Kenya CPC Part III

PART III – GENERAL PROVISIONS
ARREST, ESCAPE AND RETAKING
Arrest Generally
21. Arrest
(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.
22. Search of place entered by person sought to be arrested
(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.
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23. Power to break out of house, etc., for purposes of liberation
A police officer or other person authorized to make an arrest may break out of
any house or place in order to liberate himself or any other person who, having
lawfully entered for the purpose of making an arrest, is detained therein.
24. No unnecessary restraint
The person arrested shall not be subjected to more restraint than is necessary
to prevent his escape.
25. Search of arrested persons
Whenever a person is arrested—
(a) by a police officer under a warrant which does not provide for the
taking of bail, or under a warrant which provides for the taking of bail
but the person arrested cannot furnish bail; or
(b) without warrant, or by a private person under a warrant, and the
person arrested cannot legally be admitted to bail or is unable to
furnish bail,
the police officer making the arrest, or, when the arrest is made by a private
person, the police officer to whom he makes over the person arrested, may
search that person and place in safe custody all articles, other than necessary
wearing apparel, found upon him.
26. Power to detain and search aircraft, vessels, vehicles and persons
(1) A police officer, or other person authorized in writing in that behalf by the
Commissioner of Police, may stop, search and detain—
(a) any aircraft, vessel or vehicle in or upon which there is reason to
suspect that anything stolen or unlawfully obtained may be found; or
(b) any aircraft, vessel or vehicle which there is reason to suspect has
been used or employed in the commission or to facilitate the
commission of an offence under the provisions of Chapters XXVI,
XXVIII and XXIX of the Penal Code (Cap 63); or
(c) any person who may be reasonably suspected of having in his
possession or conveying in any manner anything stolen or
unlawfully obtained.
(2) No person shall be entitled to damages or compensation for loss or
damage suffered by him in respect of the detention under this section of an
aircraft, vessel or vehicle.
(3) For the purposes of this section, “aircraft”, “vessel” and “vehicle”,
respectively, include everything contained in, being on or attached to an aircraft,
vessel or vehicle, as the case may be, which, in the opinion of the court, forms
part of the equipment of the aircraft, vessel or vehicle.
[Act No. 13 of 1967, Sch., L.N. 474/1963.]
27. Mode of searching women
Whenever it is necessary to cause a woman to be searched, the search shall
be made by another woman with strict regard to decency.
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28. Power to seize offensive weapons
The officer or other person making an arrest may take from the person
arrested any offensive weapons which he has about his person, and shall deliver
all weapons so taken to the court or officer before which or whom the officer or
person making the arrest is required by law to produce the person arrested.
Arrest without Warrant
29. Arrest by police officer without warrant
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;
(b) any person who commits a breach of the peace in his presence;
(c) any person who obstructs a police officer while in the execution of
his duty, or who has escaped or attempts to escape from lawful
custody;
(d) any person 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;
(e) any person whom he suspects upon reasonable grounds of being a
deserter from the armed forces;
(f) any person whom he finds in a highway, yard or other place during
the night and whom he suspects upon reasonable grounds of having
committed or being about to commit a felony;
(g) any person whom he finds in a street or public place during the
hours of darkness and whom he suspects upon reasonable grounds
of being there for an illegal or disorderly purpose, or who is unable
to give a satisfactory account of himself;
(h) any person whom he suspects upon reasonable grounds of having
been concerned in an act committed at a place out of Kenya which,
if committed in Kenya, would have been punishable as an offence,
and for which he is liable to be extradited under the Extradition
(Contiguous and Foreign Countries) Act (Cap 76) or the Extradition
(Commonwealth Countries) Act (Cap 77);
(i) any person having in his possession without lawful excuse, the
burden of proving which excuse shall lie on that person, any
implement of housebreaking;
(j) any released convict committing a breach of any provision
prescribed by section 344 or of any rule made thereunder;
(k) any person for whom he has reasonable cause to believe a warrant
of arrest has been issued.
[Act No. 5 of 1958, s. 2, Act No. 13 of 1967, First Sch., L.N. 124/1964.]
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30. Arrest of vagabonds, habitual robbers, etc.
An officer in charge of a police station may in the same manner arrest or
cause to be arrested—
(a) any person found taking precautions to conceal his presence within
the limits of the station under circumstances which afford reason to
believe that he is taking those precautions with a view to committing
a cognizable offence;
(b) repealed by Act No. 5 of 2003, s.61;
(c) repealed by Act No. 5 of 2003, s.61.
[Act No. 5 of 2003, s. 61.]
31. Procedure when police officer deputes subordinate to arrest without
warrant
When an officer in charge of a police station requires an officer subordinate to
him to arrest without a warrant (otherwise than in his presence) any person who
may lawfully be arrested without a warrant under section 30, he shall deliver to
the officer required to make the arrest an order in writing specifying the person to
be arrested and the offence or other cause for which the arrest is to be made.
32. Refusal to give name and residence
(1) 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 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 that his name or residence may be ascertained.
(2) When the true name and residence of the person have been ascertained
he shall be released on his executing a bond, with or without sureties, to appear
before a magistrate if so required:
Provided that if the person is not resident in Kenya the bond shall be
secured by a surety or sureties resident in Kenya.
(3) Should the true name and residence of the person not be ascertained
within twenty-four hours from the time of arrest, or should he fail to execute the
bond, or, if so required, to furnish sufficient sureties, he shall forthwith be taken
before the nearest magistrate having jurisdiction.
33. Disposal of persons arrested by police officer
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.
34. Arrest by private person
(1) 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.
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(2) Persons found committing an offence involving injury to property may be
arrested without a warrant by the owner of the property or his servants or
persons authorized by him.
35. Disposal of person arrested by private person
(1) 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 station.
(2) If there is reason to believe that the person comes under section 29, a
police officer shall rearrest him.
(3) If there is reason to believe that he has committed a non-cognizable
offence, and he refuses on the demand of a police officer to give his name and
residence, or gives a name or residence which the officer has reason to believe
to be false, he shall be dealt with under section 32.
(4) If there is no sufficient reason to believe that he has committed an offence
he shall at once be released.
36. Detention of persons arrested without warrant
When a person has been taken into custody without a warrant for an offence
other than murder, treason, robbery with violence and attempted robbery with
violence the officer in charge of the police station to which the person has been
brought may in any case and shall, if it does not appear practicable to bring that
person before an appropriate subordinate court within twenty-four hours after he
has been so taken into custody, inquire into the case, and, unless the offence
appears to the officer to be of a serious nature, release the person on his
executing a bond, with or without sureties, for a reasonable amount to appear
before a subordinate court at a time and place to be named in the bond, but
where a person is retained in custody he shall be brought before a subordinate
court as soon as practicable:
Provided that an officer in charge of a police station may release a person
arrested on suspicion on a charge of committing an offence, when, after due
police inquiry, insufficient evidence is, in his opinion, disclosed on which to
proceed with the charge.
[Act No. 22 of 1959, s. 6, Act No. 13 of 1988, Sch.]
37. Police to report apprehensions
Officers in charge of police stations shall report to the nearest magistrate the
cases of all persons arrested without warrant within the limits of their respective
stations, whether those persons have been admitted to bail or not.
38. Offence committed in magistrate’s presence
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.
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39. Arrest by magistrate
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.
Escape and Retaking
40. Recapture of person escaping
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.
41. Provisions of sections 22 and 23 to apply to arrests under section 40
The provisions of sections 22 and 23 shall apply to arrests under section 40
although the person making the arrest is not acting under a warrant and is not a
police officer having authority to arrest.
42. Assistance to magistrate or police officer
Every person is bound to assist a magistrate or police officer reasonably
demanding his aid—
(a) in the taking or preventing the escape of another person whom the
magistrate or police officer is authorized to arrest;
(b) 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.
PREVENTION OF OFFENCES
Security for Keeping the Peace and for Good Behaviour
43. Security for keeping the peace
(1) Whenever a magistrate empowered to hold a subordinate court of the first
class is informed that a person is likely to commit a breach of the peace or
disturb the public tranquillity, or to do any wrongful act that may probably
occasion a breach of the peace or disturb the public tranquillity, the magistrate
shall examine the informant on oath and may as hereinafter provided require the
person in respect of whom the information is laid to show cause why he should
not be ordered to execute a bond, with or without sureties, for keeping the peace
for such period, not exceeding one year, as the magistrate thinks fit.
(2) Proceedings shall not be taken under this section unless either the person
informed against, or the place where the breach of the peace or disturbance is
apprehended, is within the local limits of the magistrate’s jurisdiction.
(3) When a magistrate not empowered to proceed under subsection (1) has
reason to believe that a person is likely to commit a breach of the peace or
disturb the public tranquillity, or to do any wrongful act that may probably
occasion a breach of the peace or disturb the public tranquillity, and that a
breach of the peace or disturbance cannot be prevented otherwise than by
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detaining the person in custody, the magistrate may, after recording his reasons,
issue a warrant for his arrest (if he is not already in custody or before the court),
and may send him before a magistrate empowered to deal with the case, with a
copy of his reasons.
(4) A magistrate before whom a person is sent under this section may detain
that person in custody until the completion of the inquiry hereinafter prescribed.
[Act No. 22 of 1959, s. 7.]
44. Security for good behaviour from persons disseminating seditious
matter
Whenever a magistrate empowered to hold a subordinate court of the first
class is informed on oath that there is within the limits of his jurisdiction a person
who, within or without those limits, either orally or in writing or in any other
manner, disseminates, or attempts to disseminate, or has recently disseminated,
or in anyway abets the dissemination of—
(a) repealed by Act No. 5 of 2003, s. 62;
(b) matter which is likely to be dangerous to peace and good order
within Kenya or is likely to lead to the commission of an offence; or
(c) matter concerning a judge which amounts to libel under the Penal
Code,
the magistrate may, in the manner provided in this Code, require that person to
show cause why he should not be ordered to execute a bond, with or without
sureties, for his good behaviour for such period, not exceeding one year, as the
magistrate thinks fit.
[Act No. 33 of 1958, s. 2, Act No. 5 of 2003, s. 62.]
45. Security for good behaviour from suspected persons
Whenever a magistrate empowered to hold a subordinate court of the first
class is informed on oath that a person is taking precautions to conceal his
presence within the local limits of the magistrate’s jurisdiction, and that there is
reason to believe that the person is taking those precautions with a view to
committing an offence, the magistrate may, in the manner hereinafter provided,
require that person to show cause why he should not be ordered to execute a
bond, with sureties, for his good behaviour for such period, not exceeding one
year, as the magistrate thinks fit.
46. Security for good behaviour from habitual offenders
Whenever a magistrate empowered to hold a subordinate court of the first
class is informed on oath that a person within the local limits of his jurisdiction—
(a) is by habit a robber, housebreaker or thief; or
(b) is by habit a receiver of stolen property, knowing it to have been
stolen; or
(c) habitually protects or harbours thieves, or aids in the concealment or
disposal of stolen property; or
(d) habitually commits or attempts to commit, or aids or abets in the
commission of, an offence punishable under Chapter XXX, Chapter
XXXIII or Chapter XXXVI of the Penal Code; or
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(e) habitually commits or attempts to commit, or aids or abets in the
commission of, offences involving a breach of the peace; or
(f) is so desperate and dangerous as to render his being at large
without security hazardous to the community; or
(g) is a member of an unlawful society within the meaning of section
4(1) of the Societies Act (Cap 108),
the magistrate may, in the manner hereinafter provided, require that person to
show cause why he should not be ordered to execute a bond, with sureties, for
his good behaviour for such period, not exceeding three years, as the magistrate
thinks fit, or why an order (hereinafter in this Part referred to as a restriction
order) should not be made that he be taken to the district in which his home is
situated and be restricted to that district during a period of three years:
Provided that where a magistrate is of the opinion that, having regard to all
the circumstances of the case, it is desirable that the person be restricted to
some other district he may specify that the person shall be so restricted.
[Act No. 57 of 1955, s. 4, Act No. 25 of 1971, Sch.]
47. Order to be made
When a magistrate acting under section 43, section 44, section 45 or section
46 deems it necessary to require a person to show cause, he shall make an
order in writing setting out—
(a) the substance of the information received;
(b) in the case of a restriction order, the district to which the person
concerned is to be restricted for a period of three years;
(c) in any other case—
(i) the amount of the bond to be executed;
(ii) the term for which it is to be in force; and
(iii) the number, character and class of securities, if any, required.
[Act No. 33 of 1958, s. 3, Act No. 25 of 1971, s. 6.]
48. Procedure in case of person present in court
If the person in respect of whom an order under section 47 is made present in
court, it shall be read over to him or, if he so desires, the substance thereof shall
be explained to him.
49. Summons or warrant in case of person not so present
If the person in respect of whom an order is made under section 47 is not
present in court, the magistrate shall issue a summons requiring him to appear,
or, when the person is in custody, a warrant directing the officer in whose
custody he is to bring him before the court:
Provided that, whenever it appears to the magistrate upon the report of a
police officer or upon other information (the substance of which report or
information shall be recorded by the magistrate) that there is reason to fear the
commission of a breach of the peace, and that a breach of the peace cannot be
prevented otherwise than by the immediate arrest of the person, the magistrate
may at any time issue a warrant for his arrest.
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50. Copy of order under section 47 to accompany summons or warrant
Every summons or warrant issued under section 49 shall be accompanied by
a copy of the order made under section 47, and the copy shall be delivered by
the officer serving or executing the summons or warrant to the person served
with or arrested under it.
51. Power to dispense with personal attendance
The magistrate may, if he sees sufficient cause, dispense with the personal
attendance of a person called upon to show cause why he should not be ordered
to execute a bond for keeping the peace, and may permit him to appear by an
advocate.
52. Inquiry as to truth of information
(1) When an order under section 47 has been read or explained under
section 48 to a person present in court, or when any person appears or is
brought before a magistrate in compliance with or in execution of a summons or
warrant issued under section 49, the magistrate shall proceed to inquire into the
truth of the information upon which the action has been taken, and to take such
further evidence as may appear necessary.
(2) The inquiry shall be made, as nearly as may be practicable, in the manner
prescribed by this Code for conducting trials and recording evidence in trials
before subordinate courts.
(3) For the purposes of this section, the fact that a person comes within the
provisions of section 46 may be proved by evidence of general repute or
otherwise.
(4) Where two or more persons have been associated together in the matter
under inquiry they may be dealt with in the same or separate inquiries, as the
magistrate thinks just.
53. Order to give security
(1) If upon an inquiry it is proved that it is necessary for keeping the peace or
maintaining good behaviour that the person in respect of whom the inquiry is
made should be made subject to a restriction order or should execute a bond,
with or without sureties, the magistrate shall make an order accordingly:
Provided that—
(i) no person shall be ordered to give security of a nature different
from, or of an amount larger than, or for a period longer than, that
specified in the order made under section 47;
(ii) the amount of a bond shall be fixed with due regard to the
circumstances of the case and shall not be excessive;
(iii) when the person in respect of whom the inquiry is made is a minor,
the bond shall be executed only by his sureties.
(2) A person in respect of whom an order is made under this section may
appeal to the High Court, and the provisions of Part XI (relating to appeals) shall
apply to the appeal.
[Act No. 22 of 1959, s. 9, Act No. 25 of 1971, Sch.]
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54. Discharge of person informed against
If on an inquiry under section 52 it is not proved that it is necessary for
keeping the peace or maintaining good behaviour that the person in respect of
whom the inquiry is made should be subject to a restriction order or should
execute a bond, the magistrate shall make an entry on the record to that effect,
and, if the person is in custody only for the purposes of the inquiry, shall release
him, or, if he is not in custody, shall discharge him.
[Act No. 25 of 1971, Sch.]
Proceedings in all Cases Subsequent to Order to Furnish Security
55. Commencement of period for which security is required
(1) If a person in respect of whom an order is made under section 47 or
section 53 is, at the time the order is made, sentenced to or undergoing a
sentence of imprisonment, the period of such order shall commence on the
expiration of the sentence.
(2) In other cases the period shall commence on the date of the order unless
the magistrate, for sufficient reason, fixes a later date.
[Act No. 25 of 1971, Sch.]
56. Contents of bond
The bond to be executed by a person shall bind him to keep the peace or to
be of good behaviour, as the case may be, and in the latter case the commission
or attempt to commit or the aiding, abetting, counselling or procuring the
commission of an offence punishable with imprisonment, wherever it may be
committed, shall be a breach of the bond.
57. Power to reject sureties
A magistrate may refuse to accept a surety offered under any of the preceding
sections of this Part on the ground that, for reasons to be recorded by the
magistrate, the surety is an unfit person.
58. Procedure on failure of person to give security
(1) If a person ordered to give security does not give security on or before the
date on which the period for which security is to be given commences, he shall,
except in the case mentioned in subsection (2), be committed to prison, or, if he
is already in prison, be detained in prison until that period expires or until within
that period he gives the security to the court or magistrate who made the order
requiring it.
(2) When a person has been ordered by a magistrate to give security for a
period exceeding one year, the magistrate shall, if the person does not give
security, issue a warrant directing him to be detained in prison pending the
orders of the High Court, and the proceedings shall be laid as soon as
conveniently may be before that court.
(3) The High Court, after examining the proceedings and requiring from the
magistrate any further information or evidence which it thinks necessary, may
make such order in the case as it thinks fit.
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(4) The period, if any, for which any person is imprisoned for failure to give
security shall not exceed three years.
(5) If the security is tendered to the officer in charge of the prison, he shall
forthwith refer the matter to the court or magistrate who made the order, and
shall await the orders of the court or magistrate.
[Act No. 26 of 1957, s. 2.]
59. Power to release persons imprisoned for failure to give security
Whenever a magistrate empowered to hold a subordinate court of the first
class is of the opinion that a person imprisoned for failing to give security may be
released without hazard to the community, the magistrate shall make an
immediate report of the case for the orders of the High Court, and that court may
order the person to be discharged.
60. Power of High Court to cancel bond
The High Court may at any time, for sufficient reasons to be recorded in
writing, cancel any order made under section 47 or section 53.
[Act No. 25 of 1971, Sch.]
61. Discharge of surities
(1) A surety for the peaceable conduct or good behaviour of another person
may at any time apply to a magistrate empowered to hold a subordinate court of
the first class to cancel a bond executed under any of the preceding sections of
this Part within the local limits of his jurisdiction.
(2) On the application being made, the magistrate shall issue his summons or
warrant, as he thinks fit, requiring the person for whom the surety is bound to
appear or to be brought before him.
(3) When the person appears or is brought before the magistrate, the
magistrate shall cancel the bond and shall order the person to give, for the
unexpired portion of the term of the bond, fresh security of the same description
as the original security.
(4) Every such order shall for the purposes of sections 56, 57, 58 and 59 be
deemed to be an order made under section 53.
61A. Breach of restriction order
A person who, whilst subject to a restriction order, is found outside the district
named in the order without the written permission of the chief officer of police of
the district, or who fails to comply with any condition attached to that permission,
shall be guilty of an offence and liable to imprisonment for a term not exceeding
twelve months.
[Act No. 25 of 1971, s. 7.]
PREVENTIVE ACTION OF THE POLICE
62. Police to prevent cognizable offences
A police officer may interpose for the purpose of preventing, and shall to the
best of his ability prevent, the commission of a cognizable offence.
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63. Information of design to commit such offences
A police officer receiving information of a design to commit a cognizable
offence shall communicate that information to the police officer to whom he is
subordinate, and to any other officer whose duty it is to prevent or take
cognizance of the commission of the offence.
64. Arrest to prevent such offences
A police officer knowing of a design to commit a cognizable offence may
arrest, without orders from a magistrate and without a warrant, the person so
designing, if it appears to the officer that the commission of the offence cannot
otherwise be prevented.
65. Prevention of injury to public property
A police officer may of his own authority interpose to prevent injury attempted
to be committed in his view to public property, movable or immovable, or the
removal of or injury to any public landmark or buoy or other mark used for
navigation.