ARRESTS

WHAT IS AN ARREST, WHO MAY AFFECT IT AND HOW IS IT TO BE EFFECTED

FOR IT TO BE CONSIDERED AS VALID?

It is in the nature of persons who have committed or are suspected to have committed offences to
seek to evade the criminal justice system where they can be tried and found guilty which
consequently leads to an imprisonment or fine. It is with regards to the above that the concept of
arrests came into existence so that such persons may be apprehended, restrained and brought
before a Court in accordance with the law.

An arrest is an actual, physical restraint on the liberty of a person who has or has been accused of
committing a crime.

The Criminal Procedure Code (CPC) does not define an arrest. Section 21 only explains how an
arrest is conducted. We thus resort to case law as in Hussein v Chang Fook (1970) 2 WLR 441
where Lord Devlin stated that an arrest occurs:

1. When a police officer states in terms that he is arresting; or

2. When an officer uses force to restrain the individual concerned; or
3. When by words or conduct the officer makes it clear that he will use force if necessary to
restrain the individual from going where he wants to go; but
4. It does not occur where he stops an individual to make inquiries.

However, 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.’

In some circumstances it is not necessary to inform the arrested person the reason for arrest. This
was seen in Christine v Leachinsky (1947) AC 573 (1946) KB 144 where it was held that if the
circumstances are such that the arrested person must know the nature of the offence, it is not
necessary to inform him of the reason for his arrest, and the same applies where the suspect runs
away or resorts to attacking his arresters.

However, the Constitution in Article 49 (1) (a) provides that an accused has the right to be
informed promptly, in a language they understand of the reason for the arrest. Bearing this in
mind, it is important for the accused to be informed for purposes of formalities and in line with
the supreme law of the land.

There are two kinds of arrests;

1) Arrests without a warrant

2) Arrests with a warrant

In the same vein it should be noted that in discussing the two kinds this discourse will
concentrate on;

a. Cognizable offences
b. Non Cognizable offences

A cognizable offence is one for which no warrant is needed in order for an arrest to be effected.
Section 2 of the CPC defines a “cognizable offence” to mean 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 a warrant.

In Republic v Hussein [1990] KLR 497, murder was held to be a cognizable offence, hence a
police officer could arrest without a warrant.

The provisions relating to arrests are found in section 21 – 40 of the CPC.

ARRESTS WITHOUT A WARRANT

These are governed by Sections 29 to 39 of the Criminal Procedure Code and can be effected by
police officers, private persons and magistrates.

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The instances in which a person can be arrested without a warrant include: Where a person

i) Commits or is suspected to have committed a cognizable offence such as murder in

which case no warrant is required for an arrest to be effected
ii) Commits a breach of peace in the presence of a Police Officer.
iii) Obstructs a Police Officer in the execution of his duty.
iv) Are in possession of anything suspected to have been stolen or are reasonably
suspected to have committed an offence in respect of such thing.
v) Are reasonably suspected to being deserters from the Defence Forces.
vi) Escapes or attempts to escape from lawful custody.
vii) Are reasonably suspected to be the subjects of a warrant of arrest.
viii) Are reasonably suspected to have committed an extraditable offence outside Kenya.

I. Arrests by Police Officers

The grounds for arrest without a warrant by a police officer are outlined in Sections 29 and 30 of
the Criminal Procedure Code.

A police officer is entitled to effect an arrest without a warrant for as long as he has reasonable
grounds for entertaining such suspicion at that material time. Subsequent events may show that
the Police Officer was in error at the time but the arrest will not be rendered unlawful.

A person may be arrested without a warrant if he has committed or has been accused of
committing a non-cognizable offence and refuses to give his name and address to a police officer
upon demand.1 Similarly, he may be arrested if he gives a name and address which in the opinion
of the police officer has a likelihood of being false. In such circumstances, he may be held in
custody to enable the police officer to ascertain his true name and address in order to charge him
with the offence. After his name and address have been ascertained, he may be released after
executing a bond, with or without conditions, for his appearance before a magistrate.2 However,
this only applies to persons resident in Kenya. If the person released is not a resident of Kenya, it

1
Criminal Procedure Code, Sec 32 (1)
2
Above n1, Section 32(2)

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is a pre-condition of his release that his bond is secured by sureties resident in Kenya. 3 The true
name and address of the person must be ascertained within twenty-four hours, failure to which he
is to be taken to the nearest magistrate having jurisdiction. Likewise, should the person fail to
execute the bond or provide sureties if so required he shall be taken to the nearest magistrate
having jurisdiction for further directions.4

When an arrest is made under the direction or order of the officer in charge of a police station
and effected by a subordinate officer, the order must be reduced into writing and must specify
the person to be arrested as well as the offence or reason for which the offence is to be made.5

As earlier stated, the Police Officer who arrests without a warrant must without any unnecessary
delay and subject to the bail provisions in the CPC, take the person arrested before a judge or
magistrate having jurisdiction in the case or before an officer in charge of a Police Station.

II. Arrests by Private Persons

This is also referred to as a citizen’s arrest.

A private person is empowered to arrest any person who commits a cognizable offence in his
presence or who he reasonably suspects of having committed a felony. 6Similarly, a person found
committing damage to property may be arrested by the owner of the property, his servants, or
any other person authorized by him.7

A person effecting a citizen’s arrest must present the person so arrested to the nearest police
officer or police station without unnecessary delay. 8 Upon presentation, should there be
reasonable grounds to believe that the person falls into any of the categories enumerated under
Section 29 of the Code, he shall be re-arrested by the police officer.9 If the person presented has
committed a non-cognizable offence and refuses to give his name and address, he shall be held in
custody until the same can be ascertained in accordance with the Section 32 of the Code as

3
Above n1, Section 32(3)
4
Id
5
Criminal Procedure Code, Section 31
6
Above n1, Sec 34(1)
7
Ibid, Sec 34(2)
8
Ibid, Sec 35(1)
9
Ibid, Sec 35(3)

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outlined above. However, if there are insufficient grounds to believe that he has committed an
offence, he must be released at once.10

In Uganda v Muherwa [1972] E.A 466 (CA), 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.

Generally,11 when a person has been taken into police custody without a warrant and the offence
charged is any other than murder or treason, he may be detained only for twenty-four hours
before being arraigned before the appropriate Court.12 If it is not practical for the person to be
brought before the Court within twenty-four hours, the person may be released if the officer in
charge of the station determines, after sufficient inquiry, that the offence is not of a serious
nature. If the person is released, he must execute a bond for a reasonable amount with or without
sureties to appear before a subordinate Court at a time and place to be named in the bond. A
person may also be released if after due inquiry, the officer in charge determines that the
evidence disclosed is insufficient to proceed with the charge.

In Beard and another v R (1970) EA 448 (HCK), the appellants in their capacity as private
individuals arrested the complainant and tied him up. Although he had made no attempt to
escape, they delayed in handing him over to the police as a result of which he suffered injuries.
Consequently the appellants were prosecuted on charges of assault and wrongful confinement
and were convicted, they had used unnecessary force.

III. Arrest by Magistrate

A magistrate may personally arrest or order the arrest of a person who commits an offence in his
presence and within the local limits of his jurisdiction. 13 He may then remit the person into
custody or admit him to bail if the offence committed is bailable. If the offence is one which
requires a warrant, the magistrate may himself arrest or direct the arrest of any person if the
magistrate is competent at the time and in the circumstances to issue a warrant. 14 Of course, this

10
Ibid, Sec 35(2)
11
Ibid, Section 36
12
Const.2010 art 49(1) (f)(i)
13
Ibid, Section 38
14
Ibid, Section 39

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can only be done within the local limits of the magistrate’s jurisdiction, otherwise any such arrest
would be a citizen’s arrest or otherwise unlawful if a warrant is required.

It was stated in the case of Kionywaki v R [1968] E.A 206 that in effecting an arrest, a magistrate
acts as a judicial officer and not in an administrative capacity and cannot be subject to civil and
criminal proceedings.

IV. Re-arrest of Escaped Persons

If a person in lawful custody escapes or is rescued, the person from whose custody he escapes or
is rescued may immediately pursue and arrest him in any place in Kenya.15

V. Arrest by chiefs and assistant chiefs

Chiefs and their assistants under section 8 of the Chiefs’ Act are empowered to arrest any person
for the purpose of preventing them from committing a crime. It also permits them to arrest any
person who has committed a cognizable offence triable by any Court or for whose arrest warrant
has been issued. It follows to allow them to take such person to Court if the release from custody
has not been effected within 12 hours of this arrest.

Their superiors, for instance District Officers and District and Provisional Commissioners are in
law regarded as police officers16

If a person in lawful custody escapes or is rescued, the person from whose custody he escapes or
is rescued may immediately pursue and arrest him in any place in Kenya.17

ARRESTS WITH A WARRANT

15
Ibid, Sec 40
16
Lamambutu v R (1958) E.A. 706 C.A
17
Ibid, s 40

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These are governed by Section 100-113 of the Code and are issued by the Court and directed to
police officers18 for execution.

Generally, a warrant may be issued at any time before or after the time appointed in a summons
for the appearance of the accused.19 In order for a warrant to be issued, a complaint must first be
made on oath.20 This is usually by means of an affidavit sworn by the arresting officer. A warrant
of arrest is issued if the accused person fails to appear in Court and his personal attendance has
not been dispensed with in accordance with the Code. Once issued, it may be executed at any
place in Kenya21 and remains in force until executed, lifted or cancelled by the issuing Court.22

An arrest warrant may therefore be defined as a written order issued by a judge or magistrate on
behalf of the State authorizing the apprehension of a person who fails to appear in Court at an
appointed time and place in relation to an offence committed by him. It may also be issued with
respect to witnesses who fail to appear in Court to give evidence. The Court may also issue a
warrant for the arrest of a person who fails to appear when required even for a mention of their
case as it was held in Abdi Hakim Alsafa v. Republic [2007] Eklr. Of essence to note is that
issuance of warrants involves the exercise of judicial discretion. It should not be issued unless
the offence in question is punishable with imprisonment. The Court ought to be convinced that
the accused would not voluntarily appear in Court, therefore the need to issue an arrest warrant.

REQUIREMENTS FOR VALIDITY OF WARRANTS23

1. It must bear the signature of the issuing judge or magistrate.

2. It must bear the seal of the Court.
3. It must have a short statement of the offence
4. It must disclose the name or description of the person charged.
5. It must bear the name(s) of the person(s) to whom it is directed.

18
Ibid, Sec 104
19
Ibid, Sec 100
20
Ibid, Sec 101
21
Ibid, Sec 109
22
Ibid, Sec 102
23
Id

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 6. It must order the apprehension of the person charged and a direction that he is brought
before the Court or some other Court having jurisdiction in the case to answer to the
charge and to be further dealt with in accordance with the law.

Where an arrest warrant is issued for offences other than murder, treason or rape, the person
accused of committing the offence may execute a bond with sufficient sureties for his appearance
in Court to avoid being remanded into custody.24 This relief must be specifically stated in the
warrant in order for the police officer executing it to have the authority to receive the bond. The
statement takes the form of an endorsement on the warrant stating:

1. The number of sureties required

2. The amount in which they and the subject are to be bound
3. The time at which the subject is to appear before Court

Thereafter, the police officer forwards the bond to the relevant Court.

Warrants may also be directed to landowners for execution where the subject is an escaped
convict or is accused of having committed a cognizable offence and has eluded pursuit. 25 The
person is to be arrested if he comes onto the property of the land owner. When captured, the
person is to be handed over to the nearest police officer for onward transmission to a magistrate
having jurisdiction to try the offence.

In Kingori s/o Kiranditu v R, it was stated that any person or police officer to whom warrant is
issued is bound to execute it like the Court which issued the warrant, he is protected by judicial
immunity.

A warrant of arrest is normally directed to a particular Police Officer or group of Officers.

However, sometimes it may be directed to any person (s) if immediate execution is necessary
and no Police Officer is immediately available. The liability to execute a warrant is joint and
several on the part of the person (s) to whom it is directed.

24
Above n1, Sec 103
25
Ibid, Sec 105

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Where a warrant is to be executed outside the local limits of jurisdiction of the issuing Court, that
Court may forward it by post (registered) to a magistrate or judge in whose jurisdiction it is to be
executed.