[2012] KEHC 1515 (KLR)
The court found that while the applicant's grievance appeared genuine on its face, there was insufficient evidence at this interlocutory stage to determine whether the alleged threats by the police were made. The court recognized the statutory and constitutional powers of the police to arrest and search, provided...
Source-derived case information.
- Citation
- [2012] KEHC 1515 (KLR)
- Parties
- Applicant: Tim Jabalong; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Constitutional Reference 10 of 2012
- Procedural Posture
- Constitutional Reference / Interlocutory Application for Temporary Orders Pending Hearing of Petition
- Outcome
- Interlocutory orders granted in part; applicant to present himself to police; bond to expire after compliance; no further restraining orders issued.
- Legal Topics
- Police Powers, Right to Personal Security, Arrest and Search, Abuse of Power
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tim Jabalong
Applicant
Republic
Respondent
Procedural Posture
Constitutional Reference / Interlocutory Application for Temporary Orders Pending Hearing of Petition
Legal Issues
- 1 Whether the applicant is entitled to temporary orders restraining the police from arresting him pending the hearing of the petition.
- 2 Whether the police have acted in violation of the applicant's constitutional rights by threatening to shoot him.
- 3 Whether the court should intervene to limit police powers of arrest and search in the circumstances.
Ratio Decidendi
The court found that while the applicant's grievance appeared genuine on its face, there was insufficient evidence at this interlocutory stage to determine whether the alleged threats by the police were made. The court recognized the statutory and constitutional powers of the police to arrest and search, provided these are not exercised arbitrarily or in violation of rights. However, the court declined to grant blanket restraining orders against the police, as this would unduly interfere with their lawful mandate. Instead, the court ordered the applicant to present himself to the police within seven days and clarified the status of his bond, balancing the applicant's concerns with the...
Court Disposition
Interlocutory orders granted in part; applicant to present himself to police; bond to expire after compliance; no further restraining orders issued.
Orders
- The applicant shall present himself to the Bondo OCPD or OCS within the next 7 days from the date of the ruling.
- The present bond granted to the applicant of Kshs. 500,000 shall expire after 7 days from the ruling and after the applicant has presented himself to the police officers.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
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TIM JABALONG..............................................................................PETITIONER
VERSUS
REPUBLIC....................................................................................RESPONDENT
R U L I N G
The applicant's application dated 18-5-2012 prays for temporary orders to restrain the OCS, the OCPD Bondo from arresting him pending the hearing and determination of the petition. The same is supported by his own affidavit sworn in 18-5-2012.
The respondent chose not to file any response but the learned state counsel argued several legal principles. The applicant contends that the police officers on two occassions have gone to his home in search of him on a suspicion that he owns a firearm.
He further states that they have threatened that they shall shoot him as soon as he is spotted.
I have perused the entire application. On the face of it there is a genuine grievance on the part of the applicant. What I am unable at this juncture to tell is whether indeed such threats to shoot and kill was issued by the police. If this is so then it is a grave matter. This nonetheless is left for the substantive hearing.
Section 29 of the criminal Procedure Code chapter 75 laws of Kenya nonetheless grants the police the enabling authority to carry searches and arrests with or without warrants. These powers should not however be done arbitrarily and without taking into consideration the welfare and the rights of such a suspect.
However the suspect equally cannot stop the police who have been mandated by the constitution and other relevant laws to carry out protective rights of the citizenry.
In the premises and pending the hearing of the petition, I shall make the following orders:-
(1)The applicant shall present himself to the Bondo OCPD or OCS within the next 7 days from the date herein.
(2)The present bond granted to the applicant earlier on of Kshs. 500,000/= shall expire after 7 days from the ruling herein and for avoidance of doubt after the applicant shall have presented himself to the said police officers.
I make no further orders as the same shall amount to gagging the legitimate powers of the police outlined above. Costs shall abide the substantive petition.
Dated, signed and delivered at Kisumu this 29th day of October 2012.
H.K. CHEMITEI JUDGE
In the presence of:
No appearance for the petitioner
No appearance for the respondent
HKC/va