[2007] KEHC 3750 (KLR)
The court found that the applicant's fears were objectively justified due to the lack of formal police procedure and the publicized threat of arrest in connection with Mungiki activities. The court held that it had jurisdiction to grant anticipatory bail to protect the applicant's liberty and ensure that any police...
Source-derived case information.
- Citation
- [2007] KEHC 3750 (KLR)
- Parties
- Applicant: Hon. William Kabogo Gitau; Respondent: Republic of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Judgment Date
- 29 May 2007
- Case Number
- Miscellaneous Criminal Application 365 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Anticipatory Bail Application
- Outcome
- anticipatory bail granted with conditions
- Judges
- JB Ojwang
- Legal Topics
- Anticipatory Bail, Personal Liberty, Police Powers, Pre Trial Procedure
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. William Kabogo Gitau
Applicant
Republic of Kenya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Anticipatory Bail Application
Legal Issues
- 1 Whether the applicant is entitled to anticipatory bail in light of fears for his safety and liberty.
- 2 Whether the court has jurisdiction to grant anticipatory bail before any formal arrest or charge.
- 3 Whether the conduct of the police justified the applicant's apprehension of unlawful detention.
Ratio Decidendi
The court found that the applicant's fears were objectively justified due to the lack of formal police procedure and the publicized threat of arrest in connection with Mungiki activities. The court held that it had jurisdiction to grant anticipatory bail to protect the applicant's liberty and ensure that any police action would be subject to judicial oversight and the safeguards provided by law. The court emphasized that anticipatory bail is warranted where there is a credible threat of arrest or detention outside the legal process, and that the applicant had not sought to impede police investigations but only to secure his rights. Accordingly, the court granted anticipatory bail subject...
Court Disposition
anticipatory bail granted with conditions
Orders
- The applicant is granted anticipatory bail; if arrested and charged with a bailable offence, he shall enjoy this bail at all times, subject to further court orders.
- The applicant is admitted to a personal bond of KES 100,000 to be executed if not already done.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO. 365 OF 2007
IN THE MATTER OF HON. WILLIAM KABOGO GITAU
HON. WILLIAM KABOGO GITAU…………......……….APPLICANT
VERSUS
REPUBLIC OF KENYA………………………………RESPONDENT
RULING
The Originating Motion of 25. 5.2007 came up before me at an ex parte stage, under certificate of urgency, on that same date.
Its purpose was to secure for the applicant anticipatory bail. The applicant had not wanted to challenge any police initiatives in the investigation of crime, even if this involved interviewing him, or even laying charges against him.
But the applicant had a fear for his own safety, because the police never pursued any public, official, or recognized legal process of interviewing him or, indeed, even of notifying him and summoning him to attend at their offices.
The applicant only heard through rumours, as well as through media reports, that the police were following in his trail. He feared for his safety, because he did not perceive that that was the official or the lawful procedure of police investigations.
The application was supported by an affidavit which described the set of facts which had led the applicant to have such fear.
The press reports gave the impression that the applicant was likely to be arrested in connection with the unlawful activities of a grouping known as Mungiki. Since this Mungiki phenomenon is now generally recognized as a threat to national security – and this Court takes judicial notice of that fact – the appellant feared that if the police arrested him in such a cloud, they would be tempted to handle his matter purely informally, and not in accordance with the law that regulates police investigations. He feared that the police would compromise his liberty by detaining him for prolonged periods, outside the safety measures provided by law, and enforced by the judicial process.
I think those circumstances give objective cause for the applicant’s fears. And those circumstances provide a good basis for the applicant to come to Court at this preliminary stage.
I note with satisfaction, that learned State Counsel Mr. Makura has acknowledged the legal position stated by learned counsel for the applicant, Mr. Orengo : that in the circumstances, this court has the jurisdiction to grant the applicant anticipatory bail.
At the end of this inter partes hearing of the application, I will now make orders as follows, in place of the interim orders which I had made on 25. 5.2007:
1. The applicant is hereby granted anticipatory bail and if he shall be arrested at any time in respect of the matters contemplated, and charged with a bailable offence, he shall enjoy this bail at all times, subject to such orders as the Court may make.
2. The applicant is admitted to a personal bond of Kenya Shillings 100,000/= which he shall execute if it has not already be executed.
3. There shall be a surety for the sum of Kshs.100,000/=, which sum has already been deposited in Court.
4. The applicant shall present himself at the CID Headquarters on Thursday 31. 5.2007 at 9. 00 a.m. – for the purpose of recording any statement or in any other manner helping the police with investigations, and for this purpose he may appear with his advocates.
Orders accordingly.
J.B. OJWANG
JUDGE
29. 5.2007