Duke Simeon Onyari & 5 others v Ethics and Anti-corruption Commission & 1 other

MCCGCR E001 of 2026 and that warrants of arrest had been issued following a plea date of 19th March 2026 at which they were not present. They further contend that one of the accused persons, namely Enock Omwenga Nyakundi, the 5th Accused in the charge sheet, died in 2019, and that one of the Applicants, namely Simon Ogecha, the 6th Applicant, is bedridden due to chronic illness, and maintain that the intended arrest is prejudicial and the prosecution malicious. 3. The application is opposed by the Replying Affidavit sworn on 01st April 2026 by Robert Rono, an investigator with the Ethics and Anti-Corruption Commission. 4. The Respondents’ position, as set out in the said affidavit, is that the 2nd Respondent conducted investigations into procurement irregularities involving public funds and, upon completion, forwarded the file to the Director of Public Prosecutions, (2nd Respondent) who, on 12th March 2026, approved the decision to charge, whereupon a charge sheet was filed before the Keroka Chief Magistrate’s Court. It is further deponed that one accused person was arrested on 18th March 2026 and released on cash bail, and that warrants of arrest were issued against the Applicants after they failed to avail themselves. The Respondents maintain that the investigative and prosecutorial steps taken are lawful. 5. The Applicants filed written submissions dated 31st March 2026 in which they contend that anticipatory bail is available where there is a real threat of violation of constitutional rights. 6. The issue for determination is whether the Applicants have met the threshold for grant of anticipatory bail. 7. Article 49(1)(h) of the Constitution guarantees the right to bail, but the principles governing anticipatory bail are settled. In Gladys Boss Shollei v Attorney General & 3 others [2015] eKLR, the Court held that anticipatory bail is not available on mere apprehension. In Samuel Muciri W’Njuguna v Republic (2004) 1 KLR 520; [2004] eKLR, the Court held that the remedy lies only where there is a serious breach of a citizen’s rights by a state organ and does not shield an applicant from lawful processes. In Eric Mailu v Republic & 2 others [2013] eKLR, the Court reiterated that anticipatory bail is not a substitute for the ordinary criminal process. The same position was affirmed in Oloosso & another v Inspector General of Police & another [2023] KEHC 25855 (KLR) and George Joshua Okungu & another v Chief Magistrates Court, Nairobi & another [2014] eKLR, where the Courts emphasized that intervention is warranted only upon proof of illegality, bad faith or abuse of process. 8. Applying those principles, the material before Court shows that investigations were conducted, the file reviewed, charges approved on 12th March 2026 and a charge sheet filed before a competent court. Warrants of arrest were issued within the criminal process. No evidence has been placed before this Court to demonstrate illegality, bad faith or abuse of process. The apprehension expressed by the Applicants, without more, does not meet the threshold for anticipatory bail. The inclusion of a deceased person in the charge sheet, while a matter of concern, is one that properly falls for consideration before the trial court and does not, of itself, warrant intervention by this Court. Equally, the fact that the 6th Applicant, Simon Ogecha, is said to be bedridden due to chronic illness does not, without more, disclose a violation or threatened violation of constitutional rights; it is a matter to be addressed in the course of arrest, arraignment and consideration of bail by the trial court. 9. In the result, I find that Notice of Motion dated 24th March 2026 is devoid of merit and this Court orders as follows: 1. The Notice of Motion dated 24th March 2026 is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6725/eng@2026-04-08 2

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2. The interim anticipatory bail granted on 24th March 2026 shall stand vacated on 12th April 2026. 3. The Applicants shall attend before the trial court in Keroka MCCGCR No. E001 of 2026 on 13th April 2026, failing which the warrants of arrest issued against them shall forthwith take effect. 4. This file is hereby marked closed DELIVERED AT NYAMIRA THIS 08TH DAY OF APRIL 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda 1st Applicant -Absent 2nd Applicant - Absent 3rd Applicant - Absent 4th Applicant - Absent 5th Applicant - Absent 6th Applicant - Absent For the DPP - Mr. Chirchir For EACC - Ms. Yator https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6725/eng@2026-04-08 3

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