EVE MWANGI BLAW/53114/2016

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Arrest is defined as a restraint upon a person liberty and may take the form of physical confinement, freedom of movement according to section 39 of the Kenyan Constitution 2010.

In Kenya, arrest may be conducted by a policeman or any other person who must be a Kenyan citizen. The policeman or the person effecting arrest may confine the body of the suspect, unless he or she willingly agrees to be arrested by conduct or word of mouth.

Where the person resist arrest or attempts to evade, the arresting person or the police officer may use reasonable force to effect the arrest, which is contemplated by law as per section 21(2) of the criminal procedure Dillon vs O brien and Davis, lord diplock says in a case of arrest, reasonable grounds for belief in guilt at the time of arrest are sufficient justifications thought subsequent information or event may show those grounds to be circumstances where the force used is unreasonable in making the arrest the person effecting arrest is liable to any injuries or harm to the suspect, and is liable for assault. This unreasonable force shall not be justified under any circumstance which is provided for in section 21(3) of the civil procedure code.

An arrest warrant 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 offence committed by him or for witnesses who fail to appear in Court to give evidence.

An arrest warrant is issued by the courts only. The police officer go to courts and apply for an application to be issued with an arrest warrant, this warrant is only issued if reasonable and the court if satisfied to issue it. This process involves the exercise of judicial discretion.

In Kenya issues dealing with warrants are provided for in section 22 of the criminal procedure cases where a third party is exempting a suspect form arrest , the police officers have mandate to break in the house if they are convinced beyond reasonable doubt that the suspect is inside and is refusing arrest. This per section 22(2) of the criminal procedure code. Section 23 provides that where police officers have entered then locked in, they are allowed by any means necessary to break out. The arrested person shouldn’t be subjected to any arresting force or restraint that is necessary to prevent escape as per section 24 of the CPC.

This provision is provided for in section 29 of the CPC. It provides the instances where an arrest is made without a warrant. A police officer may without an arrest warrant arrest any person who he suspect to have committed a cognizable offence, commits a breach of peace in his presence , obstruct a police officer in execution of his duty, any person found in possession of stolen property, a deserter of the armed forces of Kenya, any person found in the highway at night and suspects with reasonable grounds that he has committed or is about to commit a felony, any person found in the hours of darkness whom he suspect without reasonable is there for an illegal purpose or he is unable to give an account for his presence.

According to section 34 of the CPC, any person may arrest a suspect who in his presence commits a cognizable offence or with reasonable grounds suspects him of committing a felony. A private citizen may also arrest any person who trespasses into his property. Section 35 of the CPC, the private person making arrest is to turn over the arrested person to the nearest police station without unnecessary delay. The public when effecting arrest since they do not have hand cuffs they can use ropes to make the person immobile . In the case of Beard and another vs republic 1985, the appellant owned an acre of land. They found the complainant at the scene of crime. Nevertheless the complainant admitted the offence but the appellant continued securing his hands and tied him near the rope. He shouted and was taken to the police station. They substituted the sentences with imprisonment with fines to the complainant. This is also showed in the case of Uganda Vs Muherwa 1972 IEA 466 Abdu muhewrwa was an owner of a piece of land where he grew beans. On 2 June 1971 an alarm was heard at the gate where the diseased was found dead with deep cut on the high. The accused who was the owner admitted to cutting the disease because they trespassed and he was stealing his crops. He also alleged that he was defending himself because the diseased hit him with a stick on his head.

However, at the scene of the crime there was no sign of struggle hence the accused used unreasonable force to stop a felony it was held that the right of arrest of a private person, if it cannot be otherwise exercised, does not justify incapacitating the thief with a weapon.

Disposal of an arrested person at the police station
The police officer making the arrest has the liberty to search the arrested person and place his belongings to safe custody unless those that are necessary at the clothing. Sec 25 provides that if a police officer finds something else not part of what they were searching, the police officer have power to search and arrest the suspect on this other offence eg anything illegal
Sec 27 makes provision on how women should be searched. Whenever necessary the search is to be made by another woman with strict regard to decency
This is provided for in article 49 of the Kenyan constitution 2010, every arrested person in Kenya has a right to be informed promptly or immediately in a language one understands e.g. the official language which is in English or Kiswahili,
Must be informed of the reason for the arrest, has the right to remain silent and the consequences of not remaining silent since what h says might be used against him in court, to communicate with an advocate and other person whose assistance is necessary, if the arrested person has no lawyer the government is to provide legal aid, not to be compelled to make any confession or admission that could be used in evidence against him. No one can be compelled to testify against himself either through intimidation, threats or undue influence, to be held separately from persons serving a sentence. He is not guilty to be put in prison until proven otherwise hence should be kept in custody, to be brought before a court as soon as reasonable possible but not later than; twenty four hours after being arrested or if the twenty four hours ends outside court hours, or on a day that is not an ordinary court day, the end of the next court day, at the first court appearance to be charged or informed of the reason for the detention continuing or to be released and , to be released on bond or bail on reasonable conditions pending a charge or trial unless there are compelling reason not to be realised.
In Okello v Republic 1968 the appellant was charged in a magistrate court with 3 counts of robbery in connection to an indecent where three complainants lost their money. There were witness at the scene where one was able to follow the accused to his home which led the police arresting him. The accused had been represented at the beginning of the trial but his advocate failed to attend court. The magistrate decided he could not conduct his own defence, lost and was sentenced to six years imprisonment and suffer strokes of cane on each account. Accused appealed arguing the conviction. It was held the magistrate breached the accused constitutional right, the appeal was allowed and conviction quashed.

Lastly, a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six Traffic offences, mere assault or defamation. The case which directly falls under arrest by a magistrate is Kionywaki v Republic 1968, a justice of peace caused the complainant to be arrested and . detained for refusing to attend a local primary court following the complainants’ refusal to assist in self-help shame. The justice of peace was subsequently charged and convicted of wrongful confinement. The justice of peace appealed. It was held although the arrest and confinement of appellant were unlawful and justified, the appellant was immune from criminal process for such act