Conducting a Citizens Arrest
An arrest involves limiting someone's movement. A citizen's arrest is therefore the limiting of someone’s movement by an ordinary citizen, who is simply a person that is not a state officer. You can conduct a citizen’s arrest in various situations; when you suspect someone of committing a crime, when someone damages your property, when a criminal passes through your land, when a magistrate or judge orders you to arrest someone, and when a suspect does not appear at their trial. The Laws of Kenya that are relevant to this topic are the Criminal Procedure Code (CPC) and the Penal Code (PC). These laws allow you to carry out a citizen’s arrest with and without a warrant depending on the situation.
In summary, you can arrest without a warrant when;
You suspect someone of committing a crime,
A magistrate orders you to arrest someone
When someone damages your property.
You are required to get a warrant of arrest to arrest when;
A suspect does not come to their court trial
If a wanted criminal might pass through your land.
The information below goes into more detail on the requirements and processes
Step 1: Arrest without warrant
Section 34 gives situations where it is acceptable for an ordinary citizen to arrest another without a warrant;
‘ When the ordinary citizen believes that the suspected person has committed a cognizable offence or a felony.’
A cognizable offence is an offence in which a police officer may conduct the arrest without a warrant. Cognizable offences are included in the First Schedule of the Criminal Procedure Code (CPC). The CPC is the legislation in Kenya that contains the procedure of dealing with crimes. In the table of the First Schedule of the CPC, it is written that one “may arrest without warrant” for various offences.
A felony is an offence that has been described as a felony by the law or has a sentence of the death penalty or imprisonment for three or more years. This is provided by The Penal Code (PC). The Penal Code also contains the offences and their punishments:
‘ When the owner, servant or persons authorized by the owner (for example someone who has a lease) finds a person committing an offence involving injury to property belonging to the owner, they may arrest the person without a warrant.’
An ordinary citizen can also arrest another person if ordered to do so by a magistrate who witnessed the person committing an offence which is stated in Section 38 of the CPC.
If the ordinary citizen arrests a person without a warrant, they have to hand over the person to a police officer, or in the absence of a police officer, take the person to the nearest police station. This is provided for by Section 35 of the Criminal Procedure Code. The arrested person will immediately be released if no sufficient reason to believe they have committed an offence exists.
If at the police station, sufficient reason is found, the arrested person is to be brought before the court within twenty-four hours. However, if the twenty-four hours come to an end outside an ordinary court day (Monday-Saturday) or hour (8 am- 5 pm), they can be brought at the end of the next court day.
Step 2: Arrest with a warrant
A warrant of arrest is an order given by a judge or a magistrate allowing a police officer(s) or person(s) to take another person into their custody if they fail to appear in court at an appointed time concerning an offence he committed.
Section 104 of the CPC states that a magistrate or judge is allowed to issue a warrant to one or more persons or police officers. It also states that if the warrant is issued to one or more police officers or persons, it may be executed by all or any one or more of them.
Warrants can also be directed to landholders, as per Section 105 of the CPC, to allow them to arrest a wanted criminal passing through their land.
Section 102 of the PC gives us the contents of a warrant which includes;
Seal of the court
Signature of the magistrate
The offence being charged
Name or description of person it is issued against
Name of the person to conduct the arrest
An order involving the person conducting the arrest to bring the arrested person before the court to answer the charge
A Magistrate or Judge can issue a warrant to you to conduct the arrest of the person failing to appear before the court, or you can request the warrant from the judge or magistrate.
Section 22 of the CPC allows the person conducting the arrest (with or without a warrant) to search any premises where the person to be arrested is believed to be. It also states that the resident of that premises must allow the citizen or the officer conducting the arrest free entry (ingress) into the area. If such entry is not given, the citizen or officer may break any inner or outer door or window and enter. Section 23 allows the citizen or officer to break out of the premises they entered to make the arrest, to liberate themselves.
When conducting the arrest, one is required to notify the person to be arrested of the substance of the warrant and if the person requests, to show it to him. Refer to Section 107 of the CPC. Furthermore, Section 21 permits the use of reasonable force to carry out the arrest but only force that is necessary to prevent the escape of the arrested (Section 24 of the CPC). Should the arrested person escape or be rescued from custody, the person or officer conducting the arrest is given authority to recapture them by Section 40.
Note that a warrant can be executed at any date and time including Sunday.
After conducting the arrest with a warrant, The police officer making the arrest or the police officer that a private person handed over the arrested person to, may search the arrested person and place in safe custody all articles other than his necessary clothes. This is warranted by Section 25 of the CPC. The police officer must bring the arrested person before the court without delay according to Section 108 of the CPC.
For reference find links to the Criminal Procedure Code and the Penal Code below.
Criminal Procedure Code (CPC): KEN85001.pdf (ilo.org)
Disclaimer: This document is not to be taken as legal advise.