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.
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.
“The law is richer or poorer, you might say. The magistrate court is based in Kiambu with a perception that he might be known to the wheeler-dealers of the county. I thought this was an exclusive remit of the superior courts (High Court, Court of Appeal or Supreme Court),” lawyer Omwanza Ombati said on social media, drawing a heated debate over the comment.
Lawyer Nelson Havi defended the magistrate saying that although there is no express enabling law for anticipatory bail, there was sufficient grounds for him to give such orders.
According to Mr Havi, the right to anticipatory bail was affirmed by Justices Kaplana Rawal and Luka Kimaru in the case of Samuel Muciri Njuguna verses the Republic of Kenya in 2004 in which they held that the right was under Section 84(1) of the Constitution and Chapter 5 of the Constitution of Kenya which has since been repealed.
He further said that the courts pronounced themselves in 2016 in the case between Susan Mbinya Musyoka versus the Inspector General of Police with Mr Havi arguing that magistrates are empowered by law to issue bail, including anticipatory ones.
Friends and colleagues of Magistrate Khaemba describe him as an official who is not afraid to push things to the farthest limit.
Early this year, the magistrate ruled that drinking under the influence of alcohol in itself is not an offence.
He made the ruling following a case where a driver, Michael Ngobe Mugo, was charged with the offence of drink driving.
During the hearing, a police officer testified that the accused overpowered him and two of his colleagues and as a result they were unable to arrest him.
The witty magistrate is also a darling of fellow magistrates and judges.
In 2015, he was re-elected as the secretary general of the Kenya Magistrates and Judges Association without having campaigned for the seat.
“I am truly humbled. They elected me while on a wheelchair and I never campaigned because of my long confinement at Nairobi Hospital,” he wrote in Facebook after his re-election.