Ahmed Mohamed Atta Soliman v Director of Public Prosecution

in issue is not in the realm of criminal law and therefore the police are abusing the criminal process to redress a civil dispute, hence this application. 3. The Respondents opposes the application through an affidavit in reply sworn by a Prosecution Counsel based in Nakuru named Nancy Sang. Counsel observes that anticipatory bail is not expressly provided for in the Constitution or Statute Law but the relief may be granted in the discretion of the court based on particular circumstances of every case. The court is told that since the order sought has an effect of impeding criminal investigations which is the exclusive mandate of the police, cogent and sound reasons for grant of the orders sought must be given. It is further averred inter alia that there are no exceptional reasons for allowing the application, and I am urged to dismiss the same. 4. Learned Counsel for the parties filed Written Submissions, which I have perused against the application and the rival affidavit evidence. Counsel for the Applicant submit citing the judicial determination in Wekesa v Attorney General & Another (2017) eKLR that the remedy of anticipatory bail is available to an individual who demonstrates reasonable apprehension of arrest or violation of a constitutional right. Further reference is made to case law in Republic v the Chief Magistrate’s Court (Mombasa) KLR 703 in which it was held that criminal proceedings should not be used to champion a civil cause or for any other ulterior motive. 5. This legal position is underscored in the case of Reuben Mwangi V. DPP & 2 Others (2012) eKLR inter alia also relied upon by the Applicant. Counsel correctly submits that the criminal process should never be used to settle personal scores. 6. The Respondents in their reply submissions reiterate that anticipatory bail is not expressly provided for under the Constitution or statute and therefore it is granted at the discretion of the court according to the circumstances of every case. Counsel for the Respondents submit that since the orders sought have an effect of impeding criminal investigations, any such orders should be based on “cogent and constitutionally sound reasons such as a serious breach of the Applicant’s rights by an organ of the state which is supposed to protect the same.” (See case law in W’Njuguna v Republic [2004] eKLR and Mandiki Luyeye v Republic [2015] eKLR quoted in the Respondent’s submissions). 7. Counsel further refer the court to this court’s judicial determination in Paul Ole Kuyana & Another v Director of Public Prosecutions & 2 Others [2021] eKLR in which it was observed that an application for anticipatory bail may be considered and granted only where there is proof of or threatened breach of a constitutional right, for instance the right against arbitrary arrest.. 8. Under Article 23 of the Constitution the court is empowered to grant appropriate reliefs for violation of the Bill of Rights including a threat of violation of a right under the Bill of Rights. Article 29 guarantees every person the right to freedom and security including the right not to be deprived of freedom arbitrarily. This court has jurisdiction to redress such violation if proven. According to the Respondent the Applicant has not met the threshold by proving infringement of a right to warrant grant of anticipatory bail as set out in the cited decisions. 9. The Applicant in the instant matter craves the remedy for the reason that the Respondent allegedly is abusing the criminal process to remedy a civil wrong. Whether what is under investigations by the police is a civil wrong or a criminal act or omission is for the court that may eventually hear the case to determine. There are no sound reasons advanced to warrant prohibiting the Applicant’s arrest and prosecution by granting of anticipatory bail. The court is also alive to the fact that there are legal mechanisms to ensure fair trial in the course of hearing of a criminal case. The Applicant would not therefore be prejudiced if the reliefs sought are not granted. As is the law, anticipatory bail cannot be granted based on fear or speculation but serious breach or threatened of guaranteed rights which is not https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13820/eng@2025-10-02 2

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demonstrated. The actual complaint against the Applicant or his company is not even explained by either of the parties, and therefore the Applicant’s fears appear to be only speculative. 10. The Application is accordingly dismissed. J. M. NANG’EA, JUDGE. RULING DELIVERED THIS 2ND DAY OF OCTOBER, 2025 IN THE PRESENCE OF: Advocate for Applicant, (Absent) The Applicant, (Absent) Advocate for Respondent, Mr Wakasyaka The Court Assistant (Mr Ng’eno) J. M. NANG’EA, JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13820/eng@2025-10-02 3

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