An arrest involves the act of limiting a person’s movement. This power, however, is held not only by the police but also by citizens in Kenya.
A citizen also has the legal authority to make a citizen’s arrest, a process governed by the Criminal Procedure Code and the Penal Code.
Section 34 of the Criminal Procedure Code allows a private person to arrest anyone who commits a crime for which the police may arrest without a warrant.
“A citizen’s arrest is the limiting of someone’s movement by an ordinary citizen, who is simply a person who is not a state officer.” Criminal Procedure Code states.
Furthermore, a citizen may arrest someone who is reasonably suspected of having committed a serious crime punishable by death or imprisonment for 3 years or more.
Additionally, ordinary citizens must act if a magistrate orders them to arrest an offender who, in the magistrate’s view, committed a crime.
Making a citizen’s Arrest with a Warrant
Although the law allows a citizen to make an arrest, in some instances, a legal document or warrant of arrest may be required before acting if a suspect fails to appear for trial.
If the arrest is based on a warrant, the citizen must notify the suspect of the substance of the warrant, and the suspect should be allowed to see the warrant upon request.
Making a citizen’s arrest requires a specific physical and verbal process, and to effect the citizen’s arrest, the citizen must actually touch or confine the body of the person.
However, the physical act is not required if the suspect submits to custody through words or actions.
The law, however, strictly regulates the use of force during an arrest, allowing a citizen to use reasonable force to complete the arrest.
Additionally, the arrested person must not be subjected to more restraint than necessary to prevent them from fleeing.
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Powers of Search and Seizure
Section 22 of the Criminal Procedure Code allows the arrestor to search any place where they believe the suspect is hiding, and the person in charge of that place is legally required to allow free entry.
If entry is denied, the citizen may break open inner or outer doors or windows to get inside.
During the arrest, the citizen may also take any offensive weapons found on the suspect and deliver them to the police or the court.
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Rights of the Arrested
Every person arrested in Kenya has fundamental rights under Article 49 of the Constitution, and the citizen making the arrest must ensure that these rights are not violated.
Additionally, the suspect must be informed promptly, in a language they understand, of the reason for their arrest and have a right to remain silent, with the arrestor explaining the consequences of not remaining silent to the suspect.
“An arrested person has the right to be informed promptly, in language that the person understands, of the reason for the arrest.” Article 49 of the Constitution states.
Moreover, the arrested person has the right to communicate with an advocate and should not be forced to make a confession that could be used as evidence against them.
After making a citizen’s arrest, the suspect must be brought before a court within 24 hours of the arrest; if the 24-hour period ends on a weekend or outside court hours, they must be brought to court by the end of the next court day.
Suspect Handover and Legal Obligations
A citizen cannot hold a suspect indefinitely; the law requires that, after an arrest without a warrant, the citizen hand the suspect over to a police officer or the nearest police station.
If a person in lawful custody attempts to escape, the citizen who had made the arrest may immediately pursue them.
Additionally, during such a pursuit, the citizen retains the authority to search premises and enter buildings to retake the suspect.
