ARRESTS

1. Introduction
Criminal cases are initiated by lodging a complaint. A complaint may be lodged with the
police or magistrate. The conventional way is by lodging a complaint at the police station,
which is recorded in the Occurrence Book. Where the information in the OB coupled with the
statement from the complainant discloses an offence, the police may proceed to apprehend
and detain the suspect. This is to ensure that a person suspected to have committed a crime
does not evade the criminal justice process. The power to make arrest is, however, not the
preserve of the police as other persons including citizens are empowered to make arrest in
certain circumstances.

Arrest consists of the actual seizure or touching of a person’s body with a view to detent
him/her. It is a forcible restraint on a person’s liberty either on the basis of a warrant or power
donated by law. An arrest deprives a person the right to personal liberty during the entire
period of confinement. Section 2 of the National Police Service Act defines arrest to mean the
act of apprehending a person for suspected commission of an offence or by the action of legal authority.

1.1. Rights of Arrested Persons

The rights of an arrested person are provided under the Article 49 of the Constitution. They
include:
a) to be informed promptly, in a language that the person understands, of-
i. the reason for the arrest;
ii. the right to remain silent; and
iii. the consequences of not remaining silent;1
b) to remain silent;
c) to communicate with an advocate, and other persons whose assistance is necessary;

1
These category of rights of arrested person are also referred to as Miranda rights following the case Miranda v Arizona 384 US 436
(1966).

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 d) not to be compelled to make any confession or admission that could be used in evidence
against the person;
e) to held separately from persons who are serving a sentence;
f) to be brought before a court as soon as reasonably possible, but not later than-
i. twenty-four hours after being arrested; or
ii. if the twenty-four hours ends outside ordinary court hours, or on a day that is
not an ordinary court day, the end of the next court day;
g) at the first court appearance, to be charged or informed of the reason for the detention
continuing, or to be released; and
h) to be released on bond or bail, on reasonable conditions, pending a charge or trial,
unless there are compelling reasons not to be released.

These category of rights of arrested person are also referred to as Miranda rights following the
case Miranda v Arizona 384 US 436 (1966) which enshrined the rights of arrested person in the
United State laws. The phrase brought before court as soon as reasonably possible requires the
court to take into account the circumstances in each case.

The continued detention before charging an accused must be sanctioned by the court and any
extension must be sought before the expiry of the twenty-four-hour period as provided in
Section 36A (8) of the Criminal Procedure Code. Milen Halefom Mezgebo v Attorney General & 2
Others High Court at Nairobi Petition 205 of 2011.

The Phrase brought before the court as soon as reasonably possible also implies that the time
limit for arraignment and continued detention are outer limits and the prosecution has a duty
to satisfy these requirements at the earliest possible time. In Lucas Omoto Wamari v Attorney
General & Another High Court at Nairobi Petition No. 294 of 2012, the court held that under the
former Constitution, the prosecution had a duty to take the arrested person to court as soon as
was reasonably practicable and not at the last possible moment. It is presumed that the
position still holds under the 2010 Constitution.

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A violation of the rights of the arrested person as enshrined in the Constitution entitles the
accused person to seek a remedy, including compensation as provided under Articles 22(1),
23(3)(e) of the Constitution. However, such violation does not automatically entitle the
accused to an acquittal or discharge.

In Fappyton Mutuku Ngui v R Court of Appeal at Nairobi Criminal Appeal No. 32 of 2013, the court
in dismissing the appeal, stated that the violation of rights of arrested person did not
automatically entitle the accused to an acquittal or discharge. Instead, where it is established
that there was a violation, a remedy in damages may be sought. Delaying an accused’s
appearance before court may, however, merit dismissal such as when the delay resulted in the
violation of other constitutional rights or otherwise inhibited an accused’s ability to present a
defence.

1.2. Detention beyond Twenty-four Hours

Section 36A of the Criminal Procedure Code and Section 33 of the Prevention of Terrorism
Act allow police officers to detain suspects beyond the twenty-four-hour limit but only with
leave of court. To obtain leave, police officers must take the suspect to court and make an
application for an extension of time by affidavit, which must demonstrate that there are
reasonable grounds for the continual detention of the suspect. If the court makes an order for
the suspect to remain in custody, the period must not extend beyond thirty days (S. 36A (8),
CPC; s 33(9), Prevention of Terrorism Act). With respect to terrorism cases, the total period of
detention must not exceed three hundred and sixty days (S. 33(10), Prevention of Terrorism
Act). Under CPC, the total period must not exceed ninety days (S. 36A (10), C.P.C).

1.3. Provisions on Conducting an arrest

The Constitution under article 49(1) provides that an arrested person has a right to be
informed promptly, in a language that the person understands of the reason for the arrest, the
right to remain silent, and the consequences of not remaining silent.

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An arrest may be effected by touching or confining the body of the person being arrested
unless such a person voluntarily submits to custody by word or action. In case of forcible
resistance, all means necessary may be used to effect arrest.
However, any force applied to make the arrest or counter resistance must be reasonable.2 The
person arrested shall not be subjected to more restraint than is necessary to prevent his/her
escape.3

A person effecting a warrant of arrest may enter any place where the person to be arrested is
hiding or is reasonably suspected to have entered and concealed themselves and demand that
the occupier or person in charge of that place allow him/ her free ingress and reasonable
facilities for the search therein.4 If ingress cannot be obtained, it is lawful for the person
effecting the warrant or in any case in which a warrant may issue but cannot be obtained
without affording the person to be arrested an opportunity to escape, to break open any outer
or inner door or window of a house or place to effect entry into the house or place. This should
be after the person effecting the warrant gives notification of his/her authority and purpose,
and after the demand for admittance is duly made but not granted.5

However, in case of an apartment in the actual occupancy of a woman (not being the person to
be arrested) who, according to custom, does not appear in public, the person or police officer
shall, before entering the apartment, give notice to the woman that she is at liberty to
withdraw, and shall afford her every reasonable facility for withdrawing, and may then break
open the apartment and enter it.

Similarly, the person making the arrest may break out of any house or place in order to
liberate him/herself or any other person who, having lawfully entered for the purpose of
making an arrest, is detained therein.6

2
Section 21 of the Criminal Procedure Act Cap.75 Laws of Kenya.
3
Ibid section 24.
4
Ibid section 22(1).
5
Ibid section 22(2).
6
Ibid section 23.

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Where the person arrested is to be detained, the police officer making the arrest or to whom
the person arrested is handed over, may search that person and place in safe custody all
articles, other than necessary wearing apparel, found upon him. 7 Whenever it is necessary to
cause a woman to be searched, the search shall be made by another woman with strict regard
to decency.8

- SEARCHES
A police officer or a person authorized in writing by the Inspector-General of the National
Police Service may stop, search and detain any aircraft, vessel or vehicle in or upon which
there is reasonable suspicion that anything stolen or unlawfully obtained may be found, or is
reasonable suspected to have used or employed in the commission or to facilitate the
commission of an offence. Such officer or person may also stop, search and detain any person
who may be reasonably suspected of having in his possession or conveying in any manner
anything stolen or unlawfully obtained.9 Further, no person shall be entitled to damages or
compensation for loss or damage suffered by him/her in respect of the detention under this
section of an aircraft, vessel or vehicle.10

Finally, an officer or a person making an arrest may take from the arrested person any
offensive weapons in his/her possession, and shall deliver all weapons so taken to the court or
officer before whom the person making the arrest is required by law to produce the person
arrested.

1.4. Types of Arrests

Arrests may be of two kinds:
1. Arrests without a warrant.
2. Arrests with a warrant.

7
Ibid section 25.
8
Ibid section 27.
9
Ibid section 26.
10
Ibid section 26(2).

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 1.5. Arrests without a Warrant
1.5.1. By a Police Officer
The police have wide powers to enable them detected crimes and apprehend persons
suspected of committing crimes. Under Sections 29, 30 and 32 of the Criminal Procedure
Code a police officer may, without an order from a magistrate and without a warrant, arrest
any person.

Under Section 29 – A police officer can arrest without a warrant any person;

 whom is suspected upon reasonable ground of committing cognizable

offenses(“cognizable offence” is defined under section 2 of the CPC as “an offence for
which a police officer may, in accordance with the First Schedule or under any law for
the time being in force, arrest without warrant)11;
 who commits a breach of the peace in his/her presence;
 who obstructs a police officer while in the execution of his/her duty, or who has
escaped or attempts to escape from lawful custody;
 in whose possession anything is found which may reasonably be suspected to be stolen
property or who may reasonably be suspected of having committed an offence with
reference to that thing;
 who is suspected upon reasonable grounds of being a deserter from the armed forces;
 who is found in a highway, yard or other place during the night and whom is suspected
upon reasonable grounds of having committed or being about to commit a felony;
 who is found in a street or public place during the hours of darkness and whom is
suspected upon reasonable grounds of being there for an illegal or disorderly purpose,
or who is unable to give a satisfactory account of him/herself;

11
The First Schedule to the CPC lists the following as the offences in respect of which an arrest may be effected without a warrant: aiding,
abetting, counseling or procuring the commission of an offence, treason, misprision of treason, treasonable felony, treachery, promoting
warlike undertakings, dissuasion from enlistment, inciting to mutiny, aiding prisoner of war to escape, printing, etc., prohibited
publications, sedition, possessing seditious publication, using or attempting to use printing machine which has been confiscated, printing
or publishing newspaper in contravention of order, presence at and consent to administration of, or taking, oath to commit capital offence,
administration of unlawful oaths to commit capital offence, administering or taking unlawful oaths to commit other offences, compelling
another person to take an oath and piracy.

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  who is suspected upon reasonable grounds of having been concerned in an act
committed out of Kenya which, if committed in Kenya, would have been punishable as
an offence, and for which he/she is liable to be extradited under the Extradition
(Contiguous and Foreign Countries) Act Cap.76 or the Extradition (Commonwealth
Countries) Act Cap. 77;
 having in his/her possession without lawful excuse, the burden of proving which
excuse shall lie on that person, any implement of housebreaking;
 who is a released convict committing a breach of any provision prescribed by section
344 or of any rule made thereunder;
 for whom he/she has reasonable cause to believe a warrant of arrest has been issued.

Under Section 30 of the Criminal Procedure Act, an officer in charge of a police station may
without a warrant arrest or cause to be arrested any person found taking precautions to
conceal his/her presence within the limits of the station under circumstances which afford
reason to believe that he/she is taking those precautions with a view to committing a
cognizable offence.

Under Section 31 of the Criminal Procedure Act, when an officer in charge of a police station
requires a subordinate officer to arrest without a warrant (otherwise than in his presence) any
person who may be lawfully arrested without a warrant under Section 30. He/she shall
deliver to that officer an order in writing specifying the person to be arrested and the offence
or other cause for which the arrest is to be made.

Under Section 32 of the Criminal Procedure Act, when a person who in the presence of a
police officer has committed or has been accused of committing a non-cognizable offence
refuses on the demand of the officer to give his/her name and residence, or gives a name or
residence which the officer has reason to believe to be false, he may be arrested by the officer
in order to ascertain his/her name or residence.

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When one is arrested by police, they are supposed to give their true name and residence. The
police can charge one for giving false information or failing to cooperate.

Under Section 33 of the Criminal Procedure Act, a police officer making an arrest without a
warrant shall, without unnecessary delay and subject to the provisions of this Code as to bail,
take or send the person arrested before a magistrate having jurisdiction in the case or before an
officer in charge of a police station.

Under Section 54(2) of the National Police Service Act, any person who disobeys any lawful
order given by any police officer regulating and controlling traffic or keeping order on and
preventing obstructions in public places or preventing unnecessary obstruction on the
occasions of assemblies, meetings and processions on public roads and streets, or in the
neighborhood of places of worship during the time of worship therein commits an offence.
Such person may be arrested without a warrant unless he/she gives his/her name and
address and satisfies the police officer that he/she will duly answer any summons or other
proceedings which may be taken against him.

Under Section 56(2) of the National Police Service Act, a person who fails to produce a
license, permit, certificate or pass within forty-eight hours when called upon to do so may be
arrested without a warrant, unless he/she gives his/her name and address and otherwise
satisfies the officer that he/she will duly answer any summons or any other proceedings
which may issue or be taken against him or her.

Under Section 57(4) of the National Police Service Act, a person who fails to obey a
reasonable signal given by a police officer in uniform requiring the person to stop any vehicle
or vessel commits an offence and may be may arrested without a warrant, unless the person
gives his/her name and address and otherwise satisfies the police officer that he/she will duly
answer any summons or other proceedings which may issue or be taken against him/her.

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Section 58 of the National Police Service Act stipulates instances when a police officer may
effect arrest without a warrant. Most of these instances are covered under Section 29 of the
Criminal Procedure Code. In addition, a police officer may without a warrant, arrest a person
who is accused by another person of committing an aggravated assault in any case in which
the police officer believes upon reasonable ground that such assault has been committed.

Section 94(2) National Police Service Act stipulates that upon reasonable suspicion that any
police officer has deserted the Service, any police officer may arrest that officer without a
warrant, and shall thereupon take him before a magistrate having jurisdiction in the area in
which such person deserted or was arrested.

Under Section 102(2) of the National Police Act, a police officer may without a warrant arrest
a person the police officer reasonably believes has obtained admission to the service by fraud.

Section 59 of the National Police Service Act provides that an arrest by a police officer,
whether with or without a warrant, shall be subject to the rules contained in the Fifth Schedule
with respect to arrest and detention.

1.5.2. Chiefs
Section 8(2) of the Chiefs’ Authority Act (Cap. 128) provides that any chief or assistant chief
knowing of a design by any person to commit an offence within the local limits of his/her
jurisdiction may, if it appears to him/her that the commission of the offence cannot be
otherwise prevented, arrest or direct the arrest of such person who, without delay, should be
taken to the nearest police station.

1.5.3. Officers of the National Assembly

The Parliamentary Powers and Privileges Act, 2017 under Section 33 bestows upon every
officer of the House of Parliament (defined to include any officer acting within the precincts of
Parliament under the orders of the Speaker), for the purposes of the Act and of the application

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of the provisions of the criminal law, all the powers and privileges of a police officer. In
addition, Section 34 provides that every offence under the Act shall be cognizable to the police.

1.5.4. Arrest by Private Person

Under Section 34(1) of the Criminal Procedure Code a private person may arrest any person
who in his/her view commits a cognizable offence, or whom he reasonably suspects of having
committed a felony.

Under Section 34 (2) of the Criminal Procedure Code, persons found committing an offence
involving injury to property may also be arrested without a warrant by the owner of the
property or his/her servants or persons authorized by him/her.

The private person making an arrest required without unnecessary delay to hand over the
person arrested to a police officer, or in the absence of a police officer to take that person to the
nearest police station as provided for under Section 35(1) of the Criminal Procedure Code.
The police, depending on the circumstances, should re-arrest him or set him free.

Under Section 38 of the Act, a magistrate may order any person (including private citizens) to
make an arrest. Private persons should use reasonable force just like police where the person
to be arrested resists. Use of excessive force may lead to prosecution for assault and unlawful
confinement contrary to Section 250 and 261 of the Penal Code (Cap. 63) respectively.

1.5.5. Arrest by Magistrates

Section 38 of the Criminal Procedure Code empowers the magistrate to personally arrest an
offender or order any person to do so when an offence is committed in his/her presence or
his/her jurisdiction. He/she may thereafter release the offender on bail or commit him/her to
custody.

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Section 39 of the Criminal Procedure Code empowers a magistrate to arrest or direct the
arrest in his/her presence, within the local limits of his/her jurisdiction, of any person for
whose arrest he/she is competent at the time and in the circumstances to issue a warrant.

Section 42 of the Criminal Procedure Code provides that every person is bound to assist a
magistrate or police officer reasonably demanding his/her aid in the taking or preventing the
escape of another person whom the magistrate or police officer is authorized to arrest and in
the prevention or suppression of a breach of the peace, or in the prevention of injury
attempted to be committed to any railway, canal, telegraph or public property.

1.6. Arrests with a Warrant

An arrest warrant is a written order issued by the court for the apprehension of a person who fails to
appear in court at an appointed time and in relation to an offence committed by him/her. Similarly, a
warrant of arrest may be issued for witnesses who are bonded but fail to appear to give
evidence and for those accused persons who jump or absconded bail.

Section 100 of the Criminal Procedure Code states that if summons have been issued directed
at a person against whom an accusation has been laid, the court may, before or after the time
of hearing, issue a warrant of arrest against the person so summoned. Further, Section 101 of
the Criminal Procedure Code provides that if the accused does not appear at the time and
place appointed in and by the summons, and his/her personal attendance has not been
dispensed with, the court may issue a warrant to apprehend him/her and cause him/her to be
brought before it but no warrant shall be issued unless a complaint has been made upon oath.

Section 102 of the Criminal Procedure Code provides for the form, contents and duration of a
warrant. To be valid a warrant of arrest:
 Shall bear the signature of the judge or magistrate issuing it.
 Shall bear the seal of the Court.
 Shall state the offence with which the person against whom it is issued is charged.

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  Shall state the name or description of the person to be apprehended.
 Shall state the person or person to whom it is directed.
 Shall order the person or persons to whom it is directed to apprehend the subject for the
purpose of bringing him/her before the court issuing the warrant or before some other
court having jurisdiction in the case to answer to the charge therein mentioned and to
be dealt with further in accordance with the law.

As to the duration of a warrant of arrest, a warrant shall remain in force until it is executed or
until it is cancelled by the court which issued it.

Under Section 103(1) of the Criminal Procedure Code, the court issuing a warrant for the
arrest of a person in respect of an offence other than murder, treason or rape may direct by
endorsement on the warrant that, if the person executes a bond with sufficient sureties for his
attendance before the court at a specified time and thereafter until otherwise directed by the
court, the officer to whom the warrant is directed shall take the security and shall release the
person from custody. Such endorsement shall state the number of sureties, the amount in
which they and the person for whose arrest the warrant is issued are to be respectively bound
and the time at which he/she is to attend before the court.

Section 104(1) of the Criminal Procedure Code provides that a warrant of arrest may be
directed to one or more police officers, or to one police officer and to all other police officers of
the area within which the court has jurisdiction, or generally to all police officers of the area.
However, the court issuing a warrant may direct it to any other person or persons if its
immediate execution is necessary and no police officer is immediately available. When a
warrant is directed to more officers or persons than one, it may be executed by all or by any
one or more of them.12

12
Section 104(2) of the Criminal Procedure Code Cap.75 Laws of Kenya.

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Under section 105 of the Criminal Procedure Code, a warrant of arrest may be directed to a
landholder, farmer or manager of land for the arrest of an escaped convict or person who has
been accused of a cognizable offence and has eluded pursuit.

Under Section 106 of the Criminal Procedure Code, a warrant directed to a police officer may
also be executed by another police officer whose name is endorsed upon the warrant by the
officer to whom it is directed or endorsed.

Under Section 107 of the Criminal Procedure Code, the police officer or other person
executing a warrant of arrest shall notify the substance thereof to the person to be arrested,
and, if so required, shall show him the warrant.

Under Section 108 of the Criminal Procedure Code, the police officer or other person
executing a warrant of arrest shall (subject to the provisions of section 103 as to security)
without unnecessary delay bring the person arrested before the court before which he is
required by law to produce that person.

Under Section 109 of the Criminal Procedure Code, a warrant of arrest may be executed at
any place in Kenya.

Under Section 110 of the Criminal Procedure Code, when a warrant of arrest is to be executed
outside the local limits of the jurisdiction of the court issuing it, the court may, instead of
directing the warrant to a police officer, forward it by post or otherwise to a magistrate within
the local limits of whose jurisdiction it is to be executed. The magistrate to whom a warrant is
so forwarded shall endorse his name thereon, and, if practicable, cause it to be executed in the
manner hereinbefore provided within the local limits of his jurisdiction.

Under Section 111 of the Criminal Procedure Code, when a warrant of arrest directed to a
police officer is to be executed outside the local limits of the jurisdiction of the court issuing it,

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he shall take it for endorsement to a magistrate within the local limits of whose jurisdiction it is
to be executed. The magistrate shall endorse his name thereon, and the endorsement shall be
sufficient authority to the police officer to whom the warrant is directed to execute it within
those limits, and the local police officers shall, if so required, assist that officer in executing the
warrant. Whenever there is reason to believe that the delay occasioned by obtaining the
endorsement of the magistrate within the local limits of whose jurisdiction the warrant is to be
executed will prevent its execution, the police officer to whom it is directed may execute it
without endorsement in any place outside the local limits of the jurisdiction of the court which
issued it.

Section 113 of the Criminal Procedure Act provides that an irregularity or defect in the
substance or form of a warrant, and any variance between it and the written complaint or
information, or between either and the evidence produced on the part of the prosecution at a
trial, shall not affect the validity of any proceedings at or subsequent to the hearing of the case,
but, if a variance appears to the court to be such that the accused has been thereby deceived or
misled, the court may, at the request of the accused, adjourn the hearing of the case to some
future date, and in the meantime remand the accused or admit him to bail.

Under Section 90(3) of the Criminal Procedure Code a warrant may be issued on any day
including a Sunday.

1.7. Procedure on arrest of person outside jurisdiction, Section 112 CPC

(1) When a warrant of arrest is executed outside the local limits of the jurisdiction of the court
by which it was issued, the person arrested shall, unless the court which issued the
warrant is within twenty miles of the place of arrest, or is nearer than the magistrate
within the local limits of whose jurisdiction the arrest was made, or unless security is taken
under, Section 103, be taken before the magistrate within the local limits of whose
jurisdiction the arrest was made.

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(2) The magistrate shall, if the person arrested appears to be the person intended by the court
which issued the warrant, direct his removal in custody to that court:

Provided that if the person has been arrested for an offence other than murder, treason or
rape, and he is ready and willing to give bail to the satisfaction of the magistrate, or if a
direction has been endorsed under section 103 on the warrant and the person is ready and
willing to give the security required by the direction, the magistrate shall take the bail or
security, as the case may be, and shall forward the bond to the court which issued the
warrant.

1.8. Children in Custody

A child’s best interest is of paramount importance in every matter concerning the child.13 In
line with Article 49(1)(f) of the Constitution and Rule 4(1) of the Child Offenders Rules,
Schedule 5 of the Children Act, a child should not be held for more than twenty –four hours
without leave of the court.14

Further, in compliance with Article 53(1) (f) of the Constitution, a child should not be
detained unless there are compelling reasons for the detention and only as a measure of last
resort. Any detention must be for the shortest period of time possible. 15

If a child has been held in police custody, the court must ensure that the parents or guardians
of the child and the Department of Children Service have been informed (r. 4(2), Child
Offenders Rules. When dealing with children who have been detained, the court should
enquire about the conditions of detention. The court should be satisfied that the children are
held separately from adults in conditions that take into account the Children’s age and
gender.16

13
Article 53(2) of the Constitution.
14
DMO& Another v Republic High Court at Nairobi High Court Petition No. 397 of 2012
15
CMK v Republic High Court at Kisii Criminal Appeal No. 27 of 2013
16
Article 53(1) (f) (ii) of the Constitution; Children Offenders Rules, r.6; s. 18(3), Children Act.

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 1.9. Persons with Disabilities
When dealing with persons with disabilities, the court must adhere to the principle of
reasonable accommodation.17 This means making reasonable adjustments to ensure that
individuals with disability can be accommodated physically and in other ways. The court
should take into account the conditions of the holding facilities to ensure that, in view of the
accused person disability, committal to the facilities would not amount to inhuman and
degrading treatment.

RESOURCE MATERIALS
LAWS
Constitution of Kenya, 2010.
The Children’s Act, 2022.
The Chiefs’ Authority Act, Chapter 128 Laws of Kenya.
The Criminal Procedure Code, Chapter 75 Laws of Kenya.
The National Police Service Act, 2012.
The Penal Code, Chapter 63 Laws of Kenya.
The Parliamentary Powers and Privileges Act, 2017.

BOOKS
Kiage P, Essentials of Criminal Procedure in Kenya, Law Africa Publishing (K) Ltd, 2010.
Lumumba PLO, An Outline of Criminal Procedure in Kenya, Law Africa Publishing (K) Ltd,
2019.

CASELAW
As cited and all cases in the related subject topic

17
Articles 7(3) (b), 21(3), 27(4), 54(1) of the Constitution.

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