REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

MISC. CRIMINAL APPLICATION NO. 6 OF 2022

JAMES BICHAGE KENYARIRI............................................APPLICANT

VERSUS

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

THE DIRECTOR OF CRIMINAL INVESTIGATION                               

DEPARTMENT...........................................................2^ND RESPONDENT

THE INSPECTOR GENERAL OF POLICE...........3^RD RESPONDENT

RULING

1. James Bichage Kenyariri ( ‘ the Applicant’) seeks to be issued with a conservatory order restraining the respondents, their agents, junior officers and/ or anybody from arresting or otherwise however interfering with the applicant herein pending the hearing and determination of the application. The applicant also seeks that he be granted anticipatory bail pending arrest or charge on such terms as the court may deem fit to impose.

2. In his affidavit in support of the application the applicant depones that on the 13.2.2022 and 14.2.2022 police officers from an unknown police station went to his residence at Jogoo to arrest him. He was informed by his house manager that said officers searched the whole house claiming that he was hiding himself in the house. Thereafter he went to Kisii Police Station and Nyanchwa Police Station to confirm whether there is any warrant or complaint made against him. He learnt that there was no warrant of arrest nor complaint made against him. That the 2 said police stations have territorial jurisdiction of where he resides and carries business. That he has not committed any offence in Kenya nor has he been involved himself in any criminal activity whether by himself or jointly with any other person. That he is aware that the said 2 police stations have not received any warrant to be effected by police officers outside of their jurisdiction. That given that police officers from an unknown police station are looking for him there is need for the court’s protection to safe guard his constitutional right. That the actions of the respondent are illegal and manifest injustice, impunity, irregular and oppressive. That the respondents will not suffer any prejudice if the orders sought are granted. That it is in the interest of justice that the court grants anticipatory bail.

3. The applicant reiterated the contents of his affidavit at the hearing of his application. The application was opposed. Mr Kaino for the Respondent submitted that the applicant has failed to establish the fear of breach of his rights which must be real and must be supported by facts. That the order cannot be granted to prohibit investigations and pre-empt investigations on an applicant who feels he is being inconvenienced by the investigations. That the applicant has not adduced any facts to support his application. That the court should guard the constitutional mandate of the police and DPP. He sought to have the application dismissed. Reliance was made on the case of Paul Ole Kuyana vs. DPP & 2 Others eKLR.

4. The applicant seeks anticipatory bail. He claims that police officers from an unknown police station went to his home and did a search. In considering such application the court has the discretion to grant or not to grant the order being sought. An applicant has to satisfy the court that there is a serious breach of his rights by a state organ. The applicant does not disclose the station the officers were from or how they identified themselves to his house manager. To merely claim that unknown officers visited his home is not enough. In the case of Mandiki Luyeye vs. Republic [2015] eKLR Justice Ngenye held that anticipatory bail cannot be issued where an Applicant labours under the apprehension founded on unsubstantiated claims. The fear of breach as alleged must be real and demonstrable. An Applicant must demonstrate the breach by acts and facts constituting the alleged breach. 

5. The Applicant’s claims are unsubstantiated. He has failed to demonstrate the breach of acts and facts constituting the alleged breach. He deposes that police station close to his home has no warrants against him nor has he committed any offence. Whatever fear he has, if any, does not warrant the orders sought. I find no merit in the application and it is dismissed with no orders as to costs.  

DATED, SIGNED AND DELIVERED AT KISII THIS 24^TH DAY OF MARCH 2022.

R.E.OUGO

JUDGE

In the presence of:

 James Bichage Kenyariri       Absent

Mr. Kaino                     State Counsel ODDP

Aphline                        Court Assistant