[2023] KEHC 19212 (KLR)
The court found that although anticipatory bail is not expressly provided for in the Constitution, the right to liberty is a fundamental right protected by the Constitution. The court has inherent jurisdiction to grant anticipatory bail where there is a real and imminent threat to this right. Upon reviewing the...
Source-derived case information.
- Citation
- [2023] KEHC 19212 (KLR)
- Parties
- Applicant: Nikesh Popatlal Shah; Applicant: Bhavini Nikesh Shah; Respondent: Director of Criminal Investigations; Respondent: Inspector General of Police; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E237 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Anticipatory Bail
- Outcome
- Application for anticipatory bail granted pending inter partes hearing.
- Judges
- DR Kavedza
- Legal Topics
- Anticipatory Bail, Right to Liberty, Bail Before Arrest
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nikesh Popatlal Shah
Applicant
Bhavini Nikesh Shah
Applicant
Director of Criminal Investigations
Respondent
Inspector General of Police
Respondent
Director of Public Prosecution
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Anticipatory Bail
Legal Issues
- 1 Whether the applicants are entitled to anticipatory bail before arrest or charge.
- 2 Whether the Constitution or any statute provides for anticipatory bail in Kenya.
- 3 Whether the applicants have demonstrated sufficient grounds for the grant of anticipatory bail.
Ratio Decidendi
The court found that although anticipatory bail is not expressly provided for in the Constitution, the right to liberty is a fundamental right protected by the Constitution. The court has inherent jurisdiction to grant anticipatory bail where there is a real and imminent threat to this right. Upon reviewing the affidavit and annexures provided by the applicants, the court was satisfied that the applicants had demonstrated sufficient grounds for the grant of anticipatory bail. The court therefore admitted the applicants to anticipatory bail of Kshs 100,000 each pending the hearing and determination of the application inter partes, and issued further directions regarding service and responses.
Court Disposition
Application for anticipatory bail granted pending inter partes hearing.
Orders
- The application is certified as urgent.
- The applicants are admitted to anticipatory bail of Kshs 100,000 each pending hearing and determination of the application inter partes.
Full Case Text
Judgment text and source record
26 paragraphs
Shah & another v Director of Criminal Investigations & 2 others (Miscellaneous Criminal Application E237 of 2023) [2023] KEHC 19212 (KLR) (Crim) (29 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19212 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Miscellaneous Criminal Application E237 of 2023
DR Kavedza, J
June 29, 2023
Between
Nikesh Popatlal Shah
1st Applicant
Bhavini Nikesh Shah
2nd Applicant
and
Director of Criminal Investigations
1st Respondent
Inspector General of Police
2nd Respondent
Director of Public Prosecution
3rd Respondent
Ruling
1. The applicants have filed a Notice of Motion Application under Articles 23, 24, 29, 49, 159, 165 and 258 of the Constitution. The application is filed under certificate of urgency supported by an affidavit dated June 27, 2023, sworn by the 1st applicant. The applicants seek orders, inter alia, for anticipatory bail or bail before arrest and/or charge on such terms as the court may deem fit.
2. Although the applicants have listed various articles of the Constitution, none of them specifically refer to anticipatory orders.
3. I do note that anticipatory bail is not specifically provided for under the Constitution. However, the Constitution mandates the government to protect and respect the rights of all Kenyans, this includes the right to liberty.
4. Having gone through the affidavit of the 1st applicant and the annexures, I am satisfied that the application is merited and issue the following orders:a.That the application is certified as urgent.b.That the applicants are admitted to anticipatory bail of Kshs 100,000/= each pending hearing and determination of the application interpartes.c.That the applicants’ advocates are directed to escort the applicants to the offices of the 1st respondent for questioning on July 3, 2023. d.That this order and the application to be served upon the respondents within 3 days.e.That upon service, the respondents shall have ten (10) days to file their responses and not later than July 17, 2023. f.That this matter shall be mentioned on July 21, 2023 for directions.
RULING DATED AND DELIVERED VIRTUALLY ON 29TH DAY OF JUNE, 2023. ...................................D. KAVEDZAJUDGE