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High CourtAllowed

Applicant v Inspector-General of Police & Another (Anticipatory Bail)

High Court of Kenya
22 January 2025
600 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed you can get bail before being arrested, protecting your liberty while police continue investigating.

What this practically means

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Executive summary

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The applicant moved the High Court by notice of motion dated 13th December 2024 seeking anticipatory bail. He deposed that a civil dispute with a complainant over a botched sale of aircraft parts led the complainant to report him at Wilson Airport Police Station; since then, police had harassed and intimidated him, warned him against travelling abroad, threatened to take his identification documents, yet no charges had been preferred. He feared arbitrary arrest and infringement of his rights. The court held that although anticipatory bail is not specifically provided for by statute, there is no lacuna in the Constitution: Article 49(1) guarantees release on bond or bail pending a charge or trial, and Article 22(1) allows any person to seek redress for threatened rights. The court stated its duty was to protect constitutional rights rather than interrogate the genuineness of the apprehension, and that before granting such an order it must be satisfied the threat is real. At the ex parte stage it was satisfied that the applicant's right to liberty under Article 29 would otherwise be compromised. By ruling dated and delivered virtually on 22nd January 2025, D. Kavedza J admitted the applicant to anticipatory bail of Kshs. 50,000, barred arrest or detention while permitting investigation and charging, directed that he be escorted for interrogation within seven days, and provided that if charged he be informed of the court for plea taking, with the orders lapsing once the trial court sets bail terms.

Key legal issues

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01

Availability of anticipatory bail under the Constitution

Holding

Anticipatory bail is grantable even though not statutorily provided, grounded in Articles 22(1), 29 and 49(1)

Reasoning

The court held that Article 49(1) guarantees release on bond or bail pending a charge or trial, and Article 22(1) permits any person to move the court where a right is threatened. Since the Constitution contains no lacuna, the absence of statutory provision does not bar anticipatory bail. The court's duty is to protect constitutional rights, not to interrogate the genuineness of the applicant's apprehension.

p. 2
02

Threshold for granting anticipatory bail ex parte

Holding

The court must be satisfied the threat is real; at the ex parte stage satisfaction that liberty under Article 29 would otherwise be compromised suffices

Reasoning

The judge stated the court must be convinced the threat is real and not mere apprehension, but at the ex parte stage needed only to be satisfied that the applicant's right to liberty under Article 29 would be compromised absent the orders. On the affidavit material, that satisfaction was reached and bail of Kshs. 50,000 was granted with conditions protecting the investigation.

p. 2

Legal principles established

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  • Anticipatory bail is available notwithstanding that it is not specifically provided for by statute, because the Constitution has no lacuna
  • Before granting anticipatory bail the court must be satisfied the threat of arrest is real and not mere apprehension

Court orders

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  1. 1.Applicant admitted to anticipatory bail of Kshs. 50,000 to be deposited in court
  2. 2.Respondents at liberty to investigate or charge but not to arrest or detain the applicant pending further orders
  3. 3.Applicant's advocates to escort him to the 2nd respondent's offices for questioning within seven days, not later than 31st January 2025
  4. 4.If a decision to charge is made, respondents shall not arrest or detain him but shall inform him of the court where he is to appear for plea taking
  5. 5.Order (iv) to remain in force until plea is taken and the trial court sets new bail/bond terms, whereupon these orders lapse
Jurisdiction invoked
Articles 22(1), 29 and 49(1) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Applicant v Inspector-General of Police & Another (Anticipatory Bail)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.