory bail, protection from arrest, and orders restraining the police from arresting or harassing her pending investigations and before any criminal charges are preferred against her. 7.The jurisdiction of this Court to grant anticipatory bail is derived from Articles 22, 23, 29, 49, and 165 of the Constitution. However, it is now firmly settled that anticipatory bail is an exceptional remedy and is not available merely because a person apprehends arrest or fears that a complaint has been lodged against him or her. 8.In this case, for the applicant to be granted the anticipatory bail had to demonstrate, through credible evidence, that there exists a real and imminent threat to the enjoyment of her constitutional rights and freedoms arising from unlawful, arbitrary, or malicious conduct by the police. 9.In Samuel Muciri W’Njuguna v Republic [2004] KEHC 2651 (KLR), the Court held that anticipatory bail is only available where there are circumstances of serious breaches of a citizen’s rights by the State. The Court observed that the remedy is not intended to shield individuals from lawful investigations or lawful arrest where reasonable grounds exist. 10.Similarly, in Mandiki Luyeye v Republic [2015] eKLR, laid down the parameters for granting anticipatory bail. The High Court held that anticipatory bail is not intended to impede the constitutional and statutory mandate of investigative agencies. The Court emphasized that a person seeking anticipatory bail must demonstrate an imminent violation or threatened violation of constitutional rights and not merely speculate that he or she may be arrested. 11.The same principle was reiterated in Stephen Oluoch v Officer Commanding Station, Kisumu Police Station & Another [2020] eKLR, where the Court stated that the mere apprehension of arrest cannot justify the grant of anticipatory bail unless there is evidence that the intended arrest is actuated by malice, bad faith, ulterior motives, or is otherwise unconstitutional. 12.Further, in Republic v Chief Magistrate's Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703, the Court underscored that investigations and arrest, where warranted by law, form part of the criminal justice process and courts ought not to interfere unless there is clear evidence of abuse of power or violation of constitutional safeguards. 13.Applying the foregoing principles to the present application, the Applicant alleges that she operated a petrol station business with her husband and that she had disagreements with a neighbour who allegedly threatened her. She further states that she reported the matter to the police and that she later discovered that her husband had allegedly threatened her. She also contends that the atmosphere at Nangila Police Station was hostile and that she felt threatened because the person who threatened her was allegedly related to a senior police officer. 14.However, beyond these allegations, no material has been placed before the Court demonstrating that the police have threatened to arrest her unlawfully, have violated her constitutional rights, or have acted outside the law. The Applicant has not exhibited any summons, warrant of arrest, notice requiring her attendance, or any communication suggesting that the police intend to arrest her in a manner inconsistent with the Constitution. 15.Article 245 of the Constitution guarantees the operational independence of the National Police Service, while Sections 24 and 35 of the National Police Service Act mandate police officers to investigate crime and apprehend offenders. Courts must therefore be cautious not to interfere with investigative processes unless compelling evidence of abuse is demonstrated. 16.The Applicant's fears appear to be founded on her subjective belief that she may be arrested because of a dispute involving her neighbour and alleged hostility at the police station. Such apprehension, without any supporting evidence to her claim, cannot constitute a basis for the grant of anticipatory bail. 17.I further note that the Applicant seeks orders that she be admitted to bail pending the institution of criminal charges, if any. Such an order would effectively amount to immunizing the Applicant from lawful arrest and investigation. The courts have consistently declined invitations to issue blanket orders insulating persons from the due process of criminal investigations. 18.In Joseph Kuria Irungu v Republic [2016] eKLR, the Court observed that anticipatory bail cannot issue merely because investigations are ongoing or because a person fears that charges may eventually be preferred. The applicant must demonstrate actual or threatened violation of constitutional rights. No such violation has been demonstrated in the instant matter. 19.The Applicant has also sought protection against alleged harassment by police officers. Again, no particulars of harassment, intimidation, unlawful detention, or abuse of power have been presented before the court. The allegations remain general and unsupported by evidence. 20.Having evaluated the material before me, I am unable to find any factual basis upon which this court can conclude that the Applicant faces an imminent threat of unlawful arrest or violation of her constitutional rights. What emerges from the affidavit is, at best, a domestic dispute that may have attracted police attention. Such circumstances do not meet the threshold for the grant of anticipatory bail. 21.The Court is therefore satisfied that the Applicant has failed to demonstrate exceptional circumstances warranting the exercise of this court’s discretion in her favour. The application is premature, speculative, and unsupported by sufficient evidence of constitutional infringement. If the In charge Nangalo Police Station refuses to attend to her she can complain to his/her seniors (chain of police command) or lounge a complain at the ODPP. 22.Consequently, the Notice of Motion dated 18th May 2026 lacks merit and is hereby dismissed. 23.Right of Appeal 14 days. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 22ND DAY OF JUNE, 2026.S.MBUNGIJUDGEIn the presence of:-CA: Zildah/VelmaMs Emily Kiu for the ODPP present online.