Kenya: Police Should Not Arrest People Then Begin Investigations, Court Rules

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The High Court has warned the police against unlawful or arbitrary arrests of suspects as a starting point for investigations.

Sitting in Malindi, Justice Reuben Nyakundi on Monday ruled that it's a breach of the law to take people into custody, then begin looking for evidence.

He said this illegal act is witnessed in courts by the many applications for further detentions to gather evidence against suspects.

"The unjustifiable and unlawful use of arrest as a starting point to commence investigations is a violation of the fundamental rights to human dignity and liberty entrenched in our constitution," said the judge.

Justice Nyakundi noted that the propensity for the police to deprive suspects and accused persons of their liberty before the conclusion of investigations to a criminal case is one of the challenges that the courts have been struggling with.

"The court must of necessity examine the relevant facts and circumstances of effecting an arrest of a suspect, more so those done without warrants. Not only must the suspicion be objectively justified, but a cognisable offence must be suspected. It is not enough that suspicion is of some vague conduct," he added.

The court said police are supposed to gather evidence on a suspected offence committed, then arrest the perpetrators, but not arrest and start looking for evidence against them.

The judge said this while delivering a ruling in a case in which five people rushed to court for anticipatory bail. They feared arrest over a land matter that's pending before the Environment and Land Court.

Justice Nyakundi granted Omar Kahindi, Elisha Kahindi, Martin Gona, Katana Patrick and Samuel Ngolo an anticipatory bail of Sh100, 000 each.

They said the police were planning to arrest them even before the conclusion of investigations. They argued that the matter is still active in court, adding that it should be concluded before any action is taken.

Justice Nyakundi agreed that their arguments were well-founded in law.

"In the instant motion, the applicants have demonstrated a prima facie case on well-founded fear that their arrest is ill-advised and likely to result in the pre-trial detention without bail," said the judge.

He noted that there is an overriding interest on the part of the applicants to resolve the land dispute pending before the courts, which directly impacts the criminal investigations.

"Given the concerns expressed in this application on the use of arrest against the applicants, there is a surprising lack of information on the part of the respondents," he added.

Justice Nyakundi also noted that no evidence had been availed by the police or corresponding investigating agency on the suspicion to effect arrest without a warrant.

"In absence of any rejoinder from the cited state agencies, there is an inference that the intended arrest albeit the good intention on their part is unlawful and arbitrary," the judge said.

The Office of the Director of Public Prosecutions and that of the Attorney-General did not enter appearance nor file documents in response to the application.

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