An arrest is one of the most stressful experiences a person can face. The first hours and days after arrest are critical. What you say, what you do, and whether you have legal representation during this period can significantly affect the outcome of your case. The Constitution of Kenya 2010 guarantees specific rights to every person who is arrested.
Your Rights Under Article 49
Article 49 of the Constitution provides that every arrested person has the right to be informed promptly of the reason for arrest and the right to remain silent; to communicate with an advocate immediately upon arrest (not after being taken to a police station or charged — immediately); not to be compelled to make any confession or admission; to be held in conditions that respect human dignity; and to be brought before a court within 24 hours of arrest, or at the end of the next court day if the 24-hour period ends outside court hours.
Your Rights Under Article 50
Article 50 provides the right to a fair trial: the presumption of innocence until proven guilty; the right to be informed of the charge with sufficient detail to answer it; adequate time and facilities to prepare a defence; the right to legal representation (and, where substantial injustice would otherwise result, an advocate assigned at State expense); the right to be present during trial; and the right to remain silent and not to testify.
Practical Steps If You Are Arrested
Remain calm. Do not resist arrest, even if you believe the arrest is unlawful — resisting creates a separate criminal offence. Identify yourself but exercise your right to silence on the substance of the allegation. State clearly that you wish to speak to your advocate before answering any questions. Contact your advocate as soon as possible. If you do not have one, ask a family member to contact one, or approach legal aid organisations including Kituo Cha Sheria or find a practising advocate through the Law Society of Kenya. Do not sign any document without your advocate present.
Bail and Bond
Under Section 123 of the Criminal Procedure Code, bail is available for most offences. The decision to grant bail is made by the court, considering the severity of the offence, the likelihood of absconding, and community safety. For murder and certain capital offences, bail is at the discretion of the High Court under Article 49(1)(h) of the Constitution. Your advocate can apply for bail at your first court appearance.
Our Litigation practice includes criminal defence across all court tiers. Contact us immediately if you or someone you know has been arrested.
