PART III – GENERAL PROVISIONS

ARREST, ESCAPE AND RETAKING

Arrest Generally

21. Arrest

(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.

22. Search of place entered by person sought to be arrested

(1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into or is within any place, the person residing in or being in charge of that place shall, on demand of the person so acting or the police officer, allow him free ingress thereto and afford all reasonable facilities for a search therein.

(2) If ingress to a place cannot be obtained under subsection (1), it shall be lawful in any case for a person acting under a warrant, and in any case in which a warrant may issue but cannot be obtained without affording the person to be arrested an opportunity to escape, for a police officer to enter the place and search therein, and, in order to effect an entrance into the place, to break open any outer or inner door or window of a house or place, whether that of the person to be arrested or of another person, or otherwise effect entry into the house or place, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance :
Provided that if any such place is an apartment in the actual occupancy of a woman (not being the person to be arrested) who, according to custom, does not appear in public, the person or police officer shall, before entering the apartment, give notice to the woman that she is at liberty to withdraw, and shall afford her every reasonable facility for withdrawing, and may then break open the
apartment and enter it.

23. Power to break out of house, etc., for purposes of liberation
A police officer or other person authorized to make an arrest may break out of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

24. No unnecessary restraint
The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

25. Search of arrested persons

Whenever a person is arrested—

(a) by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail ; or

(b) without warrant, or by a private person under a warrant, and the person arrested cannot legally be admitted to bail or is unable to furnish bail, the police officer making the arrest, or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may
search that person and place in safe custody all articles, other than necessary
wearing apparel, found upon him.

26. Power to detain and search aircraft, vessels, vehicles and persons

(1) A police officer, or other person authorized in writing in that behalf by the Commissioner of Police, may stop, search and detain—

(a) any aircraft, vessel or vehicle in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found ; or
(b) any aircraft, vessel or vehicle which there is reason to suspect has been used or employed in the commission or to facilitate the commission of an offence under the provisions of Chapters XXVI,
XXVIII and XXIX of the Penal Code (Cap 63) ; or
(c) any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained.

(2) No person shall be entitled to damages or compensation for loss or damage suffered by him in respect of the detention under this section of an aircraft, vessel or vehicle.

(3) For the purposes of this section, “aircraft”, “vessel” and “vehicle”, respectively, include everything contained in, being on or attached to an aircraft, vessel or vehicle, as the case may be, which, in the opinion of the court, forms part of the equipment of the aircraft, vessel or vehicle.

PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

PROCESSES TO COMPEL THE APPEARANCE OF ACCUSED PERSONS

Warrant of Arrest

100. Warrant after issue of summons

Notwithstanding the issue of a summons, a warrant may be issued at any time before or after the time appointed in the summons for the appearance of the accused.

101. Warrant on disobedience of summons

If the accused does not appear at the time and place appointed in and by the summons, and his personal attendance has not been dispensed with under section 99, the court may issue a warrant to apprehend him and cause him to be brought before it ; but no warrant shall be issued unless a complaint has been made upon oath.

102. Form, contents and duration of warrant

(1) Every warrant of arrest shall be under the hand of the judge or magistrate issuing it and shall bear the seal of the court.

(2) Every warrant shall state shortly the offence with which the person against whom it is issued is charged, and shall name or otherwise describe that person, and shall order the person or persons to whom it is directed to apprehend the person against whom it is issued and bring him before the court issuing the warrant, or before some other court having jurisdiction in the case, to answer to the charge therein mentioned and to be further dealt with according to law.

(3) A warrant shall remain in force until it is executed or until it is cancelled by the court which issued it.

103. Court may direct security to be taken

(1) A court issuing a warrant for the arrest of a person in respect of an offence other than murder, treason or rape may direct by endorsement on the warrant that, if the person executes a bond with sufficient sureties for his attendance before the court at a specified time and thereafter until otherwise directed by the court, the officer to whom the warrant is directed shall take the security and shall release the person from custody.

(2) The endorsement shall state—

(a) the number of sureties ;
(b) the amount in which they and the person for whose arrest the warrant is issued are to be respectively bound ; and
(c) the time at which he is to attend before the court.

(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the court.

104. Warrants, to whom directed

(1) A warrant of arrest may be directed to one or more police officers, or to one police officer and to all other police officers of the area within which the court has jurisdiction, or generally to all police officers of the area :
Provided that a court issuing a warrant may, if its immediate execution is necessary, and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.

(2) When a warrant is directed to more officers or persons than one, it may be executed by all or by any one or more of them.

105. Warrants may be directed to landholders, etc.

(1) A magistrate empowered to hold a subordinate court of the first class may direct a warrant to a landholder, farmer or manager of land within the local limits of his jurisdiction for the arrest of an escaped convict or person who has been accused of a cognizable offence and has eluded pursuit.

(2) The landholder, farmer or manager shall acknowledge in writing the receipt of the warrant and shall execute it if the person for whose arrest it was issued is in or enters on his land or farm or the land under his charge.

(3) When the person against whom the warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a magistrate having jurisdiction, unless security is taken under section 103.

106. Execution of warrant directed to police officer

A warrant directed to a police officer may also be executed by another police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.

107. Notification of substance of warrant

The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.

108. Person arrested to be brought before court without delay
The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 103 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce that person.

109. Where warrant may be executed

A warrant of arrest may be executed at any place in Kenya.

110. Forwarding of warrants for execution outside jurisdiction

(1) When a warrant of arrest is to be executed outside the local limits of the jurisdiction of the court issuing it, the court may, instead of directing the warrant to a police officer, forward it by post or otherwise to a magistrate within the local limits of whose jurisdiction it is to be executed.

(2) The magistrate to whom a warrant is so forwarded shall endorse his name thereon, and, if practicable, cause it to be executed in the manner hereinbefore provided within the local limits of his jurisdiction.

111. Warrant directed to police officer for execution outside jurisdiction

(1) When a warrant of arrest directed to a police officer is to be executed outside the local limits of the jurisdiction of the court issuing it, he shall take it for endorsement to a magistrate within the local limits of whose jurisdiction it is to be executed.

(2) The magistrate shall endorse his name thereon, and the endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute it within those limits, and the local police officers shall, if so required, assist that officer in executing the warrant.

(3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the magistrate within the local limits of whose jurisdiction the warrant is to be executed will prevent its execution, the police officer to whom it is directed may execute it without endorsement in any place
outside the local limits of the jurisdiction of the court which issued it.

112. Procedure on arrest of person outside jurisdiction

(1) When a warrant of arrest is executed outside the local limits of the jurisdiction of the court by which it was issued, the person arrested shall, unless the court which issued the warrant is within twenty miles of the place of arrest, or is nearer than the magistrate within the local limits of whose jurisdiction the arrest was made, or unless security is taken under section 103, be taken before the
magistrate within the local limits of whose jurisdiction the arrest was made.

(2) The magistrate shall, if the person arrested appears to be the person intended by the court which issued the warrant, direct his removal in custody to that court :
Provided that if the person has been arrested for an offence other than murder, treason or rape, and he is ready and willing to give bail to the satisfaction of the magistrate, or if a direction has been endorsed under section 103 on the warrant and the person is ready and willing to give the security required by the direction, the magistrate shall take the bail or security, as the case may be, and shall forward the bond to the court which issued the warrant.

(3) Nothing in this section shall prevent a police officer from taking security under section 103.

113. Irregularities in warrant

An irregularity or defect in the substance or form of a warrant, and any variance between it and the written complaint or information, or between either and the evidence produced on the part of the prosecution at a trial, shall not affect the validity of any proceedings at or subsequent to the hearing of the case, but, if a variance appears to the court to be such that the accused has been thereby deceived or misled, the court may, at the request of the accused, adjourn the hearing of the case to some future date, and in the meantime remand the accused or admit him to bail.


Miscellaneous Provisions Regarding Processes

114. Power to take bond for appearance

Where a person for whose appearance or arrest the officer presiding in a court is empowered to issue a summons or warrant is present in court, the officer may require the person to execute a bond, with or without sureties, for his appearance in that court.

115. Arrest for breach of bond

When a person who is bound by a bond taken under this Code to appear before a court does not so appear, the officer presiding may issue a warrant directing that the person be arrested and produced before him.

116. Power of court to order prisoner to be brought before it

(1) Where a person for whose appearance or arrest a court is empowered to issue a summons or warrant is confined in prison within the local limits of the jurisdiction of that court, the court may issue an order to the officer in charge of the prison requiring him to bring the prisoner in proper custody, at a time to be named in the order, before the court.

(2) The officer so in charge, on receipt of the order, shall provide for the safe custody of the prisoner during his absence from the prison.

117. Provisions of this Part generally applicable to summonses and warrants

The provisions of this Part relating to a summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code.

PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

SEARCH WARRANTS

118. Power to issue search warrant

Where it is proved on oath to a court or a magistrate that anything upon, with or in respect of which an offence has been committed, or anything which is necessary for the conduct of an investigation into an offence, is, or is reasonably suspected to be, in any place, building, ship, aircraft, vehicle, box or receptacle, the court or a magistrate may by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place, building, ship, aircraft, vehicle, box or receptacle (which shall be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law.

119. Execution of search warrants

A search warrant may be issued on any day (including Sunday), and may be executed on any day (including Sunday) between the hours of sunrise and sunset, but the court may, by the warrant, authorize the police officer or other person to whom it is addressed to execute it at any hour.

120. Persons in charge of closed place to allow ingress and egress

(1) Whenever a building or other place liable to search is closed, a person residing in or being in charge of the building or place shall, on demand of the police officer or other person executing the search warrant and on production of the warrant, allow him free ingress thereto and egress therefrom and afford all reasonable facilities for a search therein.

(2) If ingress into or egress from the building or other place cannot be so obtained, the police officer or other person executing the search warrant may proceed in the manner prescribed by section 22 or section 23.

(3) Where a person in or about the building or place is reasonably suspected of concealing about his person an article for which search should be made, that person may be searched.

(4) If that person is a woman the provisions of section 27 shall be observed.

121. Detention of property seized

(1) When anything is so seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.

(2) If an appeal is made, or if a person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial.

(3) If no appeal is made, or if no person is committed for trial, the court shall direct the thing to be restored to the person from whom it was taken, unless the court sees fit or is authorized or required by law to dispose of it otherwise.

122. Provisions applicable to search warrants

The provisions of subsections (1) and (3) of section 102, and sections 104, 106, 109, 110 and 111, shall, so far as may be, apply to search warrants issued under section 118.

PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

COMPELLING ATTENDANCE OF WITNESSES

146. Warrant for witness in first instance

If the court is satisfied by evidence on oath that the person will not attend unless compelled to do so, it may at once issue a warrant for the arrest and production of the witness before the court at a time and place to be therein specified.

147. Mode of dealing with witness arrested under warrant

When a witness is arrested under a warrant, the court may, on his furnishing security by recognizance to the satisfaction of the court for his appearance at the hearing of the case, order him to be released from custody, or shall, on his failing to furnish security, order him to be detained for production at the hearing.

PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

COMPELLING ATTENDANCE OF WITNESSES

148. Power of court to order prisoner to be brought up for examination

(1) A court desirous of examining, as a witness, in a case pending before it, a person confined in prison within the local limits of its jurisdiction, may issue an order to the officer in charge of the prison requiring him to bring the prisoner in proper custody, at a time to be named in the order, before the court for examination.

(2) The officer so in charge, on receipt of the order, shall act in accordance therewith, and shall provide for the safe custody of the prisoner during his absence from the prison.

PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS

EXAMINATION OF WITNESSES

150. Power to summon witnesses, or examine person present

A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case :
Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness.

151. Evidence to be given on oath

Every witness in a criminal cause or matter shall be examined upon oath, and the court before which any witness shall appear shall have full power and authority to administer the usual oath.

152. Refractory witnesses

(1) Whenever a person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence—

(a) refuses to be sworn ; or
(b) having been sworn, refuses to answer any question put to him ; or
(c) refuses or neglects to produce any document or thing which he is required to produce ; or
(d) refuses to sign his deposition,
without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for any period not exceeding eight days, and may in the meantime commit that person to prison, unless he sooner consents to do what is required of him.

(2) If the person, upon being brought before the court at or before the adjourned hearing, again refuses to do what is required of him, the court may again adjourn the case and commit him for the same period, and so again from time to time until the person consents to do what is so required of him.

(3) Nothing contained in this section shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required of him, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it.

PART V – MODE OF TAKING AND RECORDING EVIDENCE IN TRIALS

HIGH COURT

201. Rules as to taking down of evidence

(1) The Chief Justice may make rules of court prescribing the manner in which evidence shall be taken down in cases coming before the High Court, and the judges shall take down the evidence or the substance thereof in accordance with those rules.

Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

Article 93
Other forms of cooperation
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.

Article 99
Execution of requests under articles 93 and 96
1. Requests for assistance shall be executed in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request, including following any procedure outlined therein or permitting persons specified in the request to be present at and assist in the execution process.

Article 88
Availability of procedures under national law
States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.