A criminal prosecutions under Kenya criminal law is typically initiated with an arrest. An arrest occurs when the police deprive an individual of his or her liberty by taking them into custody. An arrest under kenya law is usually conducted for the purpose of prosecuting or interrogating the individual. Unlike arresting a person in public, when the police arrest someone in their home, they must generally act pursuant to a valid arrest warrant.
A valid arrest warrant under Kenya law requires the following:
- Sufficient showing of probable cause for the arrest. This means that the warrant under Kenya law must contain trustworthy facts or knowledge that would lead a reasonable person to believe that the arrestee was committing a crime or had committed a crime.
- Must be issued by a neutral and detached magistrate (an authoritative figure who has the power to administer the law).
- The warrant application under Kenya law must not include false statements. When the officer submits the warrant application to the magistrate, he or she must ensure that the application does not contain any intentionally misleading or false statements in it. Moreover, the warrant will be deemed invalid if the false statements were material in finding probable cause.
- Must accurately describe the person to be arrested. If the arrest warrant does not "particularly describe" the person to be arrested, it will be deemed invalid.
Under the Kenya law, the methods by which arrests and searches are conducted by the police are always at issue in criminal cases.
Sec 21 of the criminal procedure code states:
(1) In making an arrest the police officer or other person making it shall
actually touch or confine the body of the person to be arrested, unless there be a
submission to custody by word or action.
(2) 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.
(3) Nothing in this section shall justify the use of greater force than was
reasonable in the particular circumstances in which it was employed or was
necessary for the apprehension of the offender.
Search of place entered by person sought to be arrested
Sec 22 of the criminal procedure code states:
(1) If any person acting under a warrant of arrest, or any police officer having
authority to arrest, has reason to believe that the person to be arrested has
entered into or is within any place, the person residing in or being in charge of
that place shall, on demand of the person so acting or the police officer, allow
him free ingress thereto and afford all reasonable facilities for a search therein.
(2) If ingress to a place cannot be obtained under subsection (1), it shall be
lawful in any case for a person acting under a warrant, and in any case in which
a warrant may issue but cannot be obtained without affording the person to be
arrested an opportunity to escape, for a police officer to enter the place and
search therein, and, in order to effect an entrance into the place, to break open
any outer or inner door or window of a house or place, whether that of the person
to be arrested or of another person, or otherwise effect entry into the house or
place, if after notification of his authority and purpose, and demand of admittance
duly made, he cannot otherwise obtain admittance:
Provided that if any such place is 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.
Use of force during an arrest under Kenya law
Sec 24 of the criminal procedure code states that:
"The person arrested shall not be subjected to more restraint than is necessary
to prevent his escape."
Mode of searching women under Kenya law
Section 27 states that:
"Whenever it is necessary to cause a woman to be searched, the search shall
be made by another woman with strict regard to decency."