Section 21 CPC makes provisions for what an arrest is, the police officers are allowed to have bodily contact with the person that they are arresting. Section 21 (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. They will touch you and handcuff the suspect.
Section 21(2) is if a suspect resists arrest the police officer may use all means necessary to effect the arrest. The key word is forcibly resisting arrest, if one is not forcibly resisting arrest, the force used by the police to arrest the suspect will be different with when arresting a suspect trying to evade arrest, reasonable force is measured against the kind of resistance that a person is demonstrating against the police. The police cannot justify shooting a suspect on the head if they are running away but if they shot on the leg they can argue that that was reasonable force. What is reasonable depends on the particulars of the case, there are no hard and fast rules to govern all inevitable circumstances. Where the force used is unreasonable, the police officer is liable to be charged with offences arising from their attempts to arrest a suspect.
Sometimes apprehension is by the citizens and where this happens the police have to re-arrest the person and make a report in the OB as pertaining to the circumstances of the arrest. The police have to establish whether an offence has been committed. In the case where somebody is supposed to be arrested and they are hiding, Section 22(1) gives provision that if any person, acting under warrant of arrest or any police 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 he person so acting or the police officer, allow him free ingress thereto and afford all reasonable facilities for a search therein.
A warrant of arrest must be issued by the Court. The police go to court and make an application to be issued with a warrant of arrest and if satisfied the court will issue a warrant of arrest. Section 22 deals with issuing of the warrant. The police are given the authority to require of a 3rd party who is not a suspect but is harbouring a suspect to make way and give access for the arrest of the suspect. 22(2) states it is lawful for the police officer to break open any outer or inner door of police. Police are given powers to break in. the break in does not have to be in the residence of the suspect it could be anywhere. Before the break is conducted the police officer or the person effecting the warrant should give notice of his authority and purpose and demand for admittance. In Kenya this is not evident in practice, hardly any notice is issued but if someone makes a complaint, that police used unnecessary force, one seek redress from court. the notice is effected verbally and orally and at the scene.
There is a proviso to this section that provides that if the place is an apartment of a woman who is not the suspect …. The police shall give notice to the woman to withdraw and afford her time to withdraw. This provision is to protect a cultural right that some women have so that it may not be violated.
Section 23 makes provision where the police may have entered into the house and they are locked in. once again they are given authority to break out.
Section 24 makes provisions for persons already arrested not to be subjected to more restraint than necessary. It means that if somebody is cooperating there is no reason to actually use restraint like handcuffs on them. Where members of the public make arrest, since they don’t have handcuffs they usually tie suspects in ropes, this provision do not allow use of violence in the arrest of a suspect and the only authority to use force is only where there is resistance.
After somebody is arrested Section 25 makes provisions for the search of anyone who is arrested. These provisions will later be tied to the provisions on bail. Police have power to release a suspect on bail and it is only where there are compelling reasons, the accused may be denied bail.
Where upon search the police finds something else not part of what they were searching, the police have power to arrest the suspect on this other offence, for example if they were searching for drugs and found a gun they are allowed to charge you for having an illegal firearm. The police are given power to make searches of places that could be used to conceal criminal activities. Under Section 26 police are given powers to detain and search vehicles, aircrafts etc. they may stop, search and detain. These powers are not given generally to the public the power to arrest is not given to private citizens, these powers can only be exercised by police or private citizens who have been authorised by the commissioner of police and they can stop, search and detain, but they must have reasonable suspicion that something illegally acquired is in the vehicle.
26(b) – any aircraft, vehicle or vessel which there is reason to suspect has been employed in the commission or to facilitate an offence – the powers can be used even after the fact where it is suspected that an offence has already been committed.
26(2) No person shall be entitled to damages for loss suffered by him in respect of detention of an aircraft or vehicle. These provisions appear draconian as they give police a lot of powers, where police can detain a vehicle for even up to a week and if one is in business they are likely to suffer and have no way to challenge the decision or apply for compensation.
Section 27 makes specific provisions on how women are to be searched. Whenever it is necessary the search is to be made by another woman with strict regard to decency.
Section 28 makes specific provisions about the power to seize offensive weapons so that in the course of making an arrest the officer can take the offensive weapon, and hand them over to the respectful persons. The lacuna is that there is no guarantee that the person from whom the offensive weapon is taken will be charged with possession of offensive weapon, what really consists an offensive weapon? If the police consider that it amounts to a criminal offence to be in possession of the weapon, they may charge one with possession of an offensive weapon.
In Kenya if the police wanted to search a premise without a warrant, one can go to court and complain, but usually police will go to court and obtain a warrant. Under the Evidence Act there are provisions that where evidence is unlawfully obtained it cannot be used in court.
A warrant of arrest can also issue against witnesses.
Section 102 provides for a warrant of Arrest. It states that every warrant of arrest shall be under the hand or a Judge or a Magistrate issuing it. This means it must be in writing and bear the seal of the court and state the offence for which it is being issued. It shall also state the name and who is supposed to implement that warrant of arrest, it can be addressed to the Officer in charge of a police station and it will also state that whoever the warrant is addressed to shall apprehend the person against whom it is issued and that person will then be taken to court.
The warrant is directed to the Police Officer against the suspect and the witness. The warrant will stay in force until it is executed. If the warrant is issued the court will make an order and it shall be mentioned in 14 days time, if the person is not apprehended the court will keep on mentioning until the suspect is brought before court.
Under Section 103(1) the court issuing a warrant in respect of an offence other than murder, treason or rape may direct by endorsement on the warrant that, if the person executes a bond with sufficient sureties for his attendance, the endorsement will state the number of sureties and the time at which the suspect is to attend court will be indicated. The court is the one that sets the bail terms. Court has discretion to determine the kind of bail they can award to the suspect. Whenever security is taken the officer to whom the warrant is directed shall forward the bond back to the court. bail is an agreement between the accused and court that the accused shall appear when required in court. sureties are also an agreement that they guarantee that the accused shall appear in court when required.
Section 104 says that the warrant may be directed to one or more police officers within which the court has jurisdiction or generally to all police officers of the area.
For example if it is desired that one has to be arrested immediately and the court cannot get the police officer to execute the warrant the court can direct the warrant directly to the Kenya School of Law to execute it. Even land owners can have warrants directed at them for execution. In practice the court will issue a warrant and direct it to the OCS, it is the OCS who direct a certain officer to execute the warrant.
The officer shall notify the substance thereof to the suspect to be arrested, it means that when one is to be arrested they must go to the suspect and tell them they have a warrant and explain for what the warrant has been issued. The idea is that the practice should be to show the suspect the warrant of arrest, it is fundamental that a suspect should know the substance of the complaint against them. There should be no ambush by the process, a suspect must be well aware of what they are being arrested for.
Once somebody has been arrested, the police officer shall without unnecessary delay bring the suspect to court without delay. If the warrant of arrest is issued in Nairobi and it is circulated all over the country so that any police officer who receives the warrant wherever they are can arrest the suspect. The police if they cannot take you back where the suspect is required can take you to the nearest court so that a suspect is not unduly kept in police custody awaiting action by a specific court.
Section 123 gives power to the police to issue bail at the police station.
Once a suspect is taken to court depending on why the warrant was issued, a plea will be taken and depending on the kind of charges a suspect may be released on bond. If one is a witness and they didn’t come to court having been bonded the court deals with one based on the confines of the law and the court can decide whether or not to penalise for failing to come to court or to just warn. If the court decides to penalise, they can fine one, or imprison one or whatever it deems fit.