Holding criminals for more than 24 hours cost taxpayers

From August 2010 when the Constitution was promulgated, the courts have awarded compensation orders to suspects who feel the officers infringed on their rights. In a recent case, a judge ruled that a robbery suspect be compensated Sh300,000 for illegal detention after the case against her could not be sustained.

AP spokesman Masoud Mwinyi said suspects should not be held for more than 24 hours and if there is a compelling reason to do so, the officer has to follow the law.

Compelling reasons

“If there are compelling reasons to hold suspects beyond 24 hours, the officers should go for legal mechanisms. This is because the suspects should feel that they have been treated within the law,” he said.

He said officers need to uphold the law at any given time and should also acquaint themselves with the constitution, warning that those breaking the law will face the same law.

Article 49 of the constitution provides that an arrested person has the right to be brought before a court as soon as reasonably possible, but not later than 24 hours of being arrested.

If the 24 hours end outside ordinary court hours, or on a day that is not an ordinary court day, he should be taken to court before the end of the next court day. Given the nature of the offence, Mwinyi said, suspects are normally released on police bond or continue to be held after with a court order.

Lawyer Lydiah Kwamboka told Saturday Standard that some policemen continue to operate against the law by holding suspects more than the hours indicated in the constitution because none of their colleagues has been surcharged for committing the offence.

In most of the compensation cases filed after the promulgation of the constitution, the aggrieved parties only sue the Inspector General of Police and the Attorney General.

 “The respective officers should be co-sued with the state to deter them from operating against the constitution,” she said.

In Nanyuki, High Court Judge Mary Kasango ordered the state to pay a woman Sh300,000 for unlawful detention. Anne Kendi Muthee was arrested on October 8, 2010 by Corporal Mutua Kirimi and Constable Oswald Gitonga, and charged with robbery with violence on October 21, 2010.

Kendi was set free after the trial magistrate found that she had no case to answer. She then moved to court to seek a declaration that the IG and AG detained her unlawfully.

The court ordered that Kendi be paid Sh300,000 per day, for the 13 days she was unlawfully held in custody. In response, Lawyer Paul Gisemba for the AG and IG told the court that offence she was arrested over required thorough investigation before being charged in court.

“In the present case, the petitioner (s) was arraigned in court on October 21, 2010 having been arrested on October 8, 2010 within the envisaged period of 14 days,” he argued.

Armed with Article 23(3) of the constitution, the judge awarded Kendi Sh300,000 for the entire period she was unlawfully held in custody, saying Gisemba erred by arguing that an arrested person should be detained for 14 days.

Relief proceedings

 Article 23(3) provides that the High Court may grant relief proceedings brought to enforce the Bill of rights by making a declaration of rights, order for compensation, declare invalidity of any law; and make an order for judicial review.

In March 2014, Justice David Majanja ordered the IG and AG to pay Hussein Nyambu Sh10,000 for being held in custody for more than 24 hours. The man, arrested at a restaurant in Nairobi’s Majengo area in December 2012, is said to have been detained in excess of four hours.

The court also ordered that his petition be assessed at Sh10,000 exclusive of filing fees and disbursements that were to be certified by the Deputy Registrar of the court.

Justice Majanja said in his judgment that liability of the state arises once the clock strikes 24 hours and the suspect is still in police custody without being released or taken to court.