1.The applicants filed notice of motion dated February 16, 2023 on the grounds appearing on its face and in the supporting affidavit of even date. The application was filed under certificate of urgency, seeking orders that:a.Spent;b.Spent;c.The honourable court be pleased to grant the applicants anticipatory bail/bond at such reasonable terms and conditions that this honourable court may deem just and fit in the circumstances;d.The honourable court be pleased to issue conservatory orders restraining the respondents, their servants, agents, junior officers and/or any other person from effecting or arbitrarily arresting, charging or harassing or otherwise however interfering with the applicants without conducting investigations and according them an opportunity to be heard to wit issuing them with summons to appear at any offices to record statements(s) and aid in investigations if need be.
2.The applicants’ case is that they are the chiefs of Nguthi and Kanyuambora locations respectively, which areas are in the same neighborhoods thus they work together often in combating illegal activities including selling of illicit brew and drugs. That their reports on these illegalities were always made to Kanyuambora Police Station with copies made to Director of Criminal Investigations, Siakago and Assistant County Commissioner Kanyuambora Division. That one of the suspected perpetrators of selling illicit brew has been observed interacting socially with the Officers Commanding Kanyuambora and Ishiara Police Posts. That the said suspect has on several occasions called the applicants telling them that they should know people. That the applicants have been intimidated by ACC, DCIO and OCS, Ishiara, who have threatened to deal with them and to show them how to operate within their mandate. That the applicants are aware that the illicit brew suspect working with the OCPP and OCS booked a report against the applicants which action has caused the applicants to be apprehensive that the OCPP and OCS intend to use the report to, inter alia, arrest the applicants with the intent of teaching them a lesson, thereby abusing their power.
3.The application was contested by the 1st respondent who filed grounds of opposition arguing that the application does not meet the threshold for grant of anticipatory bail and conservatory orders.
4.The court certified the matter as urgent and issued temporary orders. The parties were directed to file and exchange their written submissions. Only the 1st respondent complied.
5.The 1st respondent in its submissions stated that the issue for determination is whether or not the applicants have met the threshold for grant of the relief of anticipatory bail and conservatory orders. In making its case on this, reliance was placed on the case of Paul Ole Kuyana & another v Director of Public Prosecution & 2 others  eKLR where the court discussed circumstances under which this relief may be granted. They also relied on the case of Republic v Chief Magistrate Milimani & another exparte Tusker mattresses Ltd & 3 others (2013) eKLR where the court warned against granting this relief where to do so would curtail the powers of the police to carry out investigations. It was their case that the applicants had never been called to a police station on any allegations levelled against them, thus their apprehension is unfounded.
6.Further, the 1st respondent reiterated the provisions of article 29 of the Constitution of Kenya 2010 and insisted that the applicants ought to demonstrate to the court that their rights and freedoms are at the risk of being violated if the relief is not granted. In addition, they relied on the case of Mandiki Luyeye v Republic  eKLR to reaffirm their position on the unsubstantiated nature of the applicants’ apprehension.
7.In my view, for this court to determine whether or not the relief sought can be granted by this court, it is important to understand the circumstances under which the relief can be granted. To begin with, it is noteworthy that besides the Constitution, there is no express legislation governing application of anticipatory bail. Article 29 of the Constitution of Kenya 2010 provides as follows:
9.From the above citations, it is clear to me that the court ought to address the following issue:a.Whether or not the applicants’ apprehension is substantiated and is likely to end up with infringement of their fundamental rights if the relief is not granted.
10.The applicants stated that they have been threatened by the named state organs who are apparently working in cohorts with a suspect. In their supporting affidavit, they allege that the said suspect has in fact filed a report against them for alleged assault and has proceeded to procure a P3 form in support of his claim. The applicants also alleged that the officers from Ishiara Police Station are plotting to arbitrarily arrest them following this report on assault. The applicants have also expressed that they fear because the state organs in question have on several occasions verbalized their threats and intimidation saying something to the effect that the applicants should be shown how far they can go with their work.
11.I note that the threat of arbitrary arrest emanates from the applicants’ line of work but could potentially deny them their fundamental rights under article 29 of the Constitution. However, it must be demonstrated that the impending violation is very likely to occur, or has been attempted before, or that the applicants have substantial proof that the respondents are indeed intending to act in violation of the fundamental rights. In the case of Henry Kaskon Mwachi & 2 others v Republic & another  eKLR it was held:In the same case, the court ended up denying this relief to parties who were merely fearing arrest and nothing else. The court in its determination went on to say:
12.The said apprehension is against state organs that are tasked with protecting the applicants’ fundamental right. I am guided by the case of W’Njuguna v Republic (2004) eKLR where the court stated that such orders are granted only: -
14.While noting the seriousness of the allegations in this application, I am not convinced that the applicants have demonstrated to this court that they are not merely afraid of being arrested and charged. In fact, I am of the view that even if the applicants are eventually arrested, the opportunity to apply for bail will still be available to them to explore.
15.In the upshot, I find that the application lacks merit and is hereby dismissed.
16.It is so ordered.