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10-01-2018 |  By:  |  Comments

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Article 49 of the Constitution of Kenya 2010, outlines the Rights of the Accused which are as follows;

  1. When you are arrested the arresting officer MUST inform you promptly in a language that you can understand the following;
  1. The reason for the arrest
  2. The right to remain silent
  3. The consequence of not remaining silent
  1. When you are under arrest you have a right TO REMAIN SILENT and not incriminate yourself or record a statement.


  1. You have a right to COMMUNICATE WITH AN ADVOCATE and ANY OTHER PERSON who can assist you. When this right will be exercised may not be unreasonably delayed by the officers. Usually, they will state that you can only do this after you are booked into the police station. TAKE NOTE: Have some numbers memorised so that you can make a phone call even with a different phone from yours in case of damage, no battery or confiscation of the phone. Many people are unlawfully detained and are unable to communicate as they have not memorised any phone numbers.
  2. You have a right NOT to make any CONFESSION OR ADMISSION that could be used as evidence against you. It is prudent not to be rude but to be firm about exercising your right.
  3. As a newly arrested person you are to be held temporarily until you are produced in court. As you are INNOCENT UNTIL PROVEN GUILTY you are not to be held with people who have been found guilty and are serving their sentence.
  4. After arrest you are to be produced before the court within 24 Hours. This right does not apply when you are arrested on Friday or before a public holiday. In this instance you are to be presented to court by the end of the next working/court operating day. This right is very important as you are still INNOCENT UNITL PROVEN GUILTY and your right to freedom of movement ( Article 39) should not be interfered with unless for a justified cause.
  5. When presented to court, the Court should inform you of the reason for the detention continuin This may occur where the prosecution request more time or where you take a plea and are not granted bail or bond. In this instance you will be held at remand awaiting the hearing of the case or granting of bail/bond. When you are presented to the court ensure you have your surety in court so as to secure your release where such terms are imposed by the court.

Where your surety is not in court and is required, you shall be placed in remand until your surety provides all that is required by the court. In case of very stiff terms of bail or bond, you or your advocate can apply for review of the terms to more lenient terms. The courts are generally ready to vary bail/bond terms to reduce the overcrowding in the Prisons provided they are sure you will not abscond.

  1. When the court finds that there is no charge or valid charge or reason for you to continue being held, the court will release you and you will be free. This does not stop the police form re-arresting you particularly where the cause for the charge being dismissed was a technicality which they can rectify. It is prudent to have legal counsel to defend and protect your rights.
  2. It is your right for the court to provide bail/bond terms for all bailable offences. Currently most crimes especially misdemeanours are bailable. The court has a right to deny Bail and Bond where there are compelling reasons e.g. interference with witnesses or complainant, absconding. In this circumstance you can appeal to a higher court for their consideration. Remember you are INNOCENT UNTIL PROVEN GUILTY.
  1. Where the offence you are charged with has a sentence of 6 months or less or is punishable by a fine only the court has to release you. The court shall release you on bail/bond, convict you or order that you perform community service.


The principle that you are INNOCENT UNTIL PROVEN GUILTY is fundamental to our judicial system and the police have no authority to limit any of your rights except as provided in the constitution and other laws. From the foregoing, you note that even when arrested or charged your rights are not taken away or limited unless in special circumstances. The Court is vigilant to secure your rights and as an accused you must insist on your rights and make the court aware of any infringement.

On conviction and sentencing to incarceration your rights are limited as this is in accordance with the law.

Click here to subscribe to our blog and look out for our next KNOW YOUR RIGHTS article in the series.

Janet Katisya for LAWQUERY LIMITED


  Kenya, Election, Presidential, Mediation, Law, Constitution, Africa, Political, Peace, Uhuru Kenyatta, National Values, Arrest, Human Rights, Police, Rights Of The Accused, Court, Bail, Bond,


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