In Summary
  • Kiambu Principal Magistrate Bryan Khaemba issued anticipatory bail to Governor Ferdinand Waititu.
  • Of concern is whether the magistrate had the powers to issue such a bail.
  • Lawyer Nelson Havi defended the magistrate saying there was sufficient grounds for him to give such orders.

In October 1986, long-time human rights defender and lawyer John Khaminwa created a precedent when he appeared in court to represent ambassador Musa Simani.

Dr Khaminwa sought a “bail pending arrest” from Chief Justice CB Madan for his client whom the state wanted to arrest and detain during a period when repression against activists that government accused of planning to overthrow it was at an all-time high.

Judge CB Madan, a man still regarded as the best chief justice in Kenya, was sacked before he could finalise writing the ruling after the then public prosecutor Bernard Chunga complained that the judge was about to issue bail pending arrest, legally also known as an anticipatory bail.

ANTICIPATORY BAIL

Now 33 years later, Kiambu Principal Magistrate Bryan Khaemba reignited the debate last Friday after he issued a similar anticipatory bail to Governor Ferdinand Waititu and Kiambu County Finance Chief Officer Faith Njeri Harrison.

On Friday, the Nation established that the Ethics and Anti-Corruption Commission (EACC) was considering filing a complaint against the decision.

Of concern is whether the magistrate had the powers to issue such a bail.

The decision has divided the legal profession in the middle with some arguing that an anticipatory bail is granted to checkmate on the practice of advance punishment whereas others hold the opinion that despite such anticipatory bail orders being good in the legal business, issuing them amounts to an unallowable stretch of jurisdiction by innovation.

ACTED BEYOND POWERS

Among the first lawyers to plunge into the matter is Donald Kipkorir who holds the position that the magistrate acted beyond his powers.

“Anticipatory bail is an innovative right not in our constitution but can only be given by the High Court … The alleged anticipatory bail given by a magistrate in Kiambu to Ferdinand Waititu should be torn up and the magistrate dismissed. High Court has exclusive jurisdiction,” Mr Kipkorir tweeted.

Lawyer Omwanza Ombati argued that the magistrate had broken new ground in jurisprudence by granting an anticipatory bail to Governor Waititu.

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