Applicant v Inspector-General of Police & Another (Anticipatory Bail)
The bottom line
#Kenya's High Court confirmed you can get bail before being arrested, protecting your liberty while police continue investigating.
What this practically means
#Executive summary
#Key legal issues
#Availability of anticipatory bail under the Constitution
Anticipatory bail is grantable even though not statutorily provided, grounded in Articles 22(1), 29 and 49(1)
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.
Threshold for granting anticipatory bail ex parte
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
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.
Legal principles established
#- 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
#- 1.Applicant admitted to anticipatory bail of Kshs. 50,000 to be deposited in court
- 2.Respondents at liberty to investigate or charge but not to arrest or detain the applicant pending further orders
- 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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.