Kevin Otieno Onyango v Director of Criminal Investigations & 2 others

6. The petitioner informed the court that he had been arrested previously on the 7th August 2025 and released on police cash bail of Ksh. 100,000 and no charges were preferred against him in connection with that arrest. 7. Further, the petitioner informed this court he was arrested on the 29th April 2026 at the JKIA and locked up until the 4th May 2026, when he was released on a police cash bail of Ksh 200, 000. 8. The petitioner contended that even this time round there were no charges preferred against him thus he remains apprehensive that the agents of the 1st and 2nd respondent may pounce on him anytime and incarcerate him in similar fashion which would deny him his right to liberty. 9. Mr Mwandawiro for the state admitted that the petitioner had indeed been arrested twice and on both occasion he was not charged since a decision to charge had not yet been made. 10. Counsel for the Prosecution however, stunned this court through his vehement opposition to the grant of a conservatory order arguing that there was no basis for the court to issue such an order. 11. The prosecution counsel argued that the arrest of the petitioner on both occasions was lawful and he did not see the reason why the court should intervene yet according to him, the 3rd respondent under Article 157 (11) of the Constitution could prevent any abuse of process thereby in his view rendering the intervention by this court unnecessary at this stage. 12. The court agrees with Mr Mwandawiro’s submission that the 3rd respondent has a constitutional responsibility to avert abuse of process and protect the interests of the administration of justice. 13. However, quite obviously Mr Mwandawiro missed the point that on both occasions the petitioner had been placed in custody without the involvement of the 3rd respondent therefore there is no guarantee that the 1st and 2nd respondents would not do so without involving the 3rd respondent. 14. This court has a duty to uphold the rights of every individual whenever that person approaches the court and establishes the breach or threat of breach of their fundamental rights under Article 23 of the Constitution. The court cannot therefore turn away a party who approaches it and seeks the protection of the court against agents of the state. 15. The petitioner has demonstrated two instances when he has been arrested and released by the 1st and 2nd respondents without charge. 16. The second incident according to counsel for the respondents happened on the eve of labour day and in the prosecution counsel’s view there was nothing wrong with it. 17. The fact that the police chose to arrest the petitioner ahead of the long weekend and kept him in custody the entire period until Monday 4th May 2026, is a clear indication of total disrespect for the petitioners right to human dignity and liberty under Articles 28 and 39 of the Constitution. 18. The police knew too well they had not received any directions to arrest and charge from the 3rd Respondent thus the holding of the Petitioner in custody from 30th April to 4th May was unnecessary and amounted cruel and inhumane treatment considering that they could have as well released him on a police bond on the 1st of May 2026. 19. The failure to exercise the discretion vested in oficers of the 1st and 2nd Respondent to release the petitioner on bond under Section 123 of the Criminal Procedure Code until Monday 4th May 2026 smacks of malice, ill-will and arbitrary exercise of police powers of arrest and detention which this court cannot countenance. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11643/eng@2026-05-05 2

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20. We have made great strides as a country in the realm of Human Rights and fundamental freedoms. All Kenyans irrespective of the ofices they hold must strive to abide by the law and give effect to the rule of law and due process. 21. It is the only favor we can grant unto ourselves because the survival of the soul of the Nation and the observance of the rule of law is wholly dependent on the individual and collective actions of those that wield power. 22. This court is satisfied that the Petitioner has made a good case for a conservatory order to issue. It is inhumane to arrest a person and detain them for a whole 3 days only to release them on a Monday morning on a police bond without charge. The action of the police was unjustifiable and arbitrary to say the least. It must be discouraged. 23. The Petitioner is hereby granted a Conservatory order barring his arrest forthwith in connection with the matters complained off until this petition is heard and determined. 24. This order is calculated to ensure that the process of investigation continues in a manner that accords with the respect for human rights of the petitioner. 25. For avoidance of doubt, once investigations are complete the file should be processed in the normal way and the 3rd respondent shall be at liberty make the decision on whether or not to charge and counsel for the respondents may at that stage move this court for appropriate orders. 26. Let us all respect Human Rights and Fundamental freedoms of the people we serve. 27. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 5TH DAY OF MAY 2026. A. M. MUTETI JUDGE In the presence of: ____ Court Assistant: Habiba Ashioya for the Petitioner Mwandawiro for the Respondents https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11643/eng@2026-05-05 3

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