James Maina Wanjohi v Director of Public Prosecutions [2015] KEHC 7703 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CRIMINAL APPLICATION NO.320 OF 2015

JAMES MAINA WANJOHI………………………………………..APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTIONS ………………..RESPONDENT

RULING

The Applicant, James Maina Wanjohi has filed an application seeking to be granted anticipatory bail.  He is apprehensive that he may be arrested any time by the police.  From the affidavit filed in support of the application, it is apparent that there exists a dispute between the Applicant and one Stephen Mwangi Ng’ang’a in regard to the performance of a certain subcontract. That dispute has escalated. One of the parties to the subcontract has made a report to the police.  From the pleadings, it is not clear whether the police are investigating the commission of a crime. What is without doubt is that the police have summoned the Applicant to present himself before the Ruiru Police Station. It appears that there has been an antecedent to the police’s request for the Applicant to present himself to the said police station. The Applicant is apprehensive that if he appears before the said police station, he will be incarcerated pending his production in court.  It is in that regard that the Applicant wishes to forestall his arrest once he presents himself to the said police station.

The State is opposed to the application. Ms. Ngetich for the State submitted that the police have the legal and constitutional right to conduct any investigation where a complaint has been lodged in regard to the commission of a crime. By summoning the Applicant to present himself before the said police station, the police were not breaching the Applicant’s constitutional right. In any event, it was argued that there was no basis for the Applicant’s apprehension since the police have made no move to arrest him.

This court has carefully considered the arguments made in this application. There is no doubt that a complaint has been lodged with the police against the Applicant. At this stage of the case, this court cannot delve into the merit or otherwise of the basis of the police’s summons to the Applicant to appear before it. Suffice for this court to say that the police have a right to summon anyone in the course of investigation, prevention and detection of crime as provided under Section 24 of the National Police Service Act. However, the Applicant may be justified in his apprehension that he may likely to be detained when he reports to the police. In the premises therefore, this court will issue the following orders with a view to safeguarding the Applicant’s right to liberty but also enabling the police to conduct their investigations without interference from any quarters:

The Applicant is ordered to present himself before the OCS Ruiru Police Station within 48 hours of today’s date with a view to assisting the police with investigations.

During his appearance, the Applicant shall not be arrested or detained as he has been granted anticipatory bail by this court on a personal bond of Kshs.100,000/-.

Upon conclusion of the investigations, should the police decide to charge the Applicant, he shall be required to attend court for the purposes of taking plea.

The court that shall take the plea shall be at liberty to issue appropriate bond/bail terms.

Mention on 26th October 2015 for further orders.

It is so ordered.

DATED AT NAIROBI THIS 1ST DAY OF OCTOBER 2015

L. KIMARU

JUDGE