Searches in the Kenyan Criminal Justice System

1. 1. THE BASICS
2. SEARCHES WITH A WARRANT
3. SEARCHES WITHOUT A WARRANT

2. The Basics
 Look at Article 31 (a) of the Constitution. It
specifically provides that every individual
has the right not to have their person, home
or property searched.
 However, as per article 24 this right can be
limited to the extent that the limitation is
reasonable and justifiable in an open and
democratic society.

3.  In Chic Fashions Ltd. V. Jones Lord
Denning held, “No man’s house is to be
used as a hiding place for thieves or
receptacle for stolen goods. If there is
reasonable ground to believe that there
are stolen goods in the house,
information can be laid before a
magistrate on oath and the magistrate
can then issue a warrant authorizing a
constable to enter the house and seize

4.  One of the most important tools in the
prevention, investigation and detection of a
crime, and the collection and gathering of
evidence is a search warrant.
 A search warrant is an order in writing,
issued by a judge or judicial officer,
commanding a law enforcement officer to
search a specified person or premises for
specified property and to bring it before the
judicial authority named in the warrant.

5. SEARCHES WITH A WARRANT
 Look at section 118 of the CPC.
 Also, look at section 19 of the Police Act.
 What are the requirements that must be
met before a warrant can be issued?
According to section 19 a lawful complaint is
required while under section 118 there must
be proof on oath that for the purposes of
conducting an investigation or obtaining
evidence it is necessary to issue the warrant.

6. Contents and duration of a search
warrant
 Look at section 102 of the CPC. Some of the
contents include:
i. Signature of the judge or magistrate as
well as the seal of the court
ii. The offence with which the person, place
or thing being searched is related.
iii. Name and description of the person, place
or thing to be searched.

7. iv. An order directed to the executor of the
warrant to seize the products and produce
them in the court issuing the warrant or
any other court with jurisdiction.
 According to section 102(3) a warrant shall
remain in force until it is executed or
cancelled by the court issuing it.

8. Execution of a search warrant
 What happens when there is no police
officer immediately available? Can the
warrant be executed by some third party?
Look at section 104, 105 7 106 of the CPC.
 Is there a restriction on the time and/or
place during which a search warrant can be
executed? Look at section 109 and 119 of the
CPC.

9.  Once issued with a search warrant the
executor can compel any owner or resident
of a building to allow him access to conduct
the search. However, he must produce the
search warrant to validate his entry. Look at
section 120 of the CPC.

10. Extension of a warrant
 Note that where a police officer enters a house
pursuant to a warrant he may not only seize
goods in respect of the warrant but also any
other goods which he believes on reasonable
grounds to be material evidence.
 Additionally, searches on a person can only be
justified where there is reasonable suspicion
that the person has concealed an article for
which search should be made. Look at section
127 of the CPC.

11. Search warrants and Privileged
material
 Can an accused person (or his spouse, or
attorney) be compelled to submit privileged
documents pursuant to a warrant validly
issued under section 118 of the CPC?
 What if the documents are in the possession
of a third party? Can the third party claim
privilege and refuse to submit the
documents on the ground of privilege?

12.  In which situations will the privilege be
defeated?
 Look at sections 127, 130 and 134 of the
Evidence Act.
 In the above mentioned cases, an officer
with a valid search warrant can be able to
carry out a search of what would otherwise
be privileged documents.

13. What happens to articles seized
pursuant to a search?
 Look at section 121 of the CPC.
 Property seized pursuant to a search may
and will be detained until the conclusion of
the investigation, or any trials and/or
appeals.
 Once this is done the thing may be restored
to the person from whom it was taken or
otherwise disposed of.

14.  In Ghani v. Jones the court identified
guidelines to justify the taking and retaining of
an article pursuant to a search warrant:
i. Reasonable ground to believe that a serious
crime has been (or is about to be) committed.
ii. Reasonable ground to believe that the article
taken is a fruit of crime, instrument by which
crime was committed or material evidence to
prove the commission of a crime.
iii. Reasonable ground to believe that the person
in possession of it is involved in the crime.

15. SEARCHES WITHOUT A WARRANT
 Can Police officers carry out searches of
premises or persons without a warrant?
What is the risk of doing so?
 Look at section 26 and 22 of the CPC.
 Issues of illegally obtained evidence may
arise in these cases, and the court may
exercise its discretion to exclude evidence
obtained without a valid search warrant.

16. Reasonable suspicion
 In these cases the prosecution must satisfy the
court that there was reasonable suspicion
BEFORE the person, vehicle e.t.c. was stopped
and searched. Suspicion must precede the
stopping. Suspicion arising after stopping may
render the police action illegal.
 The decision must be based on objective
grounds such as the time, place and behavior of
the suspect and information from other
witnesses.

17.  Personal factors alone (such as a person’s age,
color, previous convictions or dress), or
stereotypes of the kinds of people likely to be
in possession of certain kinds of articles
cannot justify a decision to search.
 If a police officer searches a person without
their consent or reasonable grounds for
suspicion the search is unlawful even if it
reveals items of the kind for which the search
was made.

18. Consensual searches
 In what circumstances would an individual
consent to a search when the police do not
have a warrant?
 Stopping and searching people with their
consent has always been lawful at common
law. Consensual searches are however
problematic because of the power
imbalance between the police and ordinary
citizens.

19.  There is a risk that occupiers may be
improperly pressured to give consent or may
not realize that they have nay right to refuse.
 Routine searches at such places as entrances
to malls or to airports may be justified on
this ground as a precondition to entry.

20. Delay
 A search without warrant is also allowed in
situations where the search requires a
warrant but any delay would defeat the
purpose of the warrant since evidence would
have been destroyed or relocated elsewhere.
 An example would be a situation where
there is reason to believe that a particular
person or chattel poses an imminent danger
to the public.

21. Search of arrested persons
 As per section 25 of the CPC a person
arrested with or without warrant may be
searched by the responsible officer. All
articles other than necessary wearing
apparel found on the arrested person must
be placed in safe custody.
 In this case the search of the arrested person
is conducted without a warrant specifically
to that effect.

22.  Look at the case of The Standard
Newspapers Ltd and others v. The Attorney
General and others (Petition 113 of 2006) for
an interesting discussion on search and seizure
Laws in Kenya.
 Additionally, look at the case of Alex Mautia v.
R (Criminal appeal no. 42 of 2012).
 Finally, look at the case of Abubakar Sharriff
Abubakar v. AG (Constitutional petition no.
82 of 2012)