High Court Criminal Division Judge Justice Luka Kimaru.


The arrest and detention of State House official Dennis Itumbi and that of blogger Robert Alai among other arrests continues to expose the tricks employed by the police to punish suspects before they are formally charged.

The tricks are mostly through miscellaneous application which police seek to detain suspects up to 30 days or more pending conclusions of investigations.

But last year, a Judge ruled that it is unlawful for the police to seek to have a person who has been arrested to continue to remain in custody without a formal charge being laid in court.

“If this trend continues, it will erode all the gains made in the advancement of human rights and fundamental freedoms as provided for in the Bill of Rights since the Constitution was promulgated in August 2010,” Justice Luka Kimaru said.

And in a recent decision, Justice Kimaru said the prosecution must fulfill the requirements of Section 36A(3) and (5) of the Criminal Procedure Code, which include convincing the court that the offence being investigated is of such a serious nature that it will necessitate the holding of the arrested person in custody.

In both cases, the Directorate of Criminal Investigations had sought to detain the suspects for several days as they conclude investigations. Among the reasons sought is the need to go through their call data records.

City lawyer Danstan Omari welcomed the ruling saying Kenyan constitution envisages complete investigation before arrest and arraignment in court.

“Today suspects are arrested brought to court then detained then investigators commended investigation that is meant to look for anything to charge a person. Legally it’s an abuse of article 157 sub article 11 where the DPP should act in the public good. Many who have been arraigned the state has later withdrawn the allegations and closed the files. Who will compensate them?”, said lawyer Omari.

He added that this constitutes to malicious prosecutions.

Lawyer Omari said that miscellaneous applications is a way to remove public officers from offices. Because courts are granting cash bail to suspects on the spot the only way to ensure the are put to humiliation is to use that approach.

“Miscellaneous application is a new tool that replaced the infamous detention without trial of the Moi era”, added Omari.

Alai has already been charged with among other offences, treachery while in Itumbi’s case, the police intend to charge him with making a false document without authority.

The court was told that the investigators needed to go through his call data records and also summon all 256 members of a whatsapp group known as Tangatanga movement.

The law says if a police officer has reasonable grounds to believe that the detention of a person arrested beyond the 24 hour period is necessary, he shall- produce the suspect before a court; and apply in writing to the court for an extension of time for holding the suspect in custody.

The said application must be supported by an affidavit and shall specify the nature of the offence.

Justice Kimaru observed that Article 49(1) of the
Constitution does not give the police a carte blanche to the police to arrest people for any other purpose other than in preparation to present them to court for the purpose of having them charged with a recognized offence.

While freeing some 40 suspects from Kenya Revenue Authority arrested over claims of aiding persons evade tax, Justice Kimaru said the reasons presented to court for the continued detention of an arrested person must be such that a reasonable man applying his mind to the particular facts reaches the conclusion that indeed there is justification in having them continued to be detained.

“The prosecution must also establish to the court that there are compelling reasons to believe that the suspect shall not appear for trial, may interfere with witnesses or the conduct of investigations, or commit an offence while on release,” he said.

The Judge explained that the term “reasonable ground to believe” used in Section 36A(2) of the Criminal Procedure Code has not been defined.

However, he said, the test “reasonable ground to believe” is different when a police officer is arresting a suspect from when the police officer is requesting the court to continue holding the arrested person in custody after his first production in court.

“The legal threshold when the police are effecting arrest is lower than when the police are seeking to continue holding the arrested person in custody,” he said.

The Judge released the KRA suspects stating that the information provided in the affidavit was generalized in nature and did not disclose the specific offence that is being investigated in respect of each applicant.

” It was evident that the Applicants were arrested before even the investigators had gathered sufficient prima facie evidence to link each applicant to the commission of a specific disclosed offence,” he said.

The Judge said he was not convinced that the reasons that the DCI advanced in a bid to secure the continued detention of the suspects applied to each applicant.

He said the impression he got was that the arrest of the was rushed even before investigations had concretized and the criminal culpability of each applicant established.