Rights of an Arrested Person in Kenya

Rights of an Arrested Person in Kenya

Author: Subhashini. S, SASTRA, School of Law.


Like Indian Constitution, Republic of Kenya also has its own Constitution viz. Constitution of Kenya, 1963 to which lots of amendments have been made and the latest and the major amendment was in the year 2010.  More than 67% of the Kenyan population accepted the amendment made in the year 2010. Chapter Four of the Constitution of Kenya, 2010 talks about the Bill of Rights and Part Two of Chapter Four talks about Rights and Fundamental Freedom of citizens of Kenya. In this Article let us see the Rights of arrested person of Kenya.  Article 49, Part Two, Chapter Four of Constitution of Kenya talks about the Rights of Arrested person.

Section 49 talks about the rights of arrested persons

An arrested person has the right to be informed promptly, in any language he understands, the reason for his arrest, the right to remain silent, and the consequences that he would face if he remains silent. He should have the right to communicate with his advocate, and other persons whose assistance he needs at that time.

This section also tells that the they should not be compelled to make them confess or admit that such evidences go against the person. The arrested person should be brought before a court as early as possible (i.e. within 24 hours after being arrested or if the 24 hours ends outside ordinary courts hours, or on a day that is not an ordinary court day, the end of the next court day).

At the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released and to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.

Section 48 gives the rights to access to justice

This section ensures that everyone shall get access to justice and if any fee is required, it shall be reasonable and shall not impede access to justice.

Section 50 talks about fair hearing

Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Every arrested person has the right to a fair trial.

  1. They have the right to be seen as innocent until they are proved guilty.
  2. They should be properly informed of the charges held on them with complete details of that.
  3. They should be given adequate time to prepare their defense and prove their innocence.
  4. They should be held in the public trial before the court established by the Constitution.
  5. There should not be any delay in the start and end of the trial.
  6. Unless, only under circumstances where his conduct does not allow for the trial to proceed, the accused person has the right to be present at the time of trial.
  7. The accused person has the right to be represented by an advocate and also be informed his rights.
  8. If the accused is not able to afford and allot himself an advocate, he shall be assigned with an advocate by the state, at its expense if substantial injustice would otherwise result, and to be informed of this right promptly.
  9. The accused should be silent at the time of the proceedings.
  10. The accused shall be, in advance, informed of what evidences the prosecution would rely on and that the accused shall have reasonable access to that evidence.
  11. To adduce and challenge evidence.
  12. To refuse to give self-incriminating evidence.
  13. The accused shall have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial.
  14. Not to be convicted for an act or omission that at the time it was committed or omitted was not
    (i) an offence in Kenya; or
    (ii) a crime under international law.
  15. The accused person cannot be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted.
  16. to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
  17. if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

The arrested person should be given the information of the arrest in the language he understands and if the evidences were obtained in such a manner that it violates the fundamental freedom or rights of the person. Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice. An accused person has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.

A person who is convicted of a criminal offence may petition the High Court for a new trial if 

(a) the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal or the person did not appeal within the time allowed for appeal; and
(b) new and compelling evidence has become available.

In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court. This Article does not prevent the exclusion of the press or other members of the public from any proceedings if the exclusion is necessary, in a free and democratic society, to protect witnesses or vulnerable persons, morality, public order or national security.

Section 51 talks about rights of person detained, held in custody or imprisoned

(1) A person who is detained, held in custody or imprisoned under the law, retains all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned.
(2) A person who is detained or held in custody is entitled to petition for an order of habeas corpus.
(3) Parliament shall enact legislation that-(a) provides for the humane treatment of persons detained, held in custody or imprisoned; and
(b) takes into account the relevant international human rights instruments.


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