Arrest is a highly stressful event. In such circumstances, individuals frequently make errors such as physically resisting, providing unsolicited information, or signing documents they do not fully understand. These actions can significantly undermine their legal position.
It is not widely appreciated that the Constitution confers enforceable rights on every arrested person, and imposes clear legal obligations on the police. These rights and obligations apply uniformly, regardless of the location or circumstances of the arrest.
This guide sets out the relevant legal provisions, the obligations imposed on the police, and the steps that should be taken by an arrested person or their family members.
The Legal Framework: Articles 49 and 50 of the Constitution
Chapter Four of the Constitution of Kenya, 2010, the Bill of Rights contains two provisions that govern every arrest and prosecution in the country:
- Article 49: The rights of arrested persons: the protections that apply from the moment of arrest.
- Article 50: The right to a fair hearing: the protections that apply once charges are brought and the case proceeds.
Together, they form the backbone of criminal procedure in Kenya, and they are backed by the criminal justice system's strongest remedies: evidence obtained in violation of these rights can be excluded, and unlawful detention exposes the state to liability.
Your Rights Immediately After Arrest: Article 49 Explained
Article 49 lists the rights of every arrested person. Let's take each one in turn.
1. The Right to Be Informed of the Reason for Arrest
You must be informed promptly, and in a language you understand, of the reason for your arrest. "You are under arrest" is not enough; the police must tell you why.
Practical tip: Ask directly and calmly, "What is the reason for my arrest?" The answer matters; it determines whether the arrest is lawful and shapes everything your lawyer does next.
2. The Right to Remain Silent
You have the right to remain silent, and the police must caution you before questioning you, telling you that anything you say may be used as evidence against you.
This right is absolute. An arrested person cannot lawfully be punished, charged with further offences, or subjected to adverse treatment for exercising the right to silence. In practice, exercising this right at the police station is critical, as statements made under stress frequently constitute the most damaging evidence in criminal proceedings.
3. The Right to an Advocate — Present During Questioning
You have the right to communicate with an advocate and to have one present during questioning. This is a constitutional right, not a favour the police may grant or withhold.
Where a person cannot afford an advocate, the state is required to assign one if substantial injustice would otherwise occur. However, it is advisable to contact your own advocate at the earliest opportunity.
4. The Right to Contact Family
An arrested person has the right to have a family member or friend informed of the arrest, and to communicate with them. Exercising this right enables relatives to secure legal representation, provide necessary items, and monitor the detainee's welfare.
5. Humane Treatment
An arrested person is entitled to humane treatment at all times, and must not be subjected to torture, cruel, inhuman or degrading treatment, or punishment prior to conviction. Any injury sustained in custody should be recorded and reported, as such records may support both a defence and a claim against the state.
6. Separation From Convicted Prisoners
You have the right to be held separately from persons serving sentences. Holding an unconvicted detainee among convicted prisoners is a violation of your rights.
7. The Right to Bail or Bond
An arrested person hasted person has the right to be released on bond or bail on reasonabpending determination of the case, unlessf the case, unless cexist ompelling reasons exist to justify contitheued detention. Bail is position and is not a discretionary privilege of the prosecutionscretionary privilege of the prosecution.
8. The 24-Hour Rule: Court or Release
Perhaps the most important deadline in Kenyan criminal procedure: an arrested person must be brought before a court as soon as reasonably possible, but not later than:
- 24 hours after arrest for most offences, or
- By the end of the first court day if the 24 hours ends outside ordinary court hours.
Detention beyond these time limits without production before a court is unlawful. An advocate may secure release on this ground alone.
Your Rights Once Charged: Article 50
Once charges are brought, Article 50 guarantees:
- The presumption of innocence until proven guilty
- A fair, public hearing before an independent and impartial court
- Adequate time and facilities to prepare your defence
- Legal representation of your choosing
- A free interpreter if you cannot understand the language used at trial
- The right to examine witnesses and to obtain the attendance of witnesses on your behalf
What You Should Do: A Step-by-Step Protocol
At the Moment of Arrest
- Remain calm and do not physically resist arrest, even if the arrest appears unlawful. Physical resistance may result in additional charges such as assault, obstruction, or resisting arrest, and may adversely affect the defence case.
- Ask the reason for the arrest and listen carefully to the answer.
- Note the officers. Memorise or record badge numbers, vehicle registration numbers, the time, and the location. If witnesses are present, note who they are.
- Clearly state the intention to exercise the right to remain silent until legal counsel is present.
At the Police Station
- Contact legal counsel and a family member at the earliest opportunity, providing them with the name of the police station, the identities of the officers involved, and the stated reason for arrest.
- Do not sign any document that has not been read and fully understood. If documentation is presented in a language not fully understood, this should be expressly stated. Statements and documents signed at the police station frequently determine the outcome of subsequent proceedings.
- If injured or unwell, report the condition immediately, request medical attention, and ensure that the matter is recorded in the occurrence book.
- Do not discuss the case with other detainees, over monitored communications, or via social media through intermediaries.
In the First Court Appearance
- An application for bail should be made by counsel at the earliest opportunity, preferably at the first court appearance. Early applications are more likely to succeed and avoid unnecessary delay to succeed and avoid unnecessary delay.
Common Mistakes That Weaken Your Case
- Making statements or confessions under pressure. Statements obtained without a proper caution, under coercion, or in the absence of legal counsel may be challenged and excluded, but the most effective protection is to refrain from making such statements.
- Resisting arrest or attempting to flee may result in additional charges and may adversely affect credibility before the court.
- Volunteering information beyond what is strictly required for identification should be avoided.
- Delaying the engagement of legal counsel. Early legal intervention can significantly affect outcomes in relation to bail, charging decisions, and the preservation and challenge of evidence.
Special Protections for Children
Where the arrested person is a child, additional protections under the Children Act, 2022 apply, including separation from adults, expedited handling, and the involvement of parents or guardians and the children's officer. A child should not be questioned in the absence of both an advocate and a guardian.
What Your Family Should Do If You Are Arrested
- Confirm which station you are being held at (police must allow communication)
- Contact your family lawyer immediately; speed matters.
- Bring your medication and necessities through the proper channels.
- Note the time of arrest; the 24-hour clock is running.
- Do not publicise details of the case on social media.
Frequently Asked Questions
How long can police hold me without taking me to court?
No longer than 24 hours, or until the end of the first court day if the 24 hours elapse outside court hours. Beyond that, the detention is unlawful.
Can I be denied bail?
Only for compelling reasons: the seriousness of the charge, risk of flight, or risk of interfering with witnesses. Bail is the constitutional default, and your advocate can challenge unreasonable denials.
Do I have to answer police questions?
No. You have the right to remain silent, and your silence cannot be used against you.
What if I cannot afford a lawyer?
The state must assign an advocate where substantial injustice would otherwise result. In practice, engaging your own advocate immediately gives you the strongest protection.
What if the police assault me in custody?
Report it immediately, request medical examination, and ensure it is recorded. It can support exclusion of evidence, your defence, and a constitutional claim against the state.
The Bottom Line
An arrest is not a conviction, and the Constitution does not suspend your rights at the station door. Every protection above is real and enforceable but only if you know it and use it. And in criminal matters, timing is everything: the hours immediately after an arrest shape the entire case.
Have you or a loved one been arrested or charged? Contact Anyega Osiemo & Co. Advocates immediately, day or night, for urgent criminal defence representation, bail applications, and protection of your constitutional rights.
Disclaimer: This article is general legal information, not legal advice. For guidance on your specific situation, book a consultation with our advocates.