THE CONCEPT OF ARRESTS IN KENYA

Sec 21 and 24 of the Criminal Procedure Code sheds some light on what an arrest is as there is
no clear definition of arrest in Criminal Procedure Code. Sec 21 provides that in making an
arrest, the arresting officer shall actually touch or confine body of a person being arrested unless
he submits to custody by either word of mouth or conduct. Sec 24 states the arrested person must
not be subjected to more restraint than it is necessary to prevent his escape.
Another requirement of arrest is that a person should be informed of reasons of his arrest so as to
know the nature of the offence and its not necessary to inform him of reasons for his arrest.
Pursuant to a warrant of arrest a person may enter a place where the person to be arrested is
hiding and allow that occupier of the house to allow him free ingres and reasonable facilities.
Where ingres is not possible a police officer is at liberty to break open the door so long as he has
a warrant. Even without a warrant he can break so as to prempt escape of the person that can be
delayed by obtainment of a warrant. Also the arresting officer may break out of any house or
place in order to liberate himself. The breaking action is only valid if the person effecting the
arrest has made notification of his arrest, has stated his purpose, has made demands for
admittance and has been denied or unable to gain admittance.
Person effecting arrest is at liberty to search a person being arrested and place into safe custody
all articles other than necessary wearing apparel they have on them. Sec 27 of the C.P.C provides
when a police officer needs to search a woman he has to ensure it is done by another woman with
strict regards to decency. Where a search uncovers offensive weapons by person being arrested
police shall deliver them to court and also produce them in a court of law
Arrest are of 2 kinds
1. Arrest without a warrant
2. Arrest with a warrant

Procedures in criminal law in Kenya by Momanyi Bwomwonga

Criminal procedure in Kenya by P.L.O Lumumba
Essentials of criminal procedure in Kenya by Patrick Kiage
The Constitution Of Kenya 2010

1) ARREST WITH A WARRANT

Sec 100 of the C.P.C states that if summons have been issued directed to a person
against whom an accusation has been laid may before or after the hearing issue a
warrant of arrest against the person summoned. Warrants are only issued once a
complaint has been lodged against a person. Courts may also issue a warrant of
arrest for a person who fails to appear when required even for the mention of his
case
HAKIM ALSAFA V REPUBLIC

An arrest warrant is a written order issued by a magistrate for the apprehension of a

person who fails to appear in a court at an appointed time and in relation to offence
committed by him or for witnesses who fail to appear in court to give evidence. Sec
102 provides that warrant of arrest must be in writing, signed by the magistrate and
bearing the seal of the court. It must be stated briefly the charges against the
suspected and describe his detail. It shall order person to whom it is directed to
apprehend person whom it is issued against and bring him to court. Once the
warrant of arrest is issued the warrant remains into force until it is executed or
cancelled by the court that issued it
Under the C.P.C any irregularities or defects in a warrant be they in form of
substance as well as variance between it and written compliant or between the
warrant, the complaint and prosecution evidence at the trial do not vitiate or affect
validity of any proceedings at or subsequent to hearing of the case. Endorsement in
inter alia case of JAMES MAINA NJUGUNA V REPUBLIC
If it appears variance in such that the accused has been thereby deceived or misled
it merely adjourns the hearing of the case to a future date and will not nullify or stop
the proceeding. On the question of whether an arrest warrant can be used more
than once the criminal procedure code is silent on this matter but the English
position from ancient time is expressed in DICKENSON V BROWN where the court of
Kings bench doubted the legality of second arrest of plaintiff upon warrant that had
Procedures in criminal law in Kenya by Momanyi Bwomwonga
Criminal procedure in Kenya by P.L.O Lumumba
Essentials of criminal procedure in Kenya by Patrick Kiage
The Constitution Of Kenya 2010

already been used to effect his arrest. Was held that it would amount to abuse of
instrumentality of arrest warrant

2) ARREST WITHOUT A WARRANT

1) ARREST BY A POLICE OFFICER

Sec 29 provides for instances where an arrest may be lawfully effected without a
court order. They include

Commits or is suspected to have committed a cognizable offences

namely offences that does not need a warrant to effect an arrest
R V HUSSEIN
Commit a breach of peace in the presence of police officer
Obstruct a police officer from execution of his duty
Escapes or attempts to escape from lawful custody
Are in possession of anything suspected to be stolen or having
reasonably committed an offence in respect to that thing
Are reasonably believed to be deserters from the armed forces
Are reasonably believed to be subject of a warrant of arrest

Sec 32 provides that even if a person has committed a non-cognizable offence he

may be arrested if he fails to disclose his name and other particulars or he gives
false information
2) ARREST BY MAGISTRATE
Under sec 38 of the C.P.C a magistrate may personally arrest or cause the arrest of
any person who commits an offence in his presence in local limits of his jurisdiction.
Thereafter the magistrate may release the offender on bail or commit him to
custody
In effecting arrest magistrates acts as a judicial officer and not in ministerial
capacity and his actions are protected by judicial immunity and cannot be subjected
to criminal or civil proceedings
KIONGWAKI V R

Procedures in criminal law in Kenya by Momanyi Bwomwonga

Criminal procedure in Kenya by P.L.O Lumumba
Essentials of criminal procedure in Kenya by Patrick Kiage
The Constitution Of Kenya 2010

Sec 42 imposes obligation on everyone to assist a police officer or magistrate in

execution of his duty

3) ARREST BY A PRIVATE CITIZEN

Sec 34(1) of C.P.C empowers private person to arrest any person who in his view
commits a cognizable offence or whom he reasonably suspects of having committed
a felony and the power to execute arrest must be exercised reasonably and without
the use of excessive force. Any arrested person has his rights guaranteed in the
Constitution of Kenya under article 49. This rights include

To be informed promptly in the language that he understand the

reason for his arrest, the right to remain silent and the consequences
of not remaining silent
To remain silent
To communicate with an advocate and other person whose assistance
is necessary
Not to be compelled to make any confession that could be used as
evidence against the person
To be held separately from person who are serving sentences
To be brought to court within 24 hours after arrest
At the first court appearance be charged or informed of the reason for
detention continuing or be released
To be released on bail pending the charge or trial unless there are
compelling reasons not to be released
A person shall not be remanded in custody for an offence if the offence
is punishable by a fine or by imprisonment for not more than 6 months

Once this rights have been infringed one can institute a case in the high court for
violation of the fundamental rights and freedoms as enshrined in the constitution of
Kenya

Procedures in criminal law in Kenya by Momanyi Bwomwonga

Criminal procedure in Kenya by P.L.O Lumumba
Essentials of criminal procedure in Kenya by Patrick Kiage
The Constitution Of Kenya 2010