Sam Wathika Vs Inspector General of Police and Others - Application For Anticipatory Bail

REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. …………..OF 2018
IN THE MATTER OF ENFORCEMENT OF FUNDAMENTAL RIGHTS

AND FREEDOMS
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT,
2015
AND
IN THE MATTER OF ARTICLES 22, 23, 25, 27, 28, 29, 35, 39, 47, 48,
49 AND 165(3) OF THE CONSTITUTION OF KENYA
BETWEEN
SAMUEL WATHIKA ………….…………………......................................…….
APPLICANT
AND
DIRECTOR OF PUBLIC PROSECUTION …………………...……….1ST
RESPONDENT
INSPECTOR GENERAL OF POLICE …………………………...……
2ND RESPONDENT
Page 1 of 32
CERTIFICATE OF URGENCY
I, ARNOLD OCHIENG OGINGA an Advocate of the High Court of Kenya
do certify that the Applicants’ Notice of Motion Application herein is
extremely urgent and ought to be heard and disposed of on priority basis for
the following reasons:
a) THAT the Applicant herein was summoned by the
Directorate of Criminal Investigations Department,
Kiambu Headquarters on 25th April, 2018.
b) THAT the Applicant received a phone call from a person
unknown to him summoning him to attend to the said
person in order to read a letter and to explain the same.
c) THAT the Applicant in that context instructed his
Advocates to write to the said office and request for a copy
of the said letter in order to enable the Applicant prepare
for the same and have prior knowledge of what he was
being summoned for.
d) THAT the Applicant requested for a copy of the said letter
and/or such information that was known to the
Respondents and the reasons as to why he was being
summoned but the same has since not been forthcoming
and the 1st Respondent’s agents declined to avail such
information or the said letter but insisted that the
Applicant does appear before them.
Page 2 of 32
e) THAT the Applicant is apprehensive that the Respondents
herein are acting in an opaque and secretive manner and
yet they are likely to make a decision that may adversely
affect the Applicant at any time.
f) THAT the Applicant is apprehensive that his fundamental
rights and freedoms are likely to be infringed and
hampered as he is already being subjected to
administrative action that is unreasonable and unfair and
contrary to the provisions of the Constitution as read with
the Fair Administrative Action Act.
g) THAT the Applicant therefore moves to this Honourable
Court with utmost speed and expediency in order to
safeguard and to secure his fundamental rights and
freedoms by seeking this Honourable Court’s protection.
h) THAT if the Application herein is not heard expeditiously,
there is a real danger that the Applicant’s constitutional
rights are likely to be jeopardized namely; the right to
equal protection of the law as guaranteed under Article 27
(1) of the Constitution; the right to human dignity as
stipulated under Article 28 of the Constitution; the right
not to be deprived of freedom arbitrarily or without just
cause and being detained without trial as guaranteed
under Article 29 of the Constitution; the right to access
Page 3 of 32
information as enshrined under Article 35 of the
Constitution; freedom of movement as guaranteed under
Article 39 of the Constitution; the right to fair
administrative action as guaranteed under Article 47 of
the Constitution as read with the Fair Administrative
Action Act; and the right to a fair trial as guaranteed
under Article 50 of the Constitution; among other
constitutional rights.
i) THAT the Applicant has been subjected to constant
unprecedented phone calls from a number unknown to
him and the same has occasioned him great
inconvenience, disturbance and mental anguish and
torment and it is only fair that this Honourable Court
expeditiously hears this Application to preserve the rights
and fundamental freedoms of the Applicant.
DATED at NAIROBI this...............26TH................. day of .....APRIL.....

2017
OCHIENG OGINGA & CO
ADVOCATES FOR THE APPLICANT
DRAWN AND FILED BY:

OCHIENG OGINGA & CO. ADVOCATES
3RD FLOOR, STUDIO HOUSE
MARCUS GARVEY ROAD, OFF-ARGWINGS KODHEK ROAD
P.O BOX 6961-00300
NAIROBI
MOBILE: 0717444939
SERIAL NUMBER: LSK/2017/2639
Page 4 of 32
ADM NUMBER: P105/13211/16
Email: [email protected] / [email protected]
TO BE SERVED UPON:
1. INSPECTOR GENERAL OF POLICE

NAIROBI
2. THE DIRECTOR OF PUBLIC PROSECUTIONS

NHIF BUILDING
NAIROBI
REPUBLIC OF KENYA
Page 5 of 32

AND FREEDOMS
AND
2015
AND
BETWEEN
SAMUEL WATHIKA ………….……………………...................................…….
APPLICANT
AND
RESPONDENT
2ND RESPONDENT
NOTICE OF MOTION
(Under Articles 19, 20, 21, 22, 23, 159 and 258 of the Constitution of Kenya,
2010; Rules 13 and 19 of the Constitution of Kenya (Protection of Rights
and Fundamental Freedoms) Practice and Procedure Rules, 2013, Section
123 of the Criminal Procedure Code, CAP 75, and all enabling provisions of
the Law)
Page 6 of 32
TAKE NOTICE that this Honourable Court will be moved on the ……..
day of ………………………. 2018 at 9:00 O’clock in the forenoon or soon
thereafter as Counsel may can be heard on the hearing of an application
on the part of the Applicant FOR ORDERS: -
1. THAT the Application be certified urgent and heard ex parte in
the first instance.
2. THAT the Applicant, SAMUEL WATHIKA be admitted to
anticipatory bail pending any contemplated arrest or charge
and/or action by the Respondents and/or their agents namely,
police officers and/or any other person or persons who may be
so instructed by them to undertake any such arrest and/or
adverse action.
3. THAT the Applicant, SAMUEL WATHIKA be admitted to
anticipatory bail with the terms and conditions that the Court
may deem reasonable in the circumstances pending any
contemplated arrest or charge by the Respondents and/or their
agents and/or any other person or persons that may be so
instructed by them to undertake any such arrest.
4. THAT the Respondents be directed to supply and avail to the
Petitioner a copy of the letter, which he is being summoned to
explain and/or expound on.
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5. Any other remedy that the court deems fit and just.
6. The Cost of this Application be borne by the Respondents.
THIS Application is based on the grounds THAT;
a) On the 25th of April 2018 the Applicant received a phone call from a
number unknown to him from a person by the name Karisa, who
claimed to be from the Criminal Investigations Department, Kiambu
Headquarters.
b) That the said Karisa instructed him to appear before him in order to
read and explain and/or expound on a letter which had details and/or
information pertaining to him.
c) That the Applicant requested for a copy of the said letter and further
details pertaining to the information contained therein but the said
Mr. Karisa declined to reveal the said information.
d) The Applicant thereafter instructed his Advocate to attend to the same
and request for the said letter and information.
e) The Applicant’s Advocate wrote to the Criminal Investigations
Department and specifically requested for the said letter so as to
enable the Applicant appraise himself with the contents thereof and
any such facts that he was being summoned to explain and/or
expound as contained in the said letter but no response was given and
neither was he given a copy of the said letter.
Page 8 of 32
f) The Applicant is thus apprehensive that the Respondents are holding
information that may affect him and are summoning him on the basis
of that information without giving and/or revealing the same to him
and that they shall use that information adversely against him.
g) The Applicant is apprehensive that the Respondents might take some
adverse action against him such as arresting and/or detaining him at
any time and hence he has moved to this Honourable Court seeking
for anticipatory bail.
h) The Applicant is aggrieved by the manner in which the Respondents
are acting as they are acting in secrecy, in an opaque manner and
never have they at any time informed the Applicant that they have
been investigating him or not and/or making inquiries about him.
i) The Applicant is apprehensive that the Respondents will arrest and or

detain him at any juncture and hence it is in the interest of justice
that this Court intervenes and ensures that the Respondents act in
accordance with the law.
WHICH Application is further based on the grounds contained in the
affidavit of SAMUEL WATHIKA annexed hereto and upon further and
other reasons to be adduced at the hearing thereof.
2017
OCHIENG OGINGA & CO
ADVOCATES FOR THE APPLICANT
DRAWN AND FILED BY:

P.O BOX 6961-00300
NAIROBI
Page 9 of 32
MOBILE: 0717444939
TO BE SERVED UPON:

NAIROBI

NHIF BUILDING
NAIROBI
NOTICE; If any party served does not appear at the time and place above
mentioned, such order will be made and proceedings taken as the court
may think just and expedient.
REPUBLIC OF KENYA
Page 10 of 32

AND FREEDOMS
AND
2015
AND
BETWEEN
SAMUEL WATHIKA ………….…………………......................................…….
APPLICANT
AND
RESPONDENT
2ND RESPONDENT
SUPPORTING AFFIDAVIT
I, SAMUEL WATHIKA, a resident of Nairobi County within the Republic of
Kenya and of P.O. Box 7850-00200 do swear and state as follows:
Page 11 of 32
1) THAT I am the Applicant herein and hence competent to swear and
depose to this Affidavit.
2) THAT I swear this Affidavit in support of the present Application herein
and in support of the Petition herein.
3) THAT on the 25th day of April, 2018 I received a phone call from a
number unknown to me, namely, 0721464925 from one Mr. Karisa, who
informed me that he was in possession of a letter containing my
information and hence I was required to appear before him at the
Criminal Investigations Department, Kiambu Headquarters, Block B,
Door No. 61, to read and explain the contents of the said letter.
4) THAT on the same day I instructed my Advocate to attend to the same
and request for the said letter so as to enable me appraise myself with
the contents and to enable me prepare for the same so as to explain and
or expound on any such issues that may arise out of the same.
5) THAT on the same day my Advocate wrote to the Office of the Criminal
Investigations Department specifically to the said Mr. Karisa requesting
for the said letter. Annexed herewith and marked SW-1 is a copy of
the said Letter from my Advocates.
6) THAT the said Mr. Karisa, despite receiving the said letter from my
Advocates, declined giving me a copy of the said letter and has since
insisted that I must appear before him to explain and expound on the
same.
Page 12 of 32
7) THAT I am apprehensive that I am being summoned to explain and
expound on information that I do not have or details that are not within
my knowledge and yet the Officer is holding such information that
directly affects me and intends to take administrative action or any such
unknown action against me in regard to the said information.
8) THAT the actions by the Respondent is greatly prejudicial to me, as I am
being unreasonably ambushed and summoned unofficially to answer to
and/or explain information that I am unaware of without being given
prior notice and or copies and/or details pertaining to the same.
9) THAT the Respondents through their agent, are thus acting in a
suspicious, unreasonable manner and I am advised by my Counsel on
record which advise I verily believe to be true that the said actions are
contrary to Article 47 of the Constitution as read with the Fair
Administrative Action Act.
10) THAT the actions by the Respondents have subjected me to mental
torture and torment and I have had a sleepless night as I am in constant
fear that the Respondents might take adverse actions against me on the
basis of information they are withholding against me.
11) THAT I had a legitimate expectation that if the Respondents were for
instance undertaking any investigations or inquiries about me, they
would have given me prior notice of the same and/or furnished me with a
formal notice and/or letter pertaining to the same and/or summoned me
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formally and given me prior evidence and or information that I am being
summoned to explain and/or expound.
12) THAT the Respondents through their agents have opted to ambush
and summon me to answer to allegations and/or information that I am
unaware of and hence their action will be and continue to hamper on my
fundamental rights and freedoms.
13) THAT I am willing and ready to cooperate with the Respondents and I
am willing to abide by any such terms and conditions that may be
granted by this Honourable Court including any such bail terms that may
be granted.
14) THAT the actions by the Respondents are an infringement of my
constitutional rights as they are acting in an opaque manner and
subjecting me to unreasonable administrative action and withholding
information that may affect me and denying me access to that
information.
15) THAT I am apprehensive that the Respondents together with their
agents shall and/or may arrest, detain and hold me and/or take such
adverse actions against me on the basis of information they are holding
in their possession.
16) THAT I am advised by my Counsel on record which advise I verily
believe to be true that it is in the interest of justice that the Court allows
the present Application in order to secure my right not to be deprived of
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freedom arbitrarily without just cause as guaranteed under Article 29 (a)
of the Constitution.
17) THAT I undertake to attend to and respond to any questions and/or
any summons that may be issued by the Respondents or as may be
directed by this Honourable Court.
18) THAT I pray that I be granted anticipatory bail to protect against my
arbitrary detention and confinement and unreasonable administrative
action that is contrary to the dictates of the Constitution.
the present Application in order to secure my right to freedom of
movement as guaranteed under Article 39 of the Constitution.
the present Application in order to secure my right to a fair trial and
access to justice as guaranteed under the Constitution.
21) THAT I am apprehensive that should this Honourable Court not
intervene, I shall suffer irreparable damage and gross and fundamental
contravention of my constitutional fundamental rights and freedoms.
22) THAT if the Application herein is not heard expeditiously, there is a
real danger and I am advised by my Counsel on record that my
constitutional rights are likely to be jeopardized namely; the right to
equal protection of the law as guaranteed under Article 27 (1) of the
Page 15 of 32
Constitution; the right to human dignity as stipulated under Article 28 of
the Constitution; the right not to be deprived of freedom arbitrarily or
without just cause and being detained without trial as guaranteed under
Article 29 of the Constitution; freedom of movement as guaranteed under
Article 49 of the Constitution; and the right to a fair trial as guaranteed
under Article 50 of the Constitution; among other constitutional rights.
23) THAT I urge the Honourable Court to intervene by halting the
illegalities being perpetuated by the Respondents and to secure my
fundamental rights and freedoms and my legitimate expectations.
24) THAT I swear this Affidavit in support of the Application herein and
the Petition herein urging the Honourable Court to allow the same and
grant the Orders sought herein.
25) THAT what is deponed to herein is true to the best of my own
knowledge, information and belief sources and basis whereof have been
disclosed herein.
SWORN by the said )

)
SAMUEL WATHIKA ) ………………………………………
at Nairobi this 26TH day of APRIL, 2017 )
BEFORE ME
COMMISSIONER FOR OATHS
DRAWN AND FILED BY:

Page 16 of 32
P.O BOX 6961-00300
NAIROBI
MOBILE: 0717444939
TO BE SERVED UPON:

NAIROBI

NHIF BUILDING
NAIROBI
REPUBLIC OF KENYA

AND FREEDOMS
AND
2015
AND
BETWEEN
Page 17 of 32
SAMUEL WATHIKA ………….…………………......................................…….
APPLICANT
AND
RESPONDENT
2ND RESPONDENT
TO:
THE HIGH COURT OF KENYA
The Humble Petition of SAMUEL WATHIKA is as follows;
THE PARTIES
1. The Petitioner, SAMUEL WATHIKA is an adult male of sound mind
working for gain and residing in Nairobi within the Republic of Kenya.
His address for service for purposes of this suit is OCHIENG OGINGA
& COMPANY ADVOCATES, STUDIO HOUSE, 3RD FLOOR, MARCUS
GARVEY ROAD, OFF-ARGWINGS KODHEK ROAD, P.O BOX 6961-
00300, NAIROBI.
Page 18 of 32
2. The 1st Respondent is the Director of Public Prosecutions whose office
is created pursuant to Article 157 of the Constitution and his mandate
includes to exercise the State’s powers of prosecution.
3. The 2nd Respondent is the Inspector General of Police whose office is a
creation of the Constitution and among its mandate includes
conducting investigations in regard to the commission of offences
among others.
FACTS OF THE CASE
4. On the 25th day of April, 2018 the Petitioner received a phone call
from a number unknown to him namely, 0721464925, which turned
out to belong to one Mr, Karisa, an officer attached to the Criminal
Investigations Department Headquarters at Kiambu.
5. Pursuant to the said phone call, the Petitioner was being summoned
to appear before the said Mr. Karisa to read and to explain and/or
expound the contents of a letter in possession of the Respondents.
6. The Petitioner thereafter requested for a copy of the said letter and
further instructed his Advocates to request for the same but the
Respondents declined and/or refused to give him a copy of the said
letter.
7. Despite formally writing to the Respondents requesting for a copy of
the said letter, the Respondents have declined giving a copy of the
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same to the Petitioner and have insisted that he appears before them
to explain and/or expound on the contents of the said letter.
8. The Petitioner is not aware of the contents of the said letter and yet
he is being summoned to expound and/or explain the contents therein.
9. The Petitioner has requested for a copy of the said letter so as to
enable him appraise himself with the contents therein and to enable
him explain and/or expound on the same as required of him but the
Respondents have since declined to give him a copy of the same.
10. The Petitioner is thus apprehensive that the Respondents shall
use the said information in their possession to take such adverse
action against him and thus hamper and infringe on his constitutional
rights and fundamental freedoms.
11. The Petitioner is apprehensive that the Respondents’ actions
shall continue subjecting him to mental torture and torment and
constant fear of adverse actions being taken against him.
LEGAL FOUNDATIONS OF THE PETITION
12. Article 2(1) of the Constitution of Kenya pronounces the
supremacy of the Constitution and provides that the Constitution
binds “all persons and all State Organs at both levels of government”.
13. Article 2(5) of the Constitution provides among other things
that any act or omission in contravention of the Constitution is invalid.
Page 20 of 32
14. Article 3 of the Constitution of the Republic of Kenya obligates
every person to respect, uphold and defend the Constitution.
15. Article 22 (1), read together with Article 258 (1) gives every
person the right to institute court proceedings claiming the right or
fundamental freedom in the Bill of Rights has been denied, violated or
infringed or is threatened. Article 22 (2) and Article 258 (2)
provides that in addition to a person acting in their own interest,
court proceedings under clause 1 may be instituted by: a. a person
acting on behalf of another person who cannot act in their own name;
b. a person acting as a member of, or in the interest of, a group or
class of persons; c. a person acting in the public interest; or d. an
association acting in the interest of one or more of its members.
16. Article 27 (1) of the Constitution guarantees every person the
right to equal protection of the law.
17. Article 28 of the Constitution guarantees every person the
right to human dignity it provides that;
Every person has inherent dignity and the right to have
that dignity respected and protected.
18. Article 29 guarantees every person the right to freedom and
security of the person. It states that;
Every person has the right to freedom and security of the
person, which includes the right not to be-
Page 21 of 32
(a) Deprived of freedom arbitrarily or without just
cause;
(b) Detained without trial, except during a state of
emergency, in which case the detention is subject to
Article 58;
(c) Subjected to any form of violence from either
public or private sources;
(d) Subjected to torture in any manner, whether
physical or psychological;
(e) Subjected to corporal punishment; or
(f) Treated or punished in a cruel, inhuman or
degrading manner.
19. Article 40 guarantees every person the right to own property.
It stipulates that:
(1) Subject to Article 65, every person has the
right, either individually or in association with
others, to acquire and own property-
(a) Of any description; and
(b) In any part of Kenya
(2) Parliament shall not enact a law that permits
the State or any person-
(a) To arbitrarily deprive a person of property
of any description or of any interest in, or
Page 22 of 32
right over, any property of any description;
or
(b) To limit, or in any way restrict the
enjoyment of any right under this Article on
the basis of any of the grounds specified or
contemplated in Article 27 (4).
(3) …
20. Article 47 guarantees every individual the right to fair
administrative action. It provides that;
(1) Every person has the right to administrative action
that is expeditious, efficient, lawful, reasonable and
procedurally fair.
(2) If a right or fundamental freedom of a person has
been or is likely to be adversely affected by administrative
action, the person has the right to be given written
reasons for the action.
(3) Parliament shall enact legislation to give effect to
the rights in clause (1) and that legislation shall-
a) Provide for the review of administrative action by a
court or, if appropriate, an independent and
impartial tribunal; and
b) Promote efficient administration.
Page 23 of 32
21. Article 48 guarantees every person the right to access justice.
It provides that;
The State shall ensure access to justice for all persons
and, if any fee is required, it shall be reasonable and shall
not impeded access to justice.
22. Article 50 guarantees every person the right to a fair hearing.
It states that;
(1) Every person has the right to have any dispute that
can be resolved by the application of law decided in a
fair and public hearing before a court or, if
appropriate, another independent and impartial
tribunal or body.
23. Article 238 of the Constitution outlines the principles of
national security it stipulates thus;
(1) National Security is the protection against internal
and external threats to Kenya’s territorial integrity and
sovereignty, its people, their rights, freedoms, property,
peace, stability and prosperity, and other national
interests.
(2) The national security of Kenya shall be promoted
and guaranteed in accordance with the following
principles-
Page 24 of 32
(a) National security is subject to the authority of this
Constitution and Parliament;
(b) National security shall be pursued in compliance
with the law and with the utmost respect for the rule of
law, democracy, human rights and fundamental
freedoms;
(c) In performing their functions and exercising their
powers, national security organs shall respect the
diverse culture of the communities within Kenya; and
(d) Recruitment by the national security organs shall
reflect the diversity of the Kenyan people in equitable
portions.
24. Article 244 of the Constitution outlines the Objects and
functions of the National Police Service as follows;
The National Police Service shall-
a) Strive for the highest standards of professionalism
and discipline among its members;
b) Prevent corruption and promote and practice
transparency and accountability;
c) Comply with constitutional standards of human
rights and fundamental freedoms;
Page 25 of 32
d) Train staff to the highest possible standards of
competence and integrity and to respect human
rights and fundamental freedoms and dignity; and
e) Foster and promote relationships with the broader
society.
25. Article 157 of the Constitution establishes the Office of the
Director of Public Prosecutions and sub-clause (4) and (11) thereof
provides that;
(4) The Director of Public Prosecutions shall have power
to direct the Inspector-General of the National Police
Service to investigate any information or allegation of
criminal conduct and the Inspector-General shall comply
with such direction.
(11) In exercising the powers conferred by this Article,
the Director of Public Prosecutions shall have regard to
the public interest, the interests of the administration of
justice and the need to prevent and avoid abuse of the
legal process.
26. Article 245 of the Constitution establishes the Office of the
Inspector General of the National Police Service who may be given a
direction in writing by the Director of Public Prosecutions under
Article 157(4) of the Constitution.
Page 26 of 32
27. Article 23 of the Constitution grants this Honourable Court the
powers to grant any such appropriate relief, including
a) a declaration of rights;
b) an injunction;
c) a conservatory order;
d) a declaration of invalidity of any law that denies,
violates, infringes, or threatens a right or fundamental
freedom in the Bill of Rights and is not justified under
Article 24;
e) an order for compensation; and
f) an order of judicial review.
28. In addition, Article 25 of the Constitution encapsulates that
the right to a fair trial cannot be in any way limited and/or hampered
as it is an absolute right.
CONTRAVENTION OF THE PETITIONER’S RIGHTS
29. The actions by the Respondents herein are an affront to the
Petitioner’s constitutional rights to equal protection of the law; right
to human dignity; right to privacy; right to fair administrative action;
my right to access justice; and the right to a fair trial among others.
30. The Petitioner has been denied access to information being held
by the Respondents which information the Respondents intend to use
and take adverse action against him, the said actions are thus an
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infringement of the Petitioner’s rights as guaranteed under Article 35
of the Constitution.
31. The Petitioner is being subjected to administrative action that is
unreasonable and procedurally unfair as he is being summoned on the
basis of information that he is not being given; he is being ambushed
and summoned to answer and to expound to a letter he has not been
given, despite asking for the same; that he is being subjected to
inquiries without being given prior notice and/or prior information
pertaining to the same so as to enable him to adequately respondent
and/or expound and/or explain the issues being raised. The foregoing
is an infringement of the Petitioner’s right to fair administrative
action as guaranteed under Article 47 of the Constitution as read with
the provisions of the Fair Administrative Action Act.
32. There is a real danger that the Petitioner’s constitutional rights
are likely to be further jeopardized namely; the right to equal
protection of the law as guaranteed under Article 27 (1) of the
Constitution; the right to human dignity as stipulated under Article 28
of the Constitution; the right not to be deprived of freedom arbitrarily
or without just cause and being detained without trial as guaranteed
under Article 29 of the Constitution; the right to access information as
enshrined under Article 35 of the Constitution; freedom of movement
as guaranteed under Article 39 of the Constitution; the right to fair
administrative action as guaranteed under Article 47 of the
Page 28 of 32
Constitution as read with the Fair Administrative Action Act; and the
right to a fair trial as guaranteed under Article 50 of the Constitution;
among other constitutional rights.
33. The Petitioner has been subjected to constant unprecedented
phone calls from a number unknown to him and the same has
occasioned him great inconvenience, disturbance and mental anguish
and torment and thus occasioning great prejudice on the Petitioner’s
right to equal protection of the law, privacy and dignity and the
freedom to be protected against torture of any manner.
34. The Respondents herein are abusing their offices and powers
and discriminating against the Petitioner and subjecting him to
victimization and illegal and unreasonable administrative action.
35. The Petitioner is being discriminated against and victimized and
am being denied the right to equal protection of the law as
guaranteed under Article 27 (1) of the Constitution.
36. The Petitioner had a legitimate expectation that the
Respondents shall at all material times be bound by the rule of law
and shall adhere to the constitutional dictates and uphold her
fundamental rights and freedoms as enshrined in the Bill of Rights
and under International Law.
37. The Petitioner had and still has a legitimate expectation that the
State shall accord her the necessary protection of the law as
guaranteed under the Constitution and that the Office of the Director
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of Public Prosecutions shall at all material times exercise its powers in
accordance with the Constitution; in the interest of the administration
of justice and without any abuse of the legal process.
38. That the actions by the Respondents are contrary to the
Petitioner’s legitimate expectations which are founded both in Statute
and in the Constitution of Kenya, 2010.
REASONS WHEREFORE YOUR PETITIONER humbly prays for the
following orders THAT: -
(1)A DECLARATION does issue declaring that the Petitioner’s right
to access information as guaranteed under Article 35 of the
Constitution; the right to equal protection of the law as guaranteed
under Article 27 (1); the right to have his dignity respected and
protected; the right to privacy as guaranteed under Article 31 of
the Constitution; the right to access justice as guaranteed under
Article 48 of the Constitution; the right to administrative action
that is reasonable and procedurally fair as guaranteed under
Article 47 of the Constitution; and the right to a fair trial as
guaranteed under Article 50 of the Constitution, violated and
contravened by the Respondents.
(2)AN ORDER FOR COMPENSATION of the Petitioner in terms of
general damages for the distress and mental anguish caused by the
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infringement of her fundamental rights and freedoms and the
inconvenience occasioned by the Respondents.
(3)AN ORDER FOR COMPENSATION of the petitioner in terms of
general damages for the infringement of her fundamental rights
and freedoms as alleged in the Petition.
(4)AN ORDER awarding costs of the Petition to the Petitioner.
(5)Any other or further orders, writs and directions this court
considers appropriate and just to grant for the purpose of the
enforcement of the petitioners fundamental rights and freedoms.

2017
OCHIENG OGINGA & CO
ADVOCATES FOR THE PETITIONER
DRAWN AND FILED BY:

P.O BOX 6961-00300
NAIROBI
MOBILE: 0717444939
TO BE SERVED UPON:
Page 31 of 32
NAIROBI

NHIF BUILDING
NAIROBI
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Sam Wathika Vs Inspector General of Police and Others - Application For Anticipatory Bail

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Sam Wathika Vs Inspector General of Police and Others - Application For Anticipatory Bail

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REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. …………..OF 2018

IN THE MATTER OF ENFORCEMENT OF FUNDAMENTAL RIGHTS

SAMUEL WATHIKA ………….…………………......................................…….

DIRECTOR OF PUBLIC PROSECUTION …………………...……….1ST

INSPECTOR GENERAL OF POLICE …………………………...……

do certify that the Applicants’ Notice of Motion Application herein is

the following reasons:

a) THAT the Applicant herein was summoned by the

Directorate of Criminal Investigations Department,

Kiambu Headquarters on 25th April, 2018.

b) THAT the Applicant received a phone call from a person

unknown to him summoning him to attend to the said

person in order to read a letter and to explain the same.

c) THAT the Applicant in that context instructed his

Advocates to write to the said office and request for a copy

of the said letter in order to enable the Applicant prepare

for the same and have prior knowledge of what he was

being summoned for.

d) THAT the Applicant requested for a copy of the said letter

and/or such information that was known to the

Respondents and the reasons as to why he was being

summoned but the same has since not been forthcoming

and the 1st Respondent’s agents declined to avail such

information or the said letter but insisted that the

Applicant does appear before them.

herein are acting in an opaque and secretive manner and

yet they are likely to make a decision that may adversely

affect the Applicant at any time.

f) THAT the Applicant is apprehensive that his fundamental

rights and freedoms are likely to be infringed and

hampered as he is already being subjected to

administrative action that is unreasonable and unfair and

contrary to the provisions of the Constitution as read with

the Fair Administrative Action Act.

g) THAT the Applicant therefore moves to this Honourable

Court with utmost speed and expediency in order to

safeguard and to secure his fundamental rights and

freedoms by seeking this Honourable Court’s protection.

h) THAT if the Application herein is not heard expeditiously,

there is a real danger that the Applicant’s constitutional

rights are likely to be jeopardized namely; the right to

equal protection of the law as guaranteed under Article 27

(1) of the Constitution; the right to human dignity as

stipulated under Article 28 of the Constitution; the right

not to be deprived of freedom arbitrarily or without just

cause and being detained without trial as guaranteed

under Article 29 of the Constitution; the right to access

Constitution; freedom of movement as guaranteed under

Article 39 of the Constitution; the right to fair

administrative action as guaranteed under Article 47 of

the Constitution as read with the Fair Administrative

Action Act; and the right to a fair trial as guaranteed

under Article 50 of the Constitution; among other

i) THAT the Applicant has been subjected to constant

unprecedented phone calls from a number unknown to

him and the same has occasioned him great