Criminal Law: Can police search your house or office without a warrant in Kenya

Let’s start with a basic. What is a search warrant? A search warrant is a court order that a magistrate, Judge or Court issues that authorizes law enforcement officers to conduct a search of a person, location or vehicle for evidence of a crime and to confiscate illegal items or evidence of crime, if they find any.

In order toget a search warrant, the police must convince a judge that there isevidence of a crime at that place and if the judge is convinced, he shall issue a warrant and the warrant must be very specific, as it should clearly state where exactly the search should take place, including a specific date and time.

The Kenyan Constitution gives protection to the accused person against testifying against themselves which implies protection of citizens from unreasonable searches.

The power to issue search warrant should be exercised with all the care and circumstances. According To the provisions of the Criminal Procedure Code, search warrant can be issued under specific circumstances.

The answer of the question as to whether police can search your house without warrant is “Yes”. The police can enter your private residence or office without a warrant, but only under very limited circumstances.

If a police investigation leads them tobelieve that there is an object which counts as evidence, that they must procure immediately, or if there is a criminal hiding in your house who might flee, then they can enter without a warrant so that they may secure the evidence or felon without any delay.

Under non-emergency circumstance, if the police have reasonable grounds to suspect that you are harbouring a suspect, conducting illegal activities, are hiding stolen goodsor evidence or have an illegal weapon in your home then they must first obtain a warrant from amagistrate before they can enter your home.

It is not a good idea to restrict the police from searching if they demand to search your house or office even if they do not have an warrant to do so, since they can use force with impunity and later on justify the search under the Criminal Procedure Code.

They can also arrest you for obstruction of a police officer, which is an offence.At best, you may demand that a police officer be present during the search. You can also demand that respectable civilian people in the area be present during the search. Also, the police should prepare a seizure list and make you sign the same.The real danger is that one may plant evidence against you during asearch and police may use this against you in a case. This is why, if possible searches should be video recorded.If search is not video recorded and it appears that evidence has been planted against you – the best recourse you have is in the court oflaw, and it is unlikely that you will be able to reason with the police.It is possible to demand that your lawyer, if immediately available, be present during a search. In fact, it is a great idea to have a good lawyer present during a raid or search of your premises.