Stephano Lasas--------------------------------------------------applicant v Directorate of Criminal & 4 others

1. THAT the Application be and is hereby certified as extremely urgent, heard forthwith ex parte in the first instance and service be dispensed with. 2. THAT pending the inter-partes hearing and determination of this Application, the Applicant be admitted to anticipatory bail or bond at such reasonable terms and conditions that this Honourable Court may deem just and fit in the circumstances. 3. THAT ex-parte and pending the hearing and determination of this application, the Honorable Court be pleased to issue a conservatory order restraining the Respondents, their Servants, Agents, junior officers and/ or anybody from effecting and/or anybody from arresting, charging, harassing or otherwise however interfering with the Applicant. 4. THAT this Honorable Court be pleased to direct the Respondents to supply and avail to the Applicant a copy of the Summons or communications which he is being pursued for or threatened with arrest to explain and/or expound on. 5. THAT the Honourable Court do issue such further or other orders that in its discretion may deem fair and just in the circumstances. 6. THAT costs of the application be in the cause. 2. The application was based on the following grounds THAT; a) The Applicant, a DCI Officer currently stationed at Kyuso SubCounty and previously stationed at Changamwe was likely to suffer great prejudice due to the impending arrest and arraignment which is likely to be accentuated by malice by the 1st Respondent's OC Operations Support Unit-DCI HQ if this matter was not heard expeditiously. Nairobi High Court Misc. Appl No. E 236 of 2025 – Stephano Lasas –vs DCI & 2 Others 2

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b) The impending arrest relates to an alleged incident that occurred the night of on or about 17th February, 2025/18th February, 2025 around Changamwe and/or Port of Mombasa. c) On the night of the incident the Applicant was in Migori County on an inquiry pursuant to the orders issued by his Superior, then boss, SSP Robert Kinge (now CCIO, Kilifi) issued on 15th February, 2025 and returned on 19th February, 2025 as per OB Extracts at Changamwe Police Station. d) Sometime in March, 2025 the Applicant was summoned by Mr. Kariuki (OC, Operations Support Unit- DCI HQ) to record a statement as to his whereabouts on the night of the said incident. e) The Applicant, on 11th September, 2025 stumbled upon some Summons from John Muthui on behalf of DCI Operations Support Unit that were circulating on WhatsApp directing him, and other officers to appear before the RCIO Coast Region for further directions. f) To date, the said Summons have never been served personally upon the Applicant by the Respondents and/or through the RCIO Eastern Region, CCIO Kitui and/or SCCIO Kyuso. g) Upon enquiring as to the nature of the Summons the applicant learnt that the Respondents intend to arrest him and charge him with a charge emanating from the incident which the Applicant contends that he knows nothing about it. h) The Applicant has since written to the 3rd Respondent to review the inquiry file but no response has been received and the Applicant is, therefore, apprehensive that the 1st and 2nd Respondents will effect an arrest against him at any given time. Nairobi High Court Misc. Appl No. E 236 of 2025 – Stephano Lasas –vs DCI & 2 Others 3

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i) As a result of the Respondents' unlawful actions, the Applicant is under imminent threat of arrest by the Respondents and is justifiably apprehensive that his constitutional rights are being violated. j) The Applicant is apprehensive that the Respondents herein are acting in an opaque and secretive manner and yet they are likely to make and/or made a decision that may/will adversely affect the Applicant at any time. k) The powers of arrest by the 1st and 2nd Respondents and the Kenya Police are being abused and misused to harass, intimidate and oppress the Applicant aimed at interdicting the Applicant from the Service which will be truer words/ threats by the said Mr. Kariuki (OC, Operations Support Unit- DCI HQ) issued to the Applicant. 1) As a law-abiding citizen, the Applicant is ready and willing to submit himself to a just and fair legal system/process in which his fundamental rights and freedoms are respected and protected. m) The Applicant is entitled to the secure protection of the law as guaranteed under Articles 25, 27, 28, 29, 47, 49, 50 and 51 of the Constitution and the Honourable Court is obliged to act to enforce due process of the law and constitutionality. n) It is therefore imperative and most urgent that this Honourable Court hears and addresses the Application filed herewith forthwith to arrest the threatened and continued violation of the Applicant's fundamental right and freedoms o) The Respondents will not suffer any prejudice if the orders sought are granted. p) In the interest of justice the Application filed herewith be heard and the orders sought therein be granted. Nairobi High Court Misc. Appl No. E 236 of 2025 – Stephano Lasas –vs DCI & 2 Others 4

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3. The applicant swore an affidavit on 15th September 2025 in which he reiterated the grounds set out on the face of the application. 4. In answer to the application the Respondents through No. 83958 CPL. RONALD MURGOR, a police officer attached to the Directorate of Criminal Investigations (DCI), currently stationed at the DCI Operations Support Unit, swore and filed an affidavit in response stating : 1. THAT he had read and considered the Ex Parte Application and the Supporting Affidavit sworn by STEPHANO LASAS, the Applicant, dated 15th September 2025. 2. THAT he is one of the investigating officers handling the matter giving rise to the present application, and as such, competent and duly authorized to swear this affidavit. 3. THAT on 1st March 2025, a team of investigators was deployed to Mombasa County to commence investigations into the alleged irregular release and theft of three (3) 20-foot containers containing Sodium Lauryl Ether Sulphate chemical. 4. THAT investigations established that the theft occurred over a period between 18th February 2025 and 1st March 2025, contrary to the Applicant's claim in paragraph 4 of his supporting affidavit that the incident took place on a single day. 5. THAT as correctly noted in paragraph 5 of the Applicant's affidavit, the Applicant is indeed aware of the ongoing investigations, having recorded statements and been questioned regarding his possible involvement in the matter. 6. THAT upon conclusion of the investigations, the investigation file was forwarded. to the Office of the Director of Public Prosecutions (ODPP) in Mombasa for review, legal advice, and approval of Nairobi High Court Misc. Appl No. E 236 of 2025 – Stephano Lasas –vs DCI & 2 Others 5

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charges. (Copies of the forwarded file and related communication are annexed hereto and marked as RM-1 and RM-2). 7. THAT the allegations contained in paragraph 6 of the Applicant's affidavit are unrelated to the present investigations. As per the National Police Service Commission (Transfer and Deployment) Regulations, 2015, an officer is permitted to serve at a station for a minimum of one (1) year and a maximum of three (3) years. 8. THAT on 1st September 2025, the first group of the Applicant's coaccused persons was arraigned before the Chief Magistrate's Court at Mombasa for plea- taking in Criminal Case No. E1216 of 2025. (A copy of the charge sheet is annexed hereto and marked as RM-3). 9. THAT on the same date, 1st September 2025, two additional suspects were arrested and arraigned before the same court in Criminal Case No. E1220 of 2025. (Charge sheet annexed and marked as RM-4). 10. THAT on 2nd September 2025, two further suspects were charged, one of whom had been arrested in the Kariobangi area of Nairobi and transported to Mombasa. They were charged under Criminal Case Nos. E1221 and E1225 of 2025. (Copies of the respective charge sheets are annexed hereto and marked RM-5 and RM-6). 11. THAT no officer from the Directorate of Criminal Investigations, Operations Support Unit, had issued threats to the Applicant as alleged. The claims are false and intended to mislead the court, and such conduct warrants appropriate sanctions against the Applicant. 12. THAT the arrest of suspects falls squarely within the constitutional and statutory mandate of the National Police Service, an independent institution as stipulated under Articles 243, 244, and 245 of the Constitution of Kenya, 2010, and the National Police Service Act, 2011. Nairobi High Court Misc. Appl No. E 236 of 2025 – Stephano Lasas –vs DCI & 2 Others 6

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13. THAT the Applicant's fear of arrest appears to have arisen after becoming aware that several co-suspects had already been arrested and arraigned in court to face charges including conspiracy to commit a felony. 14. THAT the 1st Respondent is simply discharging his lawful duties as mandated by the Constitution and relevant laws. 15. THAT the Applicant is at liberty to voluntarily present himself before the Chief Magistrate's Court in Mombasa for plea-taking and to submit to due judicial process as may be directed by the court. 5. The parties canvassed the application orally and I have taken the submission of each one of their counsel into consideration in arriving at the decision in this matter. ANALYSIS AND DETERMINATION 6. The applicant in this matter sought to prohibit intended prosecution. He specifically sought an order restraining the respondents from arresting, charging, harassing or otherwise interfering with him. 7. He further sought to be furnished with the summons that the respondents claim to have issued against him. 8. The applicant bears the burden of establishing that the intended arrest and prosecution is sought to be undertaken without any proper factual or legal foundation or if the same is proceeded with his fundamental rights are likely to be violated. 9. The applicant must also be able to demonstrate the 3 rd Respondent has acted ultra vires or is proceeding on the basis of mala fides in violation of the Constitution. See Director of Public Prosecutions Vs Humphrey Kariuki Ndegwa $ 7 Others {2022}eKLR where the Court of Appeal emphasized that the DPP’s discretion must be exercised in accordance with the Constitution. Nairobi High Court Misc. Appl No. E 236 of 2025 – Stephano Lasas –vs DCI & 2 Others 7

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10. The applicant admits that he is aware that there were investigations being undertaken by the 1st and 2nd Respondent in which he was summoned to give a statement. 11. He does not allude any bad faith on the investigator in the case and all he claims is that he was threatened by some senior officer of the DCI. The applicant was on that basis apprehensive that he would be harassed and intimidated. As a result, he promptly sought the intervention by the court which he promptly received by way of the interim relief that this court granted him. 12. The applicant has not attributed any wrongdoing on the part of the 3 rd respondent thus he does not have any cause of complaint against the 3 rd Respondent other than that he is yet to respond to his request of review of the decision to prosecute. 13. The standard of proof in a matter like this is on balance of probabilities and it must be satisfied in compliance with the provisions of Section 107 and 108 of the Evidence Act before the court can halt any intended arrest and prosecution. 14. In order to succeed the applicant must be able to demonstrate that the 1 st and 2nd Respondents proceeded with investigations against him without a probable cause and that they acted out of malice or ill-will and or in excess of their Constitutional and statutory powers as provided for under Article 244(b) and 245 (4) (a) of the Constitution and Section 24 and 35 of the National Police Service Act. 15. The applicant is an officer serving in the Directorate of Criminal Investigations and is wanted for prosecution over incidents that are alleged to have occurred while he was serving under the DCIO Changamwe Mombasa. Nairobi High Court Misc. Appl No. E 236 of 2025 – Stephano Lasas –vs DCI & 2 Others 8

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16. The applicant in his supporting affidavit to the application has denied any involvement in criminal activities and at paragraph 14 of his affidavit he says he is willing to submit to a just and fair legal system/process in which his fundamental rights and freedoms are respected and protected. 17. The applicant is thus not averse to appearing before any court for a fair adjudication of the issues he is required to answer to. 18. When he approached this court for protection ex- parte, this court granted him anticipatory bail pending the hearing of the instant application. 19. The court in granting anticipatory bail does not in any way seek to impede investigations into a matter and should not in ordinary circumstances overreach itself to allow a party to circumvent the law. 20. The court once satisfied upon the examination of a matter that the applicant should appear for trial in the subordinate court to answer to charges, the order requiring him to do so should issue for him to surrender before the trial magistrate on a date to be indicated by the court. The trial magistrate would then be at liberty to set appropriate bail terms for the accused. 21. The grant of anticipatory bail is in the wider realm of orders that a court may issue in order to uphold and enforce the Bill of rights under Article 23 of the Constitution. 22. The court is enjoined to grant an anticipatory bail order where an applicant demonstrates a real threat of violation of his right to liberty. See Law Relating To Anticipatory Bails by Kant Mani pages 19-20. The anticipatory bail order should however be for a limited period to avoid abuse of the legal process. It must never be let to act as a shield against a lawful investigative process. The applicant demonstrated that there was danger of imminent arrest and by his own word he had received threats to that effect from his seniors thus he had good cause to move this court. Nairobi High Court Misc. Appl No. E 236 of 2025 – Stephano Lasas –vs DCI & 2 Others 9

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23. The applicants’ colleagues who were under investigation in relation to the incident have since been charged before the Mombasa court. 24. The charged sheets have been annexed by the respondents and the on the face of the charges the investigations appear to have unearthed several offence including conspiracy to commit a felony as well as neglect of official duty among others. 25. The offences are known in law and therefore the respondents in preferring those charges against the applicant’s colleagues must have satisfied themselves as to the sufficiency of evidence and the public interest test before preferring the charges. 26. This court is not minded to interfere with what prima facie appears to be a lawful process knowing too well that the Criminal Procedure Code has sufficient safeguards that one can invoke before the trial court if for some reason they find legitimate grounds to challenge their prosecution. The applicant’s position in relation to the matter under investigation is that he was not at the scene when the alleged offences were committed. That would pass for an alibi defence however as stated earlier in this ruling some of the counts that the respondents intend to have the applicant charged with would not necessarily require the physical presence of an accused person at the scene of crime. For instance, the offence of conspiracy would require a meeting of the minds of the accused persons which would not necessarily require that the accused persons be at the same place to actuate the offence. 27. The instant application has not brought out sufficient material or evidence of bad faith, irrationality or abuse of power by any of the respondents to justify halting the Intended arrest and prosecution. The applicant did not also establish that the investigations were conducted in a manner that amounted to a breach of his fundamental rights. Nairobi High Court Misc. Appl No. E 236 of 2025 – Stephano Lasas –vs DCI & 2 Others 10

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28. To that extent the application fails and this court orders that the applicant continues to enjoy the anticipatory bail ordered granted to him and that he shall appear before the learned Chief Magistrate Mombasa on 19th May 2026 for plea taking. 29. The Plea court shall thereafter determine the appropriate bail terms to grant and the court would be at liberty to hear any application that the applicant may wish to raise in connection with the charges at that point. In the intervening period and for the avoidance of doubt the applicant shall not be arrested or detained by the respondent. 30. It is so ordered DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 22ND day of APRIL 2026. A. M. MUTETI JUDGE In the presence of: Court Assistant: Habiba Murithi for the Applicant Mogere for the Respondent Nairobi High Court Misc. Appl No. E 236 of 2025 – Stephano Lasas –vs DCI & 2 Others 11

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