• The most important question is whether or not magistrates' courts in Kenya have jurisdiction to grant anticipatory bail.
• In attempting to be overzealous the magistrate failed to comply with the national values under Article 10 of the Constitution.
On the morning of 23rd May 2019, EACC detectives were reported to have raided the home of Kiambu Governor Ferdinand Waititu in relation to corruption related investigations.
Principal Magistrate Brian Khaemba sitting at Kiambu Law Courts granted the governor and his co-applicant anticipatory bail ex parte pending inter partes hearing on 30th May 2019.
The Order was issued despite the fact that the governor had already been arrested and taken to the EACC's Integrity Centre for questioning.
While several questions have arisen around the Order of the learned magistrate including the timing thereof, the most important question and which is the subject of discussion herein is whether or not magistrates' courts in Kenya have jurisdiction to grant bail in anticipation of arrests, otherwise called anticipatory bail.
I argue and support the argument that in fact subordinate courts have no such power to grant anticipatory bail and that the learned Khaemba, in attempting to be overzealous, failed to comply with the national values under Article 10 of the Constitution and ended up with a misapprehension of the Law and acted ultra vires his jurisdiction.
The right to bail generally
Bail is a Constitutional right. Magistrates in any of the subordinate courts have power to entertain applications for the grant or denial of bail to arrested persons under Article 49 (1)(h) of the Constitution. It is important to note that Article 49 is specific to arrested persons:
(1) (h) An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
Anticipatory bail is not contemplated under Article 49 of the Constitution
Although Anticipatory Bail is not statutorily defined in Kenya, and while it's not part of the right to Bail contemplated under Article 49 of the Constitution as established above, reference thereof is made by Paragraph 4.29 of the Judiciary Bail and Bond Guidelines thus:
"The High Court may grant anticipatory bail, that is, bail pending arrest, provided the applicant demonstrates that his or her right to liberty is likely to be compromised or breached unlawfully by an organ of the state that is supposed to protect this right. Further, the applicant must demonstrate that the apprehension of arrest is "real and not imagined or speculative."
Anticipatory Bail therefore refers to bail in anticipation of an impending arrest. It's therefore bail granted to a person - yet to be arrested - who must establish to the court, that he is faced with a real threat and or apprehension of arrest which would lead to a breach of his fundamental rights under the Bill of Rights including but not limited to liberty, such that he deserves protection within the law.
It is a mechanism through which the High Court, convinced that certain fundamental rights of a person (yet to be arrested) are threatened, uses to prevent the eminent arrest of such person.
Through anticipatory bail, the High Court upholds the person's rights including to liberty and the right to dignity which would be breached in case such arrest is not forestalled.
As anticipatory bail by its very nature preempts arrest, it cannot have basis under Article 49 of the Construction. In contradiction to the provision of Article 49(1) (h). Article 49 applies to arrested persons only!
A cursory glance of the face of the order by Khaemba which in which the parties the subject of the application leading to the order are the governor and one Faith Njeri Harrison as the 1st and 2nd Applicants respectively on one hand, and the Director of Public Prosecutions (DPP), the Director of Criminal Investigations (DCI), the Inspector General of Police (IG), EACC and Banking Fraud Unit (BFU) as the 1st to 5th Respondents respectively.
On the other suggests among other things that it is grounded on Articles 3, 10, 19, 20, 22, 25, 27, 49(1)(a) (i), (f) (i) and (h), 159, 244(c) and 259 of the Constitution, Section 123 of the Criminal Procedure Code and the Inherent Powers of the Court.
There is no more doubt that Article 49 of the Constitution is inapplicable to Anticipatory Bail and should not have been included.
Article 3 obligates every person has to respect, uphold and defend the Constitution. Article 10 provides that judicial officers (like Khaemba) and all persons shall in, among other things, applying or interpreting the Constitution and or any law, or implementing public policy be bound by national values and principles of governance including the rule of law, human dignity, human rights and integrity among others.
Articles 19, 20, 22, 25 and 27 which are of the most relevance to this discourse fall under Chapter 4 of the Constitution on the Bill of Rights. It is therefore without a doubt that the Application for Anticipatory Bail was premised on the Bill of Rights at least as far as these 5 articles are concerned. Their import is discussed hereunder.
Anticipatory bail as a remedy for breach or threat of breach to rights under the Bill of Rights
From the above definition coined from the Bail and Bond Policy Guidelines, it is clear that the purpose of (the grant of) anticipatory bail is to prevent the imminent - real and not imagined or speculative - arrest of an Applicant where the Applicant's Right to Liberty is likely to be compromised or breached unlawfully by an organ of the state that is supposed to protect this right.
The right to Liberty under Article 29 of the Constitution is one of the rights and freedoms under the Bill of Rights.
It therefore means that a breach of the right to Liberty is a breach of an Applicant's Rights and Fundamental Freedoms under the Bill of Rights. What then happens where there is such a breach or threat of breach Rights and Fundamental Freedoms under the Bill of Rights?
Article 23 of the Constitution again makes it clear that it is the High Court that has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
On the other hand, Article 165 which establishes the High Court provides inter alia at clause (3) (b) that subject to clause (5), the High Court shall have jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
There is no doubt that the Application before Khaemba raised the question as to whether the Applicants' right to Liberty under Article 29 of the Constitution was threatened by the danger of an imminent arrest (and that's why he barred such arrest).
Further, it is also without doubt that it is the High that has the exclusive jurisdiction to hear and determine such applications for redress of threats to rights or fundamental freedoms in the Bill of Rights.
Again, the learned Khaemba missed this by a mile despite the Application purporting to be brought under these very clear Constitutional provisions.
While it's not lost on me that Article 20 of the Constitution is to the effect that the Bill of Rights applies to and binds all persons including Khaemba; and that in applying a provision of the Bill of Rights, the court should develop the law to the extent that it does not (sic) give effect to a right or fundamental freedom; and adopt the interpretation that most favors the enforcement of a right or fundamental freedom; and further that in interpreting the Bill of Rights, a court shall promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and the spirit, purport and objects of the Bill of Rights, the Application of the Bill of Rights is an exclusive province of the High Court.
With the foregoing analysis, nothing much as far as the subject of jurisdiction herein seems to turn around Articles 19, 22, 25 and 27 and thus no further discussion therein is attempted herein.
The foregoing Constitutional provisions read together with the express terms of Paragraph 4.29 of the Judiciary Bail and Bond Guidelines above makes the grant of Anticipatory Bail an exclusive jurisdiction of the High Court.
One is left to wonder from where the learned Khaemba gets the freedom to judicially innovate and ends up exercising non-existent jurisdiction.
Why for example does he not abide at least by the Guidelines, even if they are merely persuasive? Could he be ignorant thereof?
Jurisdiction to subordinate courts to hear and determine applications relating to the Bill of Rights
Article 23 (2) of the Constitution obligates Parliament to enact a legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
While such a law may not have been enacted yet, sections 6 and 8 of the Magistrates Act provides for powers of the Magistrates in Criminal Matters and applications alleging the infringement and or threats of infringement of Rights respectively.
Section 8 of the Act empowers magistrates the express power to deal with matters of violation or threatened violation of human rights but limited to claims under Article 25 (a) and (b) of the Constitution: freedom from torture and cruel, inhuman or degrading treatment or punishment; and freedom from slavery or servitude.
As such, Magistrates' Courts, including Khaemba's, have nothing to do with claims and or applications outside Article 25(a) and (b) of the Constitution. They can therefore not hear matters under relating to anticipatory bail which clearly have nothing to do with freedom from torture and cruel, inhuman or degrading treatment or punishment; nor freedom from slavery or servitude.
The Magistrates' Courts have no jurisdiction to enforce breaches of fundamental rights outside Article 25 (a) and (b) of the Constitution. Hon. Khaemba had no jurisdiction. He acted ultra vires!
Decision of the High Court of Kenya at Machakos in SUSAN MBINYA MUSYOKA vs. INSPECTOR GENERAL OF POLICE & ANOTHER (Misc. Criminal Application No. 136 of 2016);  eKLR
Many counsel in attempting to sanitize the clear illegality by the learned Khaemba rushed to find solace in the above cited case in which the learned Justice Erick Ogolla inter alia that:
"18. This brings me to the discourse by other courts, the magistrate’s court, that they have no jurisdiction in dealing with matters affecting fundamental rights or right to bail pending arrest. This ruling now puts to rest any such debate. Every court in Kenya is founded upon the Constitution of Kenya. This means that in their everyday proceedings there will be need to interpret the Constitution in so far as the matter before the court is concerned. A magistrate’s court has the inherent power to protect fundament rights of parties appearing before that court. In terms of Criminal proceedings, it is true that most matters in which the citizen’s rights will be threatened may find jurisdiction in the lower courts. A magistrate’s court should not decline jurisdiction to hear and determine an application for anticipatory bail pending arrest."
With respect, Justice Ogolla's decision is per incurium as the learned Judge gets it wrong on at least two fronts as far as the jurisdiction to grant Anticipatory Bail is concerned.
While it is true that every court in Kenya is founded upon the Constitution of Kenya and there will in their everyday proceedings need to interpret the Constitution in so far as the matter before the court is concerned", before a court gets to interpret the relevant law, it must be certain that it has relevant jurisdiction.
Jurisdiction is everything. Without jurisdiction, a court of law cannot move one more step and must down its tools.
A Magistrates' Court lacks jurisdiction to hear applications for anticipatory bail and must down its tools the moment it realizes that what before it is an application relating to redress for alleged threats of infringement of fundamental rights and freedoms.
Khaemba failed in this basic aspect. In REPUBLIC vs. BENJAMIN JOMO WASHIALI, MAJORITY CHIEF WHIP, NATIONAL ASSEMBLY & 4 OTHERS EX PARTE ALFRED KIPTOO KETER & 3 OTHERS  eKLR, G.V. ODUNGA, J sitting at the High Court in Nairobi held inter alia that:
"60... In my view the subordinate courts are entitled to apply the Constitution in maters which they ordinarily have jurisdiction..."
Secondly, the jurisdiction of subordinate courts is given by Statute and the courts cannot be said to exercise inherent jurisdiction. In the EX PARTE ALFRED KIPTOO KETER case above, G.V. ODUNGA, J further held inter alia that:
"Pursuant to Article 169(2) the jurisdiction, functions and powers of the subordinate court are conferred by the respective Acts of Parliament establishing the particular subordinate Court. In other words subordinate courts being creatures of the statute must only exercise the powers conferred upon them by the statute creating them pursuant to the Constitution."
The decision by the learned Judge though yet to be challenged which I hope will happen very soon, is bad in law, and should not be allowed to bind subordinate courts as it would lead to an injustice.
The learned Judge cannot purport to grant magistrates' courts jurisdiction where none has been by law given. The learned Judge, with tremendous respect cannot amend Articles 22 and 165 by mere stroke of his pen.
That would be outright illegal and stinkingly unconstitutional!
But even if the decision by the learned Judge were sound in law, which I hold it's not, the question of the jurisdiction of the magistrates' courts wasn't one of the issues for determination before the learned Judge and as such the discussion around it is not the basis of the court's decision in the matter, and is thus merely Obiter Dictum which us not binding on the subordinate courts.
An anticipatory bail is clearly a Constitutional Remedy applicable to claims of infringement or threats of infringement of the right to Liberty with the jurisdiction to redress being an exclusive province of the High Court.
The decision by Khaemba is bad in law. At best it is a misapprehension of the Constitutional and statutory provisions on the jurisdiction of the magistrates' court for which he should be called out and at worst an abuse of power amounting to misconduct for which recommendations may be made for investigating his conduct.
The power to grant of anticipatory bail is clearly an exclusive jurisdiction of the High Court and the Magistrates Courts are excluded in the exercise thereof.
There is nothing bold about a judicial officer acting without jurisdiction. Luckily, and needless to add, the decision is not binding on any court as the court is not one of record.
The decision needs to, as a matter of urgency, be revised by the High Court (other than Ogolla, J) notwithstanding that it may be said to be supported by the per incurium decision by the learned Ogolla, J). This is a suggestion that I am personally taking up with the Director of Public Prosecutions (DPP).
Despite being per incurium in my view, the decision of Justice Ogolla needs to be challenged at the Court of Appeal for finality.