ARREST: WITH OR

WITHOUT WARRANT
 What are some of the legal principles?
 Types of Arrests
 Cite relevant sections of the law and case law
 What are some of the rights of an arrested person during,
after arrest and in police custody
Meaning of Arrest
• CPC does not define what arrest is.
• Arrest loosely refers to the lawful mechanism by which persons suspected of having
committed criminal offences may be apprehended, restrained and brought before court to
be dealt with in accordance with the law.
• The Black Law dictionary defines an arrest as to deprive a person of his liberty by legal
authority.
• In the case of Hussein v Chang Fook [1972] 2 WLR 441: an arrest occurs when police
officer states in certain terms that he is making an arrest; or occurs when an officer uses
force to restrain the individual concerned; or occurs when by works or conduct the officer
makes it clear that he will use force if necessary to restrain the individual from going
where he wants to go; but does not occur where he stops an individual to make inquiries.
• Therefore, a police officer need not tell you that you are under arrest for you to be under
arrest, so long as their conduct is indicative of the fact that you are under arrest, they then
have to explain the reason for the arrest. When making an arrest, the policeman or any
person effecting the arrest may touch or confine the body of the person being arrested,
unless the person being arrested voluntarily submits to custody by word or action.
How is the Arrest to be conducted: S. 21
of CPC

• (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.
Section 24: No Unnecessary Restriant

“The person arrested shall not be subjected to more restraint than

is necessary to prevent his escape”.
General Provisions on arrests: S. 22 of CPC
A person arresting or a police officer entitled to arrest has the right to enter(ingress) to
effect an arrest and the owner of the house under a duty allow free ingress. S. 22(1)
Where ingress is not possible, a police officer at liberty to break in
• with a warrant.
• Without a warrant to prevent the escape of the person before issuance of warrant. S. 22(2)
A police officer can break out to liberate himself or any person who had entered to
effect an arrest but is detained. S. 23
Breaking action valid only:
He has made a notification
Has stated his purpose
Has made a demand for admittance
Has been denied or is otherwise unable to gain admittance
Search of a person arrested and

• S. 24: safe custody of her articles

The police officer may search that person arrested and place in safe custody all articles,
other than necessary wearing apparel, found upon him.
• S. 26(1) Any vessel, aircraft or vehicle may be stopped, detained and searched
where there is reasonable suspicion of anything stolen or unlawfully obtained
or anything that has been used to facilitate the commission of an offence.
• The same can be done to any person who may be reasonably suspected of
having in his possession or conveying in any manner anything stolen or
unlawfully obtained.
• S. 26(2): State not to incur no liability for damage or loss incurred by the
detention of the vessel, vehicle or aircraft
Search of a woman: S. 27
• Police officer to ensure that the search of a woman is carried out
by another woman with strict regard to decency.
• How about a woman police officer searching a man? Whats the
law?
• S. 28: weapons uncovered to be delivered to the court or to
superior officer
Arrests without a Warrant or order by a
Magistrate: S. 29
• 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;
Meaning of a cognizable offence
• According to section 2 of the CPC “Cognizable offence” means
an offence for which a police officer may, in accordance with the
First Schedule or under any law for the time being in force,
arrest without warrant.
• Examples of cognizable offences are aiding a prisoner of war
escape, riot, offences related to judicial proceedings, rape, etc.
• In Republic -v- Hussein (1990) KLR, 497, murder was found to
be a cognizable offence hence a police officer could arrest
without a warrant.
Arrest of persons taking precaution to
commit and offence
• S. 30: any suspicious self-concealers within the police station
planning to commit a cognizable offence may be arrested
Arrest for Non-cognizable
offences/giving false name and residence
• a person may be arrested where he has committed or is accused of a
non-cognizable offence and is in the presence of a police officer and
gives a false name and residence.
• Where name and residence is established, he can be released on
bond.
• Where name and residence not ascertained in 24 hours, to be taken
to the nearest magistrate
Person arrested to be taken to the nearest
magistrate or officer in charge without delay
• S. 33. the police officer who arrests should, subject to bail
conditions take the arrested person before the nearest
magistrate with jurisdiction or police officer in charge of a
police station.
Citizen’s arrest: s. 34
• (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.

• (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.
Arrest by citizen…
• S. 35: the arrested person must be expeditiously taken to a
police officer or a police station to be re-arrested.
• The police officer may release the person where no offence is
committed.
No unreasonable force

• If a private individual uses unreasonable force in arresting a suspect and

in the process causes the suspect’s death, he is liable to be prosecuted. In
Uganda v. Muherwa a private person used a weapon to incapacitate the
deceased who was suspected to be a thief in the course of which he died.
As a result, the person was prosecuted and convicted of manslaughter.
• In Beard and Another v. R the appellants, acting in their private capacity
as private individuals arrested the complainant and tied him up although
he had made no attempt to escape. They delayed handing him over to the
police as a result of which the complainant suffered injuries.
Consequently, the appellants were prosecuted on charges of assault and
wrongful confinement and convicted for using unnecessary force.
Detention and/or release on bond
• S. 36: Where a person is taken into custody upon arrest without
a warrant
• The OCS may release him/her
• Upon execution of a bond of a reasonable amount
• With or without sureties to appear before court at a future date.
• Provided that:
• The offence is not a capital offence (murder, treason, robbery with
violence) and attempted robbery with violence
• It is not practicable to bring the person before court within 24 hours
• The offence is not of a serious nature
Arrest without a warrant by a magistrate
• Section 38 of the CPC provides 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, subject to the provisions of the CPC as to
bail, commit the offender to custody.

• Under section 39, 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.
Recapture of person escaping: S. 40
• A person escaping lawful custody may be arrested without a
warrant of arrest.
Every person is bound to assist a police
officer or magistrate to effect an arrest. S.42
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.
Further Remand by Court/Reasons for
Detention Continuing: S36A
• S36A(1): a person to be presented to Court within 24
hours.
• s36A(2): if a police officer reasonably believes further the
detention is necessary:
• Must produce the suspect before the court
• Apply in writing to the court for an extension of time
to hold the suspect in custody
Contents of the Application for further
detention: S36(3)
• Notice of Motion
• Supported by an affidavit indicating:
• (a) the nature of the offence for which the suspect has been
arrested;
• (b) the general nature of the evidence on which the suspect
has been arrested;
• (c) the inquiries that have been made by the police in relation
to the offence and any further inquiries proposed to be made
by the police; and
• (d) the reasons necessitating the continued holding of the
suspect in custody.
What the Court is to consider in granting
the extension: S36(4)

• Objection of the suspect may raise.

• The Court can:
• Release the suspect unconditionally
• Make an order for the remand of suspect
• Release the suspect and impose conditions
under subsection 4(b)
 S. 36(5) Compelling reasons
(5) A court shall not make an order
for the remand in custody of a
suspect under subsection (5)(c)
unless—

(a) there are compelling reasons for believing that the suspect shall not appear for trial, may
interfere with witnesses or the conduct of investigations, or commit an offence while on release;

(b) it is necessary to keep the suspect in custody for his protection, or, where the suspect is a minor, for his welfare;

(c) the suspect is serving a custodial sentence; or

(d) the suspect, having been arrested in relation to the commission of an offence, has breached a condition for his release.
Extension of time
• The Court may require a suspect to execute a bond
• Where a court makes an order for the remand of a suspect
under subsection (4)(c), the period of remand shall not exceed
thirty (30) days.
• A police officer may apply to the Court for an extension of that
period.
• Where the court grants an extension under subsection (9), such
period shall not, together with the period for which the suspect
was first remanded in custody, exceed ninety days.