Madzayo & 11 others v Director of Public Prosecutions & another [2023] KEHC 23388 (KLR)

Madzayo & 11 others v Director of Public Prosecutions & another (Miscellaneous Criminal Application E097 of 2023) [2023] KEHC 23388 (KLR) (28 September 2023) (Ruling)

Neutral citation: [2023] KEHC 23388 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application E097 of 2023

A. Ong’injo, J

September 28, 2023

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 AND SECURITY OF PERSONS

Between

Stewart Madzayo

1st Applicant

Amina Mnyanzi

2nd Applicant

Paul Katana

3rd Applicant

Betty Kache Mwavuo

4th Applicant

Oscar Iha Wanje

5th Applicant

Brown Safari

6th Applicant

Ibrahim Abdi

7th Applicant

Rashid Odhiambo

8th Applicant

Twahir Abdulkarim

9th Applicant

Ray Katana

10th Applicant

Haron Nduti Tete

11th Applicant

Moses Furaha Keah

12th Applicant

and

Director Of Public Prosecutions

1st Respondent

Inspector General Of Police

2nd Respondent

Ruling

1. The applicants approached this court vide notice of motion application dated July 23, 2023 under certificate of urgency and the supporting affidavit thereto sworn by Mr Danstan Omari Advocate for the applicants seeking that this honourable court be pleased to the applicants herein anticipatory bail at such terms and conditions that this honourable court may deem just and fit in the circumstance to secure their attendance before the Directorate of Criminal Investigations for questioning or statement recording or for other incidental purposes.

2. The applicants also prayed that this honourable court be pleased to restrain the 2nd respondent, their servants, agents or any other officer of the National Police Service or any other law enforcement officer from arresting the applicants herein.

3. The said application was on grounds that the applicants were ardent members of the official opposition, the one Kenya Azimio Alliance and strong supporters of the Orange Democratic Movement party leader Raila Odinga. That persons and politicians linked with Raila Odinga and the Orange Democratic Party were arbitrarily arrested and faced trumped up charges in regard to the nationwide demonstrations by Kenyans in opposition.

4. That unless this court admits the applicants to anticipatory bail, their rights to a fair hearing, right to peacefully demonstrate, to freedom of movement and to associate freely with others exercising their political rights will be violated.

5. This court cannot curtail the mandate of the 2nd respondent, their servants, agents or any officer of the National Police Service or any other law enforcement officer from executing their mandate as provided for under section 24 of the National Police Service ActNo 11 A of 2011 where it is suspected an offence is being or is about to be committed..

6. The apprehension that the applicants are likely to be arrested has now been diminished by the bilateral talks between the governing party and the opposition and as such application is overtaken by events.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS THIS 28TH DAY OF SEPTEMBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for RespondentMr. Mabeya Advocate H/B for Mr. Omari Advocate for the ApplicantsNo appearance for ApplicantHON. LADY JUSTICE A. ONG’INJOJUDGE