Arrests in the Kenyan Criminal Justice System

1. 1. THE BASICS
2. ARRESTS WITH A WARRANT
3. ARRESTS WITHOUT A WARRANT
4. FORM, CONTENTS AND DURATION OF WARRANTS
5. CONSTITUTIONAL ISSUES RAISED BY WARRANTS

2. The Basics
Which Constitutional right is
potentially infringed by arrests?
Look at article 29 of the Constitution.
Article 39 could potentially be
implicated as well.
An arrest occurs when a person
restrains the freedom of movement of
another person.

3. As per section 21 of the CPC is there a
limitation on the amount of force
necessary to effect a lawful arrest?
What determines whether the force used
was reasonable or not? Look at section 24
of the CPC.
Can an arrest be effected without any body
contact between the police officer and the
suspect?

4. As per section 22 of the CPC the person
effecting the arrest (with or without a
warrant) has the authority to search
any premises where there is reason to
believe that the person to be arrested is
therein.

5. When a person is arrested he may
thereafter be searched and all articles
found on him with the exception of
necessary wearing apparel shall be placed
in safe custody. Look at section 25 of the
CPC.
As per section 28 this includes all offensive
weapons found on the person of the
arrested person.

6. Arrest Without a Warrant: By a
police officer
Section 29 of the CPC lists situations
where an arrest may be validly executed
without a warrant.
What is a cognizable offence? These are
offenses for which a police officer may
effect an arrest without a warrant. For
example, aiding a prisoner of war to
escape, riot, offences relating to judicial
proceedings, rape, indecent assault etc..

7. Is there any situation where a person
who has committed a non-cognizable
offense can be arrested without a
warrant? Look at section 32 of the CPC.
As per section 33 of the CPC a person
arrested without a warrant must be
brought before the relevant magistrate
without unnecessary delay.

8. Arrest without a warrant: By a
private individual
 In what situations may a private person arrest
another? Look at section 34 of the CPC. The
section vests authority to arrest in private
persons where:
i. A cognizable offense has been committed
ii. Where a felony has been committed
iii. The owner of property may arrest any
person who commits an offense resulting
in injury to his property.

9. A person arrested by a private individual
without a warrant must be handed over
to a police officer without
unreasonable delay. The Police may then
rearrest the person or release him if there
is no sufficient reason to believe that he
has committed an offence. Look at section
35 of the CPC.

10. If the police choose to rearrest the
individual section 36 of the CPC allows
them to release the person upon execution
of a bond if the offense in question is not
of a serious nature.
As per section 40, police are authorized to
arrest (without a warrant) any person who
escapes from lawful custody.

11.  If a private individual uses unreasonable
force in arresting a suspect and in the
process causes the suspect’s death, he is
liable to be prosecuted. In Uganda v.
Muherwa a private person used a weapon to
incapacitate the deceased who was
suspected to be a thief in the course of
which he died. As a result the person was
prosecuted and convicted of manslaughter.

12.  In Beard and another v. R the appellants, acting in
their private capacity as private individuals
arrested the complainant and tied him up
although he had made no attempt to escape. They
delayed handing him over to the police as a result
of which the complainant suffered injuries.
consequently the appellants were prosecuted on
charges of assault and wrongful confinement and
convicted for using unnecessary force.

13. Arrest without a warrant: By a
magistrate
Section 38 and 39 of the CPC provide
that where an offence is committed in
the presence of a magistrate he may
himself arrest the offender or order any
person to arrest the offender.

14. Apprehension Reports
As per section 37 of the CPC officers in
charge of police stations are required to
furnish a report of all persons arrested
without a warrant within the limits of their
respective stations to the nearest
magistrate. These reports are intended to
curb arbitrary arrests and ensure that
citizens are not deprived of their liberty
other than with just cause.

15. Arrests with a Warrant
 A warrant of arrest is a written order issued
by a magistrate for the apprehension of a
person who fails to appear in court at an
appointed time and in relation to an offense
committed by him. Look at sections 100 and
101 of the CPC. Note that no warrant shall be
issued unless a complaint has been made
under oath.

16.  As per section 104 a warrant may be directed to
a particular police officer, generally to all police
officers in the area or to any persons where no
police officer is immediately available.
 Section 105 provides that a warrant of arrest
may be directed to a landholder where an
escaped convict or a person who has
committed a cognizable offense enters on his
land.

17. Where a person is being arrested
pursuant to a warrant, it is mandatory
that the person executing the warrant
notify the person of the substance of
the warrant and if so required show
him the warrant. Look at section 107 of
the CPC.

18. Form, Contents and Duration of a
warrant
 Look at section 102 of the CPC. What are
some of the requirements that must be met
for a warrant to be formally valid?
i. Signature of the magistrate issuing it
ii. Seal of the court
iii. Name of the person (s) to whom it is
directed
iv. Summary of the offense

19. v. Name or description of the person to be
apprehended
vi. It must order the person or persons to
whom it is directed to apprehend the
person against whom it is issued and to
bring him before the court.
 A warrant remains in force until it is
executed or until it is cancelled by the court
which issued it.

20.  Section 103 allows the court issuing the
warrant to include on the warrant an
endorsement allowing the person to be
released from custody upon executing a
bond with sufficient sureties. This is only
possible for offenses other than murder,
treason or rape.

21.  The endorsement shall state:
i. The number of sureties
ii. The amount in which they and the person
for whose arrest the warrant is issued are
to be respectively bound
iii. The time at which he is to attend before
the court

22.  Where the court issuing the warrant lacks or
exceeds its jurisdiction the defect can be
cured by taking it for endorsement to a
magistrate within the local limits of whose
jurisdiction it is to be executed. Look at
sections 110, 111 and 112 of the CPC.

23. Irregularities in warrants
 What happens when there is an irregularity
in the warrant? Will this affect the validity if
the proceedings?
 Look at section 113 of the CPC. Where the
court is satisfied that the accused has been
deceived or otherwise misled it may adjourn
the hearing of the case to some future date.

24. Constitutional issues raised by
arrests
 What are the rights of an arrested person as
per article 49 of the Constitution?
 The police practice of indiscriminate arrests
and confinement of all persons who may be
connected, however remotely, with a
criminal investigation has been strongly
deprecated by the courts.

25.  The most common issue raised in this
regard is situations where an accused person
is detained for longer than the expected
constitutional period without reasonable
justification.
 What remedy is suitable in these cases? an
order for compensation or an acquittal of
the accused?

26.  Who should bear the burden of explaining the
delay? Is it the prosecution or the accused
person?
 In Murunga v. R the court stated, “Under
section 72(3) of the Constitution, the
burden to explain the delay is on the
prosecution, and we reject any proposition
that the burden can only be discharged if
the person accused raises a complaint.”

27.  In Albanus Mutua v. R the court identified the
following examples of what might amount to an
acceptable explanation for the delay:
i. Accused person falls ill upon arrest and is
admitted and kept in hospital in excess of the
period allowed
ii. Accused person is arrested on a Friday evening and
has to wait till Monday to be brought to court
iii. The court house was far from the police station
iv. The station vehicle broke down or had no fuel

28.  Some courts have come out strongly in favor of
declaring the prosecution a nullity and
releasing accused persons where the delay
cannot be satisfactorily explained by the
prosecution. For example, see the case of Ann
Njogu and 5 others v. Republic.
 However, this is a position that has not found
traction with most courts preferring giving of
compensation in such cases rather than
allowing the accused to walk away scot free.

29.  In Republic v. Amos Karuga Karatu the
court held that even if it was found that the
extra judicial detention was unlawful, they
would have “considered an acquittal or
discharge was disproportionate,
inappropriate and draconian as a
remedy since public security would be
compromised.”

30.  Look at the following cases:
i. Julius Kamau Mbugua v. Republic (2010) Eklr
ii. Hussein Khalid and 16 others v. Attorney
General and 2 others (petition no. 324 of 2013).
iii. Republic v. Dickson Mwangi Munene and
Alexander Chepkonga Francis (criminal case 11
of 2009)
iv. Lucas Omoto Wamari v. Attorney General and
DPP (petition no. 294 0f 2012)