Former Cabinet Secretary for Interior Fred Matiang’i has gotten a sigh of reprieve after the High Court barred police from arresting him pending investigations into abuse of office allegations.
Justice Kanyi Kimondo of the High Court granted an anticipatory bail of Ksh200,000 to Matiang’i but directed six national government institutions including the Director of Public Prosecution (DPP), Directorate of Criminal Investigations (DCI), Inspector General of Police, National Police Service, Ethics and Anti-Corruption Commission (EACC), Independent Police Oversight Authority and National Police Service Commission are at liberty to investigate him of any criminal conduct.
"Pending the mention, and in the interest of justice, and, for reasons deposed in the affidavit of Fred Okengo Matiang'i sworn on February 9, 2023, Matiang'i be and I'd hereby admitted to anticipatory bail by way of a personal bond of Ksh200,000," Judge Kimondo stated.
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"For the avoidance of doubt, the first to sixth respondents are at liberty to investigate any criminal conduct by Matiang'i. However, they shall not arrest or detain him," the judge added.
The court further ordered Matiang'i to serve the six government institutions with his pleadings before the mention of the case on February 23, 2023.
The orders came after Matiang’i on Thursday morning petitioned the High Court seeking anticipatory bail after police allegedly raided his house on Wednesday night.
In an application filed under the certificate of urgency by Matiang'i lawyers led by Danstan Omari and Sam Nyaberi urged the court to grant him bail saying he is fearing police may execute an arbitrary arrest against him and prosecute him for offences of abuse by the anti-graft body which he terms as politically instigated by the current regime.
Omari said the former CS is being targeted after his remarks at the late former Education CS George Magoha's home.
The lawyer adds that they believe that the timing of the arrest is designed to ensure that he does not attend the funeral and burial service of Magoha in Gem, Siaya County.
"That his (Matiang'i's) woes got worse when he gave a speech at the home of the late Prof Magoha where he shared the lessons on public service that he had learnt from the deceased. His security was withdrawn the next day and the impending arrest is part of the scheme to harass and silence me forever," Omari says.
Matiang'i contends that the National Police Service has already demonstrated malicious intent and a clear disregard for the rule of law by abusing due process as evidenced by the reduction and withdrawal of the security officers assigned to him, thereby exposing him to harm despite the sensitive nature of his last post as cabinet secretary.
"Pending the hearing and determination of this application inter-partes Dr Fred Mating'i be admitted to anticipatory bail or bond at such reasonable terms and conditions that the Court may deem just and fit in the circumstance," Omari states in the court papers.
The former CS is also seeking orders to stop the six national government institutions including the Director of Public Prosecution (DPP), Directorate of Criminal Investigations (DCI), Inspector General of Police, National Police Service, Ethics and Anti-Corruption Commission(EACC), Independent Police Oversight Authority and National Police Service Commission from arresting and prosecution with any offence in a court of law.
"The 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 Mating'i’s participation in burial arrangements of the late Prof. George Albert Omore Magoha," Omari seeks.
Further, Matiang'i is seeking conservatory order restraining the government from effecting arbitrary arresting, charging, harassing or otherwise however interfering with him without conducting investigations and according to him an opportunity to be heard and even issuing him with summons for him to appear at any offices to record statement (s) if need be.
The CS has lodged the suit on grounds that he received credible information from officers of the Kenya Police that they are under express instructions to arbitrarily capture and arrest him with a view of arranging him in court for ulterior political motives.
" I was informed that the scheme to have me arrested was formulated on January 30, 2023, at the sidelines of the 16th Annual General Meeting and Africa Prosecutors’ Association (APA) Conference held at Mombasa. True to their words, on the afternoon of February 8, 2023, my family home in Karen was raided, surrounded and cordoned off by police officers who were seeking to arrest me. The police officers barricaded the entry to my house and only retreated after the media and my Advocates arrived and the story of my impending arrest went viral on social media platforms," the court papers state.
Lawyer Omari further challenges the arrest of Matiangi's imminent arrest terming the same as a clear breach of due process as his client has never been summoned to appear before any police station or investigative agency and no arrest warrants had been issued against him.
"I am therefore at a loss as to why the police officers are seeking to arrest me. I was reliably informed that the Police Ward Commander for Karen Police station had been given express instructions to provide support to the team that had been sent to arrest me.
Through a confidential source, I was reliably informed that the Ethics and Anti-Corruption Commission had also received instructions between February 6 and 9 2023 to open a criminal file and charge me with trumped-up charges of abuse of office," Matiang'i states in an affidavit filed in court.
The former CS adds that as a result of the state's unlawful actions, he is currently living under a cloud of uncertainty as to his liberty owing to the threat of his arrest.
"I firmly believe that the belated efforts by the Respondents to harass, intimidate and/or embarrass me is connected with the dutiful execution of my professional mandate in the previous regime of government and/or my association with people who are seen as ‘the enemies’ of the current regime," Matiang'i states in his court paper.
"The powers of arrest by the Respondents and the Kenya Police are being abused and misused to harass, intimidate and oppress Matiang'i and his former cabinet colleagues and the former president; and to achieve extraneous purposes unconnected with upholding the Law," Omari states in the court papers.
He says he is a law-abiding citizen, ready and willing to submit himself to a just and fair legal process in which his fundamental rights and freedoms are respected and protected.
