ARREST.

Question A

What is an arrest?

According to the Black’s Law dictionary, an arrest can be defined as follows;

“ the taking or keeping of a person in custody by legal authority especially in response to a

criminal charge; the apprehension of someone for the purpose of securing the administration
of the law, especially of bringing that person before a court”1.

However, the Criminal Procedure Code doesn’t define what an arrest is. In the case of
Hussein Vs Chang Fook 2 Lord Devlin stated that an arrest occurs:-

➢ When a police officer states the terms that he is arresting, or

➢ When an officer uses force to restrain the individual concerned; or
➢ 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.
An arrest can be effected in either two ways. These are:-

a) arrest with a warrant

b) arrest without a warrant.
Arrest with a warrant

This occurs when criminal proceedings are commenced by a police officer or a public
prosecutor first laying a charge in court or by private complaint 3, it becomes necessary to
secure the appearance in court of an accused person by issuing a warrant for his arrest. The
court may then issue a warrant for the arrest of the person against whom the charge has
been preferred. Similarly, a warrant of arrest will be issued by the court for witnesses who
have been bonded but fail to turn up to give evidence 4, and for accused persons who have
jumped bail or absconded.

It is mostly required for minor offence and misdemeanours. A warrant of arrest is directed
to a particular person ordering him to arrest the person in respect of whom it is issued and
bring them to court. Securing appearance occurs where criminal proceedings are
commenced by a police officer/public prosecutor either by first laying a charge in court or
by a private complaint.

1
Page 116, Black’s Law dictionary 8th edition.
2
(1970)2 WLR441
3
M'lmbui v Dyer (1967) E.A. 315 (High Court of Kenya).
4
Section 145 Criminal Procedure Act Cap 75 Laws of Kenya
Section 102 of CPC requires warrant of arrest to be in writing, signed by a magistrate and
bearing the seal of the court.5 Warrants of arrest are therefore deemed to have the
following features;

a)
must be under a hand of judge or magistrate with seal of court
b)
state offence which person is charged with
c)
describe that person
d)
Order the person to whom it’s directed to apprehend the person against
whom it is issued and bring him 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 further dealt with according to law.
The warrant of arrest shall remain in force until it is executed or until it is cancelled by the
court which issued it.6 It may be also be executed at any place in Kenya7.

An arrest without a warrant

Occurs where any person, be it a magistrate, police officer or a private individual, can
arrest someone on any suspicious ground of having or is about to commit an offence as the
law permits. The conditions of an arrest are to the effect that reasonable force be used
when a person resists arrest, and the constitution provides for the necessity of informing
the arrested person of the reasons of the arrest.8
Circumstances when it is not necessary to inform the arrested person the reason for
arrest.
1) Where the arrested person knows the nature of why he/she is being arrested;
2) Where the suspect runs away from his arrestors.
This was discussed in the case of Christine v Leachinsky (1947) AC 573 (1946) KB 144

Statutes governing arrest

These include:-

1. The Constitution of Kenya 2010, under article 49,

2. The Criminal Procedure Code,
3. The Magistrate courts Act,
4. The police Act,
5. The Traffic Act and

5
Section 102, Criminal Procedure Code.
6
Section 102(3) of Criminal Procedure Code.
7
Sec. 109 Criminal Procedure Act
8
article 49, Constitution of Kenya 2010,
 6. International laws such as the Universal Declaration of Human Rights 1948 which
guarantees personal liberty9 and the International Conventions on Civil and political
rights 1966 which provides that no one shall be deprived of his personal liberty
except on such grounds and in accordance with such procedures established by
law.10
Who may effect an arrest?

The following persons may effect an arrest:-

a) Police Officer
The Constitution provides for limitation of rights and fundamental freedoms however the
article secures the liberty of the person and their goes to give exceptions where a person’s
liberty may be deprived if that deprivation is authorised by law.11

Sec 29(1) of the CPC provides that a police officer may without an order from a magistrate
and without a warrant arrest

a) any person whom he suspects upon reasonable grounds of having committed a

cognizable offence and
b) any person who obstructs a police officer while in the execution of his duty
c) breach of peace.
A 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 meantime being
in force arrest without a warrant. Other instances where a police officer may arrest with or
without a warrant include the following:-

● Commission of Felonies
● Possession of suspected stolen property
● Desert from the army
● Possession of implements of house breaking

(b)Private persons
A private person may arrest any person who in his view commits a cognizable offence, or
whom he reasonably suspects of having committed a felony.12 The Criminal Procedure Code
also outlines how such arrests are to be effected by private persons.

9
Article 3, Universal Declaration of Human Rights 1948.
10
Article 9. International Conventions on Civil and political rights 1966.
11
Article 24, Constitution of Kenya 2010.
12
Section 34 (1), Criminal Procedure Code
It is important to note that a private person arresting another person without a warrant
shall without unnecessary delay make over the person so arrested to a police officer, or in
the absence of a police officer shall take that person to the nearest police station13.

Section 21(2) of the CPC is to the effect that private persons should also use reasonable
force when effecting an arrest. In M’ibui v. Dyer14, it was stated that in addition to criminal
proceedings, the person will be ordered to pay compensation to the injured person if he
acted unreasonably in effecting the arrest and caused injuries. Under the CPC sec 42
provides that every person is bound to assist a Magistrate, a police Officer reasonably
demanding his aid in the taking or preventing the escape of another person whom the
Magistrate or Police Officer is authorised to arrest in the prevention or suppression of
breach of peace.

(c) Magistrates
A magistrate can arrest with or without a warrant where an offence is committed in
his/her presence and within his/her jurisdiction as provided for in sec 38 of the CPC as
when an offence is committed in the presence of a magistrate within the local limits of his
jurisdiction, he may himself arrest or order any person to arrest the offender, and may
thereupon, subject to the provisions of this Code as to bail, commit the offender to custody.

d) Arrest under the children act15

The procedure for arresting children is provided for under the Child Offenders Rules, which
is Schedule 5 of the Children Act, specifically at Rule 4. It provides that where a child is
apprehended with or without a warrant on suspicion of having committed a criminal
offence he shall be brought before the court as soon as practicable. No child shall be held in
custody for a period exceeding twenty four hours from the time of his apprehension,
without the leave of the court.

e) Others who may arrest

Under Section 8 of the Chiefs Authority Act16, chiefs are empowered to arrest a person
for the purpose of preventing them from committing an offence within their jurisdiction
and any person arrested under the powers conferred by this subsection shall, without
delay, be taken to the nearest police station. In Lamambutu v R17 it was that in exercise of
these powers PCs, Dos chiefs have equal powers with police officers. Under Section 117 of
the Environmental Management and Coordination Act18 an Environment Officer
appointed and gazetted by the Director is empowered, with an arrest warrant and the
13
Section 35(1) , Criminal Procedure Code
14
(1967) EA 315 (HCK)
15
Act No. 8 of 2001
16
Cap 128 Laws of Kenya
17
(1958) EA 706
18
Act No.8 of 1999
assistance of a police officer; to arrest any person whom he reasonably believes has
committed an offence under the Act.

The Local Government Act19 at Section 259 provides that any officer of a local authority
who at the time is in uniform or is wearing a visible badge of office and authorized thereto
in writing by the local authority, may arrest, without warrant, any person who in his
presence commits any offence under this Act or any by-laws made under this Act or any
other written law and may detain such person until he can be delivered into the custody of
a police officer to be dealt with according to law.

Section 34 of the Police Act20 provides that a gazetted police officer can arrest, or order
for the arrest of an officer junior to them, who is accused of any offence against discipline.
Besides the police, ordinary courts and private persons, other tribunals which exercise
quasi-judicial powers such as the Rent Restriction Tribunal and Judicial Commissions of
Inquiry have powers to issue warrants of arrest21. Likewise, every officer of the National
Assembly is vested with police powers under the National Assembly (Powers and
Privileges) Act22. In exercising this power, the speaker or any officer of the National
Assembly is not subject to the jurisdiction of any court23.

The Administration Police Act24 at Section 13 provides that an officer may without a
warrant arrest a person whom he suspects on reasonable grounds of having committed a
cognizable offence, commits a breach of the peace in his presence, or obstructs an officer
while in the execution of his duty or who has escaped or attempts to escape from lawful
custody. Under the Armed Forces Act25, all members of the constabulary26 have the like
powers and privileges as are by law accorded to police officers 27, in the exercise of their
functions under the Act and may without warrant arrest, and hand over to the police, a
person who is in his control or fresh pursuit due to reasonably suspicion of having
committed an offence, where the person refuses to identify himself to the officers
satisfaction, or the officer forms the opinion that the person could escape or cause
inordinate delay if not arrested.

How is it to be effected?

19
Cap 265 Laws of Kenya
20
Cap 84 Laws of Kenya
21
See R v Zablon Ogalo Obonyo, Criminal Case No. 24 of 1991, Principal Magistrates Court, Kisumu
22
Section 30, National Assembly (Powers and Privileges) Act, Chapter 179 of the Laws of Kenya.
23
Ibid section 29. See also Attorney-General v. Times Newspapers Ltd. (1973)1 All ER 815.
24
Cap 85 Laws of Kenya
25
Cap 199 Laws of Kenya
26
The Armed forces Constabulary is created by Section 191 of the Armed Forces Act its function are provided for at Section 194
of the Act as to maintain the security, protection (including protection against fire and other damage) and orderly regulation of all
public establishments and of public property in the charge of the armed forces.
27
Ibid, Section 195
Article 49 of the Constitution of Kenya 2010 provides for the rights of an arrested
person. These includes: -

a) To be informed promptly, in a language that he understands, of

● The reason for the arrest;
● The right to remain silent; and
● The consequences of not remaining silent;
b) To remain silent;
c) To communicate with an advocate or other persons whose assistance is necessary;
d) Not to make any confession or admission that could be used in evidence against him or
her;
e) To be held separately from persons serving a sentence;
f) To be brought before a court as soon as possible, that is,
● Not later than 24 hours after being arrested; or
● If ordinary court hours end or if on a day that is not an ordinary court day, then
before the end of the next court day
g) To be charged or informed of reason of detention or be released on the day of first court
appearance; 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.
Section 22(2) of the CPC states that if a person forcibly resists the endeavour to arrest
him, or attempts to evade the arrest, the police officer or other person may use all means
necessary to effect the arrest.

However with regard to private persons if unreasonable force is used and in the process
causes the suspects death, he is liable for prosecution in a court of law. 28 This was
illustrated in the case of Uganda v. Muherwa29, where 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. Private persons are
therefore entitled to use reasonable force where a person resists arrest because the use
of unreasonable force may lead to civil or criminal liability.
In effecting arrests the CPC sec 39 stipulates that a magistrate may at any time arrest or
direct the arrest in his presence, within the local limits of his jurisdiction, of any person for
whose arrest he is competent at the time and in the circumstances to issue a warrant.

Question 1 Part c

28
Momanyi Bwonwong’a, Procedures in Criminal Law in Kenya, published by East African Educational Publishers, page 59
29
(1972) EA 466(CA)
BRIEF FACTS

On Saturday 12.01.2013, a traffic officer constable Amka Twende in uniform flagged down
lorry No. KQ. 333, being driven by kichwa maji. Kichwa maji wasn’t wearing a seat belt,
lorry had a broken wind screen, with no reflectors. Upon being asked driving license,
kichwa had none. Amka Twende announced that he was arresting him for the afore said
breaches of the law. Kichwa maji demanded for an arrest warrant from Amka twende,
and he said that he did not need an arrest warrant. Kichwa Maji was demanded to climb
off the lorry but he declined. Amka twende tried to open the driver’s door in order to
arrest him, and then Kichwa gave him a mighty kick. As Amka Twende tried to wake up,
Kichwa climbed off the lorry quickly and wrestled him back to the ground, stepped on his
mouth knocking out his two upper teeth. Thereafter a crowd began to gather as some
members began to yearn for more drama and telling kichwa maji to teach the cop a lesson.
Two plain clothed policemen sergeant Tanyafujo and Uhalifu went to Amkas rescue and
arrested Kichwa Maji, plus Kijana Mpotevu and Siogopi kintu who were urging Kichwa
to teach Amka Twende a lesson.

Issues that arises from the facts

1. Whether the facts disclose any offences

2. Whether the arrests were lawful and valid
3. What are the requisite documents necessary for the offences
Law applicable

(A) Constitution of the republic of Kenya

(B) The criminal procedure code
(C) Penal code Act
(D)The magistrates courts Act
(E) The police Act
(F) Traffic Act
(G) Case law
Resolutions

According to the Constitution of Kenya, under article 24, a right or fundamental freedom in
the Bill of Rights shall not be limited except by law, and then only to the extent that the
limitation is reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account all relevant factors. Section 16 of the
police Act provides for the maintenance of order on the roads, and that it is the duty of the
police officer to regulate and control traffic and to keep law and order and prevent
obstruction in public places, and may arrest without a warrant.
And according to issue one as to whether the facts disclose any offences, section 30 of the
traffic Act provides for driving without a license, and that no person shall drive a motor
vehicle of any class on a road unless he is the of a valid driving license or a provisional
license endorsed in respect of that class of vehicle.
36. (1) Any person driving a motor vehicle on a road shall carry his driving licence or
provisional licence, and on being so required by a police officer, produce it for examination.
Further more Section 30(6) provides that any person who contravenes or fails to comply
with this section shall be guilty of an offence and liable-
(a) on first conviction to a fine not exceeding two thou-sand shillings or to imprisonment
for a term not exceeding three months; and
(b) on each subsequent conviction to a fine not exceeding five thousand shillings or to
imprisonment for a term not exceeding six months or to both. And from the facts, kichwa
maji never had a licence as the police officer demanded for it and found him with none.. So
he will be guilty of the offence of driving without driving incense.

Further more the facts disclose the offence of driving unworthy vehicle contrary to section
55 of the Act. The act states that no vehicle shall be used on a road unless such vehicle and
all parts and equipments there of, including lights, tyres, and such parts shall be maintained
in such a condition that the droving of the vehicle is not likely to be a danger to other user
the road. Section 58(1) provides that Any person who drives or uses on a road a vehicle in
contravention of the provisions of section 55 or section 56 shall be guilty of an offence and
liable to a fine not exceeding four hundred thousand shillings or to imprisonment for a
term not exceeding two years or to both, and from the facts kichwa maji’s vehicle had no
reflectors, no wind screen and no lights thus making it unworthy vehicle.
According to the penal code Act, kichwa maji will also be guilty of the offense of assault
causing actual bodily harm, and resisting arrest as provided for under the penal code.
Under section 250, any person who unlawfully assaults another is guilty of a
misdemeanour and, if the assault is not committed in circumstances for which a greater
Punishment is provided in this Code, is liable to imprisonment for one year.
251. Any person who commits an assault occasioning actual bodily harm is guilty of a
misdemeanour and is liable to imprisonment for five years. And section
252 provides that Any person who assaults and strikes or wounds any magistrate, officer
or other person lawfully authorized in or on account of the execution of his duty is guilty of
an offence
253. Any person who-
(a) Assaults any person with intent to commit a felony or to resist or prevent the lawful
apprehension or detainer of himself or of any other person for any offence; or
(b) Assaults, resists or wilfully obstructs any police officer in the due execution of any duty
imposed on him by law, is guilty of a misdemeanour and is liable to imprisonment for five
years.
According to section 20 of the Penal Code any person who counsels or procures any
other person to commit the offence may be charged either with committing the offence or
counseling or procuring its commission. Section 22(1) provides that When a person
counsels another to commit an offence, and an offence is actually committed after such
counsel by the person to whom it is given, it is immaterial whether the offence actually
committed is the same as that counseled or a different one, or whether the offence is
committed in the way counseled or in a different way, provided in either case that the facts
constituting the offence actually committed are a probable consequence of carrying out the
counsel.
Section 22(2) provides that in either case the person who gave the counsel is deemed
to have counseled the other person to commit the offence actually committed by him. From
the facts siogopi kitu and kijana mpotevu are criminally liable for counseling kichwa maji to
commit assault as they were urging him to teach him a lesson.
Further more the facts disclose the offence of incitement to violence and disobedience of
the law. Although the Constitution under article 33(2)(b) provides that the right to freedom
of expression does not extend to

a) Propaganda for war

b ) incitement to violence,

Section 96 of the penal code provides that any person who without lawful excuse, the
burden of proof, where of shall be upon him, utters, prints, publishes any words or does
any act or thing indicating or implying that it is or might be desirable to do or omit to do,
any act the doing or omission of which is calculated

a ) to bring death of physical injury to any person or to any class or community or body of
persons

b ) to prevent or defeat by violence or by other unlawful means the execution or

enforcement of any written law to lead, defiance or disobedience of any such law or of any
authority is guilty of an offence and is liable to an imprisonment for a term not exceeding
five years.

From the facts, siogopi kitu and kijana mpotevu are criminally liable for the offence of
incitement of violence and disobedience of the law as they were yearning for more of
drama telling kichwa maji to teach the cop a lesson.

QUESTION 1C(iii)

With regards to the jurisdiction, article 157(6) of the Constitution provides that The
Director of Public Prosecutions shall exercise State powers
of prosecution and may—

a) institute and undertake criminal proceedings against any person before any court
(other than a court martial) in respect of any offence alleged to have been
committed;
 (b) take over and continue any criminal proceedings commenced in any court (other
than a court martial) that have been instituted or undertaken by another person or
authority, with the permission of the person or authority.
Also first schedule of the Criminal procedure code provides that assault occasioning actual
bodily harm can be tried at any subordinate court. Various assaults which among others
include resisting arrest can be charged in any subordinate court with the first class. While
incitement to violence can be tried at any subordinate court of first class.
 KENYA POLICE

CHARGE SHEET

O.B No…………. POLICE CASE NO163/12/2013

DATE TO COURT 15.01.2013

CHRISTIAN SIRNAME OR IDENTITY SEX NATIONALITY AGE ADDRESS

NAMES IN FATHER’S
FULL OR NAME
NAMES

N/A
KICHWA
MAJI
2733378 MALE KENYAN 35 P.O BOX
25467

NAIROBI

CHARGE Assaulting a police officer contrary to section 253(b) of the Penal Code

PARTICULARS OF KICHWA MAJI On the 12.03.2102 at Ruaraka along Nairobi Thika Highway
OFFENCE assaulted AMKA TWENDE, a police officer by kicking him in the chest,
sending him crashing down onto tarmac below and wrestled him back to
the ground and stepped on his mouth twice in quick succession, knocking
out two of his front upper teeth instantly.

COUNT II OVERLEAF

If accused arrested Date of With/ Date App to Bond or Is

arrest without Court Application
warrant Bail and for Summon
amount to Issue

12.01.2013 W/O IN CUSTODY N/A

Remanded or
Adjourned

Complainant and REPUBLIC THROUGH THE DIRECTOR OF PUBLIC PROSECUTIONS

 address

Witnesses 1. Amka twende

2. Fanya Fujo Uone
3. Uhalifu Haulipi

Sentence Court CHIEF MAGISTRATE COURT NAIROBI……If fine Paid……….

and Date

COUNT II

CHARGE

Resisting lawful arrest contrary to section 253(a) of the Penal Code

PARTICULARS OF OFFENCE

KICHWA MAJI On 12.01.2013 at Ruaraka along Nairobi Thika Highway resisted lawful arrest by
AMKA TWENDE, a police officer by kicking him in the chest, sending him crashing down onto
tarmac below and wrestled him back to the ground and stepped on his mouth twice in quick
succession, knocking out two of his front upper teeth instantly.

……..………………………………………..

For Officer in Charge Ruaraka Police station

 KENYA POLICE

CHARGE SHEET

O.B No…………. POLICE CASE NO 165/12/2013

DATE TO COURT 15.01.1023

CHRISTIAN SIRNAME OR IDENTITY SEX NATIONALITY AGE ADDRESS

NAMES IN FATHER’S
FULL OR NAME
NAMES

N/A
KICHWA
MAJI
2733378 MALE KENYAN 35 P.O BOX
25467

NAIROBI

CHARGE Driving a motor vehicle without a driving licence contrary to section 30(1)
of the Traffic Act.

PARTICULARS OF KICHWA MAJI On 12.01.2013 while driving a vehicle Reg.No KQ 333 at

OFFENCE Ruaraka along Nairobi Thika Highway had no driving licence.

COUNTS II AND III OVERLEAF

If accused arrested Date of With/ Date App to Bond or Is

arrest without Court Application
warrant Bail and for Summon
amount to Issue

12.01.2013 W/O IN CUSTODY N/A

Remanded or
Adjourned

Complainant and REPUBLIC THROUGH THE DIRECTOR OF PUBLIC PROSECUTIONS

address
 Witnesses 1. Amka twende
2. Fanya Fujo Uone
3. Uhalifu Haulipi

Sentence Court CHIEF MAGISTRATE COURT NAIROBI……If fine Paid……….

and Date

COUNT II

CHARGE

Driving an unroadworthy vehicle contrary to section 55 of the Traffic Act

PARTICULARS OF OFFENCE

KICHWA MAJI On 12.01.2013 at Ruaraka along Nairobi Thika Highway while drove motor vehicle
Reg. No. KQ 333 that had a broken windscreen and was without reflectors.

COUNT III

CHARGE

Failure to produce a driving licence on demand contrary to section 36(1) of the Traffic Act

PARTICULARS OF OFFENCE

KICHWA MAJI On 12.01.2013 at Ruaraka along Nairobi Thika Highway while drove motor vehicle
Reg. No. KQ 333 failed to produce a driving licence.

……..………………………………………..
For Officer in Charge Ruaraka Police station
 KENYA POLICE

CHARGE SHEET

O.B No…………. POLICE CASE NO 164/12/2013

DATE TO COURT 15.01.1023

CHRISTIAN SIRNAME IDENTITY SEX NATIONALIT AGE ADDRESS

NAMES IN FULL OR Y
OR NAMES FATHER’S
NAME

1) KIJANA
MPOTEVU 1. N/A
2) SIOGOPI 2. N/A
KITU 1. 27389076 1. MA
2. 27278564 LE 1. KENYAN
2. MA 2. KENYAN 24
LE 25

CHARGE INCITEMENT TO VIOLENCE CONTRARY TO SECTION 69 OF THE PENAL

CODE

PARTICULARS OF KIJANA MPOTEVU AND SIOGOPI KITU On 12.01. 2013 at Ruaraka along
OFFENCE Nairobi Thika Highway urged KICHWA MAJI to assault AMKA TWENDE
with repeated calls of ‘fundisha karao’.

COUNTS II AND III OVERLEAF

If accused arrested Date of With/ Date App to Bond or Is

arrest without Court Applicatio
warrant Bail and amount n for
Summon
to Issue

12.01.2013 W/O IN CUSTODY N/A

Remanded or
Adjourned

Complainant and REPUBLIC THROUGH THE DIRECTOR OF PUBLIC PROSECUTIONS

address
Witnesses 1) Amka twende
2) Fanya Fujo Uone
3) Uhalifu Haulipi

Sentence Court CHIEF MAGISTRATE COURT NAIROBI……If fine Paid……….

and Date