The process that unfolds after an arrest is crucial to uphold the principles of justice, fairness, and the protection of individual rights. In Kenya, specific procedures guide the treatment of arrested individuals before they are presented in court, ensuring that their rights are respected from the very outset.
This article delves into the pre-arraignment processes that take place before an accused person’s first court appearance.
Arrest
- Presentation within 24 Hours: An arrested person in Kenya is entitled to be presented before a court as soon as reasonably possible, but this presentation should not occur later than twenty-four hours after the arrest unless these hours end outside regular court hours or on a non-working court day Art. 49(1)(f). The term ‘brought before the court as soon as reasonably possible’ emphasizes the need for a case-specific evaluation of the circumstances. For example, an individual arrested on a Friday morning should be presented before the court by the end of that same day, and the court should seek explanations from law enforcement officers in case of any delays. Any detention beyond this period must be authorized by the court s. 36A, CPC, and requests for extensions must be made before the twenty-four-hour deadline 36A(8), CPC; Milen Halefom Mezgebo v Attorney-General & 2 Others). During this initial court appearance, the accused should be formally charged, informed of the reasons for their continued detention, or released Art. 49(1)(g), CoK.
- Prompt Presentation: The phrase ‘brought before the court as soon as reasonably possible’ implies that the time limits for presenting the accused and prolonging their detention represent the ‘outer limits.’ It is the prosecution’s duty to fulfill these requirements as promptly as possible. A precedent, Lucas Omoto Wamari v Attorney-General & Another (High Court at Nairobi Petition No. 294 of 2012),, held that the prosecution must take the arrested person to court as soon as reasonably practicable and not at the last possible moment. This interpretation remains applicable under the 2010 Constitution.
- Remedies for Violation: If an accused person’s right to appear before the court, as stipulated in Articles49(1)(f) and (g), is violated, they have the right to seek a remedy, including compensation Art. 22(1), 23(3)(e), CoK. The violation does not automatically lead to acquittal or discharge, as established in Fappyton Mutuku Ngui v R (Court of Appeal at Nairobi Criminal Appeal No. 32 of 2013). Instead, when a violation is proven, the accused may pursue a remedy in the form of damages. However, delays in presenting the accused before the court can result in dismissal if these delays lead to the violation of other constitutional rights or hinder the accused’s ability to present a defense.
The procedures before an accused person’s first court appearance play a pivotal role in ensuring that their rights are upheld and that the principles of justice are followed. By respecting the specific time limits and taking prompt action during the pre-arraignment phase, the Kenyan legal system continues to safeguard the rights and well-being of individuals facing criminal charges.
