[2022] KEHC 27015 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL DIVISION

MISCELLANEOUS CRIMINAL APPLICATION NO. E077 OF 2021

IN THE MATTER OF ARTICLE 2, 19, 20, 22, 23, 25, 27, 29, 47, 48,

49, 50, 258, 259 AND 260 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF FREEDOM OF SECURITY OF PERSONS

BETWEEN

YOBESH ONWONG’A OYARO....................................................................1ST APPLICANT

HARON MOGAKA ONWONG’A.................................................................2ND APPLICANT

TRUPHENA NYABOKE.................................................................................3RD APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTION...............................................1ST RESPONDENT

DIRECTOR OF CRIMINAL INVESTIGATION

CID HEADQUARTERS...............................................................................2ND RESPONDENT

THE DIRECTOR OF CID HEAD OFFICE...............................................3RD RESPONDENT

INSPECTOR GENERAL OF POLICE.......................................................4TH RESPONDENT

RULING

Application

1. The applications dated 30th August 2021 and 13th September 2021 were brought under Articles 19, 20, 21, 22, 23, 28, 29, 49, 165 (6), 258 & 259 of the Constitution of Kenya, Section 123 (1) part 5 of the Criminal Procedure Code cap 75 of the laws of Kenya, Section 1A, 1B & 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, Bail and Bond Policy of 2015, Rules 3 (1)(2) of the High Court (Practice and Procedure Rules), Section 10 of the Judicature Act, and all other enabling provisions of the law.

2. The Applicants seek for the following orders in the application dated 30th August 2021 from the Honourable Court: -

a) That the instant application be certified as urgent and the same be heard ex-parte in the first instance.

b) That the Honourable Court be pleased to grant the Applicants anticipatory bail and or bond terms pending arrest or charge on such terms the court may deem fit to impose.

c) That this Honourable Court be pleased to issue an interim conservatory order restraining the Respondents, their Servants, agents, junior officers, and/or anybody from arresting, harassing or otherwise interfering with Applicants herein pending the hearing and determination of this application.

d) That this Honourable Court be pleased to issue an interim conservatory order restraining the Respondents, their servants, agents, junior officers and/or anybody from however interfering with the Applicant’s property, including but not limited to their motor vehicles, homes, commercial and personal properties herein pending the hearing and determination of this application.

e) That the Honourable Court be pleased to order the 3rd Respondent to immediately release all personal properties belonging to the 3rd Applicant in its possession including but not limited to the 3rd Applicant’s mobile phone(s).

f) That this Honourable Court be pleased to issue a permanent conservatory order restraining the Respondents, their servants, agents, junior officers and/or anybody from arresting, harassing or otherwise from however interfering with the Applicant’s property, including but not limited to their motor vehicles, homes, commercial and personal properties herein.

g) That this Honourable Court be pleased to grant an early an early hearing date for this application.

h) That the costs of the suit be in the cause.

i) Any other order that this court deems fit and just in the circumstances.

3. The application dated 30th August 2021 was supported by grounds on the face of the application and the Supporting Affidavit of the 1st Applicant Yobesh Onwong’a Oyaro sworn on 30th August 2021. On 6th September 2021, interim orders were granted pending hearing and determination of the application.

4. On 13th September 2021, the Applicants filed another application dated 13th September 2021 seeking that the Public Service Commission be added to the proceedings as an interested party and that the Public Service Commission be arrested from taking any or further action in respect to the letter dated 11th August 2021 addressed to the Applicant. The Applicant also sought that the 2nd Respondent should be barred from using any material collected from the Public Service Commission in respect of the letter dated 11th August 2021.

5. The application is supported by the grounds on the face of the application and affidavit of the 1st Applicant Yobesh Onwong’a Oyaro sworn on 13th September 2021.

6. Simon Odala Wabwire filed a Replying Affidavit sworn on 15th September 2021 in respect to application No. E077 and E079 of 2021 which are related and averred that he is the investigating officer where the 1st Applicant made a complaint vide OB No. 46/21/12/2020. That he recorded statements and summoned the 2nd Applicant Truphena Nyaboke Onwong’a whose phone was found to have sent a message to the 1st Applicant. That the 2rd Applicant surrendered her phone for forensic analysis but declined to record a statement.

7. Simon Odala indicated that investigations into the 1st Applicant’s complaint was still ongoing and upon conclusion, the investigation file will be forwarded to the office of the Director of Public Prosecutions for review and recommendations.

8. The 1st Applicant’s Supplementary Affidavit sworn on 12th October 2021 confirmed the averments by the Respondent, the extent of investigations having been carried out and goes further to urge the court that in the event that his wife is found to be culpable, then she should be considered for mental assessment as she has been treated before for deteriorating effects and she is currently having problems discerning facts from fiction.

9. The Application dated 13th September 2021 was canvassed by way of written submissions. The submissions filed were in respect of both applications No. E079 and E077 of 2021.

Applicants’ Submissions

10. The Applicants relied on the holding in W’njuguna v Republic [2004] 1 KLR at pages 520 and 532 which was cited with approval in the case of Miguna Miguna v DPP and 2 Others [2018] eKLR to support their position for anticipatory bail. The case of Gladys Boss Sholei v AG & 3 Others [2015] eKLR and Henry Kaskon Mwachi & 2 Others v Republic [2020] eKLR were also stated under the terms which a person may be granted anticipatory bail. The Applicants prayed for the protection of this court that it was demonstrated in the affidavits that the Respondents had actively threatened and infringed upon their fundamental rights to liberty, association, freedom of expression. Hence constantly intimidating them with endless arrest. The Applicants alleged that the Respondent’s actions are a mere gimmick and mockery to the constitutional mandate of the Respondent to investigate offences and prefer charges and are a violation of the Applicant’s rights.

11. The Applicant’s submissions were that the 1st Applicant’s former employer was requested by the 2nd Respondent to avail the 1st Applicant’s declaration of income, assets and liabilities and for that reason, he prayed that the Public Service Commission be added as an interested party and be barred from transmitting any material associated with the 1st Applicant. It was submitted that the Respondents were on a fishing expedition to unearth evidence in an attempt to charge the 1st Applicant with imaginary crimes and this violates Article 50 (4) of the Constitution.

Respondents’ Submissions

12. The Respondent’s submissions did not touch on the issues raised in both applications herein but rather in the Miscellaneous Criminal Application No. E079 of 2021.

Analysis and Determination

13. This court has considered the Notice of Motion Applications dated 30th August 2021 and 13th September 2021, the Supporting Affidavits thereto sworn by the 1st Applicant, Yobesh Onwong’a Oyaro, the Replying Affidavit sworn by Simon Odala Wabwire on 15th September 2021 and the Supplementary Affidavit sworn by the 1st Applicant on 12th October 2021 and coupled with the submissions filed by the parties herein as well as all enabling provisions of the law, the following issues arise for determination: -

a) Whether the Applicant has proved that he is entitled to be granted anticipatory bail

b) Whether conservatory orders should be issued restraining the Respondents from interfering with the Applicant’s properties including but not limited to motor vehicles, homes, commercial and personal properties.

c) Whether an order should issue for release of the 3rd Applicant’s mobile phone(s).

d) Whether the Public Service Commission should be added to the proceedings as an interested party and whether the Public Service Commission should be restrained from supplying the 2nd Respondent with the 1st Applicant’s records.

e) Whether the 2nd Respondent should be barred from using any materials collected from the Public Service Commission in respect to the letter dated 11th August 2021.

Whether the Applicant has proved that he is entitled to be granted anticipatory bail

14. The grant of anticipatory bail should be an exercise of the court’s discretion where the Applicant has shown that there is imminent danger of arrest in breach of their right. The Applicant herein claimed that he was being harassed by officers attached to the 2nd Respondent who have failed to disclose the nature of investigations that they intend to conduct against him.

15. Section 24 of the National Police Service Act No. 11 A of 2011 provides: -

The functions of the Kenya Police Service shall be the: -

a) Provision of assistance to the public when in need;

b) maintenance of law and order;

c) preservation of peace;

d) investigation of crimes;

e) protection of life and property;

f) collection of criminal intelligence;

g) prevention and detection of crime;

h) apprehension of offenders;

i) enforcement of all laws and regulations with which it is charged; and

j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.

16. The above functions include investigation of crimes and apprehension of offenders among other duties. The exercise of those duties must guard against violation of rights and fundamental freedom in the Bill of Rights under Chapter 4 of the Constitution of Kenya 2010. Although Simon Odala Wabwire who filed a Replying Affidavit sworn on 15th September 2021 did not oppose the application for anticipatory bail, the genesis of the investigations herein was the complaint by the 1st Applicant in OB No. 46/21/12/20 as stated in the Application dated 30th August 2021 in Miscellaneous Criminal Application No. E079 of 2021 where the 1st Applicant sought that DCI be compelled to complete investigations and arrest one alias Mlatia Lawrence a private investigator who had obtained personal information from his wife the 3rd Applicant and was using the same to harass and cause a rift in his family. This court established that investigations into the 1st Applicant’s complaint were ongoing and urged that the same should be expedited and upon conclusion the same should be forwarded to the DPP on whether to prosecute or not.

17. The same procedure that is being used by the 2nd Respondent to investigate the complaint filed by the 1st Applicant should be applicable in the investigations against the 1st Applicant. The 1st Applicant confirms that he had been summoned by the 2nd Respondent and when he presented himself, he was never arrested. There is nothing to show that he will be arrested if he presents himself for investigations against him to be completed. Unless and until the Applicants attend to the summons, their visit to the police station that started in December 2020 may not come to an end. The Applicants are therefore ordered to appear before the DCI Coast Region for the investigations against them to be conducted and concluded. In the event that investigations are not concluded within one day, the DCI is hereby ordered to release them on bond on such terms as are appropriate for their attendance until their investigations are concluded.

Whether conservatory orders should be issued restraining the Respondents from interfering with the Applicant’s properties including but not limited to motor vehicles, homes, commercial and personal properties.

18. The particulars of the properties that the Applicant seeks to be preserved have not been provided to the court and the court cannot give an order in vain.

Whether an order should issue for release of the 3rd Applicant’s mobile phone(s).

19. The 3rd Applicant’s phone was said to have been taken by the Investigating Officer in OB No. 46/12/20/2020 for forensic analysis because it was used to send messages to the 1st Applicant. The 3rd Applicant was supposed to go back to the station to record a statement but she did not return as promised. That complaint by the 1st Applicant is still pending and it can only be disposed of if the 1st Applicant withdraws the complaint or the 3rd Applicant goes to the station to record a statement in respect of how her mobile phone was used to send messages to the 1st Applicant.

Whether the Public Service Commission should be added to the proceedings as an interested party and whether the Public Service Commission should be restrained from supplying the 2nd Respondent with the 1st Applicant’s records

20. At paragraph 9 of the 1st Applicant’s Affidavit sworn on 13th September 2021, it is averred that the Public Service Commission had already supplied the documents that were required by the 2nd Respondent in the letter dated 2nd August 2021 and as such, the application to add them as interested parties or restrain them from issuing the records for the 1st Applicant has been overtaken by events.

Whether the 2nd Respondent should be barred from using any materials collected from the Public Service Commission in respect to the letter dated 11th August 2021.

21. The wealth declaration documents were obtained by the 2nd Respondent from the Public Service Commission pursuant to Section 30 of the Public Officer Ethics Act and they are expected to adhere to the provisions thereto including Section 30 (3) (a) and (b) which regulates publishing of information in the Wealth Declaration forms or documents.

22. As pointed out earlier, the mandate of the police service is provided for under Section 24 of the Act and the extent of inquiries in the course of investigations cannot be micromanaged by the court. The Applicant is represented by an advocate and should appear with the advocate for investigations and where it appears the investigations are incriminating him, he should be advised whether to respond or not to respond to them.

23. In conclusion, the Applicants are hereby ordered to attend to the DCI Coast Region for investigations into the issues for which summons have been issued to them since 2020 within 7 days of the date of this ruling. There shall be no orders as to costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,

THIS 21ST DAY OF MARCH 2022

HON. LADY JUSTICE A. ONG’INJO

JUDGE

In the presence of: -

OGWEL- COURT ASSISTANT

MR. NGIRI FOR 1ST RESPONDENT

MR. MAKUTO FOR 2ND, 3RD AND 4TH RESPONDENTS

MR. MOGAKA FOR APPLICANTS - PRESENT

HON. LADY JUSTICE A. ONG’INJO

JUDGE