Governance expert and human rights activist Barasa Kundu Nyukuri has acquired orders barring anyone from “haphazardly” arresting him following the previous arrest on allegations that he obtained money by false pretense. Barasa moved to court to raise concern on the way he was handled during and after the arrest.
Respondents to Nyukuri’s application for orders of prohibition and Certiorari were:
The urgency being that the Exparte Applicant’s constitutional rights and fundamental freedoms under the Bill of Rights of the Constitution of Kenya, 2010; including his Freedom from Discrimination and Equality before the Law, Freedom of Association, Freedom of Expression, Right to Security of Person and Property and Freedom of Movement have been curtailed by the constant threats, harassment, intimidation, anticipated summon, arrest, re-arrest and intended prosecution before the 1st respondent herein by the 2nd to 6th Respondents based on the alleged crime of “obtaining money by false pretence as framed in the cash bail dated 27th April 2027 by the 3rd to 6th Respondents herein based on the direct and indirect instigation and misinformation by the 7th to 13th Respondents herein.
The Exparte Applicant is very apprehensive that unless the conservatory orders and other reliefs sought in this instant Application are granted by this Honourable Court, there is every likelihood that his constitutional rights and fundamental freedoms are not only threatened but will be irreversibly be violated by the 1st to 13th
That the substrum of this instant Application and intended Substantive Judicial Review Application must be preserved and ring-fenced by this Honourable Court, lest is there is imminent danger of rendering the Substantive Judicial Review Application and the entire court process nugatory and a mere academic exercise.
That unless this instant Application is urgently heard and determined on a priority basis by this Honourable Court, the Exparte Applicant herein is extremely vulnerable to physical harm, assault, injury and physiological torture and even death because of the numerous offensive public utterances and threats to his life by the 7th to 13th respondents and/or by their agents, servants and allies and coached witnesses of the aforementioned respondents.
Nyukuri Barasa ~ Complainant
That the Exparte Applicant is a renowned Governance Expert, Human Rights Defender and Volunteer Public Interest Litigant with over 30 years of experience in public for sound public policy, good governance, transparency and social accountability at county, country and continental levels but is increasing facing hurdles in continuing with his work, especially in Bungoma County and its environs because of the threats and vilification by the 7th to 13th Respondents, contrary to provisions of Article 33 of the Constitution of Kenya, 2010.
The Exparte Applicant is extremely traumatized because of being constantly tracked, followed by unknown cars, motorbikes and threatened by anonymous telephone callers whom he believes are on a send mission by the respondents herein, catalyzed and characterized by personal vendetta, revenge and hostility of the said respondents in relation to his ongoing Cases in Court for Review of Judgment delivered in favour of the Casual Workers, some of whom are related and/or associated with some of the Respondents. The Exparte Applicant’s for the Review of the Judgement, Orders and Decree is dated 7th February 2023, Petition No. 1 of 2019 and is due for further direction or judgment on the 26th July 2023 at the Employment and Labour Relations Court at Bungoma.
The Exparte Applicant has on several occasions been waylaid and ambushed outside and inside the precincts of Bungoma Law Courts to follow his Case for Review of Judgment against Casual Workers by the ELRC Court at Bungoma, but he fears to report such threats to the 3rd to 6th Respondents herein because he believes they maybe part of the syndicate and conspiracy orchestrated by the 7th to 13th Respondents to kidnap, harm, injure and /or kill him because of his hard stance against the illegal and irregular recruitment of Casual Workers and Village Administrators by the 7th and 8th Respondents, who have serious vested interests together with the 9th to 13th Respondents herein.
The Exparte Applicant wish to inform this Honourable Court that he has no peace of mind and is unable to exercise and/or enjoy his rights and fundamental freedoms in Bungoma County and its environs because of the uncertain, unpredictable, hostile and dangerous living and working environment and witch-hunt orchestrated by the aforementioned Respondents and coached witnesses with unfounded and unsubstantiated criminal allegations such as obtaining money by false pretence.
The Exparte Applicant wish to inform this Honourable Court state that he was arrested based on the aforementioned trumped charges 27th April, 2023 by the instigation of the 7th to 13th respondents herein.
The Exparte Applicant wish to bring to the attention of this Honourable Court thatit is now over Sixty (60) Working Days (as at today the 13th July 2023) since the highly politicized seizure, stage-managed, hasty, impulsive and cursory arrest of the Exparte Applicant on the 27th April 2023 by the 3rd to 6th Respondents and yet there hasn’t been any formal communication and/or official summon from the 2nd to 6th Respondents herein for him to present himself and/or be arraigned by the aforementioned Respondents before the 1st Respondent herein.
The Exparte Applicant wish to inform this Honourable Court that he is a humble public figure and law obeying citizen, renown human rights defender and governance expert with no past criminal record. He is not above the law and is not a run-away criminal and yet his alleged criminal offence has taken too long for the 2nd to 6th Respondents to conclude and arraign him before the 1st Respondent, contrary to provisions of Sections 89, 90, 92, 108, 134, 150 of the Criminal Procedure Code.
The Exparte Applicant has been kept in suspense, anxiety and subjected to psychological torture by the 2nd to 6th Respondents and is now living with the fear of the unknown, contrary to provisions of Section 27,28,29 & 39 of the Constitution of Kenya, 2010. He is yet to be informed, summoned, processed and taken before the 1st Respondent (i.e., Bungoma Chief Magistrates’ Court) to answer to the alleged criminal charge of obtaining money by false pretence from some unknown claimants/ coached, witnesses facilitated and transported to record statements before the 6th Respondent at Bungoma South Police Station against the Exparte Applicant by the 7th to 8th Respondents and /or their agents.
The Exparte Applicant avers that the delayed criminal investigative action and prosecution is contrary to Section 108 of the Criminal Procedure Code, which can only be at best be explained as an indicator/sign of conspiracy, incompetency, abuse of office, violation of the rule of law and due process, gross misconduct and impunity.
The highlighted behaviour, conduct and actions of the 2nd to 6th Respondents are contrary to the rules of natural justice, several sections of the Fair Administrative Action Act, 2015 and several Sections of the Criminal Justice Procedures in the Republic of Kenya. This is contrary to constitutional provisions on fair administration of justice, fair trial, fair hearing and misuse of time as a public resource as stipulated in various provisions, including Articles 1, 2, 3, 10, 21, 22,23, 27, 28, 29, 33, 35,36, 39, 47, 48, 49, 50, 73, 232 & 258 of the Constitution of Kenya, 2010.
The Exparte Applicant humbly request this Honourable Court to assert its judicial authority stipulated in Article 165 (3) of the Constitution of Kenya, 2010 that grants it supervisory jurisdiction over lower courts, tribunals and other quasi-judicial institutions including those presided over by the 1st to 6th Respondents herein.
That this Honourable Court has the mandate and legal authority to seek satisfactory explanation on the reasons or grounds for the continued delay and inquire on whose order or permission did the 2nd to 6th Respondents extent/continue with their investigation beyond the statutory time of either 24 Hours as stipulated in Article 49 of the Constitution of Kenya, 2010 or 7days or 14days if granted by the 1st Respondent upon Application by the 2nd to 6th .
The Exparte Applicant is of the informed view that the authority to extent/continue with the investigation into the alleged criminal allegation of obtaining money by false pretense can only be considered and/or granted to the 2nd to 6th Respondents by the 1st Respondent herein only after the arraignment of the Suspect (Exparte Applicant) in the Chief Magistrates Court and upon a Formal Application seeking the leave of the said Court to continue detaining the suspect or extent his Police Cash Bail/Bond.
The Exparte Applicant wish to inform this Honourable Court that he has been “kept in suspense, unwarranted anxiety and fear of the unknown” by the 2nd to 6th Respondents herein for a period of more than two months since his arrest on the 27th April 2023 and he is not aware or been informed of any Application presented by the 2nd to 6th Respondents filed before the 1st Respondent, seeking leave for extension of time to carry out further investigation against him (the suspect herein) on the aforementioned alleged serious offense of obtaining money by false pretense as contained in the Police Cash Bail/Bond.
The Exparte Applicant wish to inform this Honourable Court, that the 2nd to 6th Respondents herein are yet to seek leave of the relevant courts of law dealing with criminal matters for them continue holding him as a suspect and keeping him in a state of fear and uncertainty. It will be interesting to learn of any written and/or applicable law in the Republic of Kenya and in the Commonwealth that grants the investigating agencies leeway to carry out criminal investigations forever without permission from the 1st Respondent and/or this Honourable Court.
That the 2nd to 6th Respondents are yet to communicate or informed the Exparte Applicant of the apparent delay, and therefore they have abused their respective Office and also acted contrary to provisions of Article 35 of the Constitution of Kenya, 2010 as read together with several sections of the Fair Administrative of Justice Act 2015 and several sections of the Access to Information Act, 2016. I hereby fortify my point of view and grounds for this Judicial Review Application by echoing the common adage that “justice that is delayed is justice denied”.
That it is unconstitutional and unlawful for the 2nd to 6th Respondents to extent/continue carrying out their seemingly open ended investigations, whose time frame is unknown, yet there are statutory timelines and standardized procedures governing the commencement, hearing and determination of all criminal cases in the Republic of Kenya. In this regard, the Exparte Applicant avers that the 2nd to 6th Respondents herein are in “a deep and bottomless minefield, on a fishing expedition and on a witch hunting mission to try by all means to find fault or any slight or far-fetched evidence to link him to the already pre-formulated/written criminal charge sheet of obtaining money by false pretense.
The Exparte Applicant wish to inform this Honourable Court the 2nd to the 6th Respondents herein have solicited/collected all the necessary and/or required statements and documents from the parties and witnesses in the alleged criminal case against the Applicant and his co-accused and there are no justifiable reasons or grounds for the delay to arraign the suspects before the 1st Respondent herein.
The Exparte Applicant is yet to get any satisfactory answer from the 2nd to 6th Respondents as to why they were in a hurry or rush to arrest him and his co-accused Pius Ndumba booked under unknown Occurrence Book (OB) Number at Bungoma South Police Station by unspecified complainant, before carrying our proper investigations in the alleged serious criminal offense of obtaining money by false pretense, whose standard of proof must be beyond any reasonable doubt.
That perhaps, the only probable explanation of the delay and back and forth process as well as accusations and counter accusations among themselves is could be rent credence to his theory of stage-managed framing and unprofessional and unprocedural investigation characterized by compromise, manipulation, conspiracy between the 7th to 13th Respondents in conspiracy with the 2nd to 6th Respondents to harass and intimidate and humiliate and cause pecuniary embarrassment of the Exparte Applicant herein and discredit his human rights defense work and watchdog role as well as disrepute the Exparte Applicant in the eyes of right thinking citizens of Kenya and residents of Bungoma and the general public.
The Exparte Applicant wish to inform this Honourable Court that he is in currently living in a state of fear and paranoia of being summoned, re-arrested, intimidated, harassed and humiliated by the 3rd to 6th Respondents over then aforementioned offense. He is in constant fear of being ambushed with police/court summons, warrant of arrest, re-arrested and prosecuted by the 2rd, 3rd, 4th, 5th and 6th respondents before the 1st respondent at any time in relation to the aforementioned trumpeted criminal charges.
The Exparte Applicant avers that his life is in danger and is afraid of being hijacked and harmed by the 7th to 13th Respondents and/or their hired goons, agents and allies if the offensive behaviour and utterances made by them in the precincts of Bungoma South Police and at Members Club and other public places on 28th April 2023 and other dates are anything to go by. They have on several occasions visited Bungoma South Police Station demanding explanations as to why the suspect (Exparte Applicant herein) has not been re-arrested and arraigned and prosecuted by the 2nd to 6th Respondents before the Chief Magistrates Court at Bungoma (1st Respondent herein) for the alleged offense of obtaining money by false pretence.
The Exparte Applicant is apprehensive that unless this Honourable Court urgently grants leave and conservatory orders that bars the 2nd to 6th Respondents from continuing with their unconstitutional and unlawful criminal investigations, they are hell bent, reckless and determined to execute their malicious and unprocedural schemes of summoning, phone tracking, re-arresting, intimidating, harassing, humiliating and prosecuting him before the 1st Respondent, any time of their convenience, just like they did to him ( the Exparte Applicant herein) previously between the 6th and 10th of August 2020 as highlighted in the Judicial Review Judgement in judicial Review Application No. of 2020 in favour of the Exparte Applicant in a similar Case by Justice Jairus Ngaah on 10th June 2022.
The Exparte Applicant is further apprehensive that up to date, the 2nd to 6th respondents in collusion with the 7th to 13th Respondents have not stopped their witch hunting mission and fishing expedition against the Exparte Applicant. They are likely to engage in extra judicial means and activities by abusing their offices, misusing powers, authority, means and influence to continue violating his constitutional rights and fundamental freedoms, enshrined in the Bill of Rights-Chapter 4 of the Constitution of Kenya, 2010, in disguise of investigation and performing their duties and responsibilities, in the hands of the 3rd to 6th respondents and/or their representatives as highlighted elsewhere in this instant Application for Leave.
The Exparte Applicant’s is apprehensive that his personal security and that of his property as stipulated in Article 29 of the Constitution of Kenya 2010 are not guaranteed in the presence of malicious, mischievous, jealousy, vindictive and antagonistic of the 2nd to 13th Respondents herein and this is what has necessitated the Application for Leave to file a Substantive Judicial Review Application with regard to the alleged criminal offense of obtaining money by false pretense as farmed by the 2nd to 13th
That the genesis and cause of the continued onslaught by the aforementioned Respondents is attributed to his hard and uncompromising stance and “watch dog role” in the fight against all forms of social injustice, maladministration and bad governance in Bungoma County and the Republic of Kenya in his personal capacity as a Human Rights Defender and an enthusiast of Good Governance, rule of law, due process, transparency and accountability.
The framing, conspiracy and intimidation scheme between the said perpetrators of illegal recruitment and impunity in the County Public Service Board and the CCIO, DCIO, OCS and IO and their coached witnesses begun long time ago, after the Applicant filing a written/formal complaint and petition to various investigating and law enforcement agencies mentioned earlier, including the Public Service Commission of Kenya (PSCK), Ethics and Anti-Corruption Commission (EACC), the County Assembly, the Governor and other duty bearers at the County Government of Bungoma and in the National Government.
The Exparte Applicant is apprehensive that unless this Honourable Court grants the sought leave to file the substantive Notice of Motion and the conservatory orders prayed for, restraining the said respondents from intimidating, humiliating, embarrassing, re-arresting and prosecuting him in any court of law in the Republic of Kenya; his constitutional rights and fundamental rights, especially with regard to right to access information, freedom of expression, freedom of movement, freedom of association, security of person and property may be irreversibly violated and his pending substantive Application for Judicial Review will be rendered merely to be academic and nugatory.
The Exparte Applicant avers that unless the Honourable Court urgently intervenes in matter, he may continue to be subjected to unfettered harassment by the respondents through a fruitless criminal allegations, arrests and prosecutions that are intended to punish, inconvenience, prejudice, ridicule, embarrass and frustrate him and discourage him from pursuing the suits against illegal and irregular recruitment of village administrators and casual workers by the 7th and 8th Respondents herein as well as over-sighting public institutions, in the pursuit of public interest and social justice in Bungoma County and the Republic of Kenya.
The Exparte Applicant affirms that this Honourable Court has the jurisdiction and authority to urgently hear and determine this instant Application and the envisaged substantive Judicial Review Application, regarding the violation of his constitutional and fundamental rights.
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