Know Your Rights[1]

8/2/2019 Know Your Rights[1]

1/36

Know your Rights !i

TABLE OF CONTENTS

Foreword: ii

Part One: Bribery & The Law 1

Part Two: A Snapshot Of Traffic Laws & Related Offences 2

Part Three: Police Arrest 14

Part Four: The Courts 21

Part Four : Tables Common Offences Where Bribes are

Solicited & How to Avoid Them

Table 1.1 Relating to Regular Police Officers &

Local Authorities 26

Table 1.2 Relating to Traffic Police Officers 27

Organisations of Interest 30


2/36

iiKnow your Rights !

FOREWORD

Transparency International-Kenya believes that information is the most powerful tool

that citizens can use to fight corruption and access public services and entitlements.

Anti-corruption campaigns, human rights movements and civic education all aspireto promote civic vigilance, action and engagement while highlighting the respective

roles and responsibilities of all stakeholders which include citizens, the government

and media.

Certain international legal instruments especially the United Nations Convention

Against Corruption (UNCAC), article 13, and the African Union (AU) Convention

Against Corruption, article five, recognise the participation of citizens as central to

the establishment and maintenance of effective anti-corruption strategies. Corruptpractices flourish where there is mutuality of interest, ignorance and obscurity.

When citizens operate in the dark, corrupt officials can and do act with impunity.

Information is therefore a bulwark against corruption.

The reports in theElimika series are intended as a practical tool for enhancing public

awareness of laws, rules and regulations that govern citizens every day lives, and

form part of TI-Kenyas ongoing campaign to promote public participation in good

governance. People who are aware of their rights are more likely to hold governments

accountable, and are less likely to be victims of extortion and bribe-giving. This

publication on traffic laws & offences, police arrests and the courts is the first in

the series and is part of TI-Kenyas support for citizen participation in accountable

governance.

The publication of Elimika series has been made possible by the generous support

of the citizens of Netherlands and Norway.

Transparency International-Kenya

December, 2008


3/36

Know your Rights !1

PART ONE: BRIBERY AND THE LAW

What is bribery?

Bribery is the practice of offering something [usually money] in order to gain anillicit advantage.

A person is considered to be engaging in bribery when he/she:

(a) Corruptly or dishonestly receives or asks for, or corruptly agrees to receive

or solicit a benefit. In this case, a benefit means any gift, loan, fee, reward,

appointment, service, favour, promise or other advantage.

(b) Corruptly gives or offers, or corruptly agrees to give or offer a benefi

t.

PenaltiesA person convicted of an offence of bribery is liable to:

A fine of not more than one million shillings, or to imprisonment for a term not

longer than ten years, or to both; and

An additional mandatory fine if, as a result of corruption, it is proved the person

received a benefit or any other person suffered a loss. The mandatory fine shall

be equal to two times the amount of the benefit or loss.

The law also provides for confiscation and/or forfeiture of assets of which the

owner is reasonably believed to have acquired corruptly or one cannot believably

explain the source.

Remember: Police officers are not above the law. Thus any person who has

complaints against any police officer can report the matter to the Officer

Commanding Station [O.C.S]. If one has been asked for a bribe by a police

officer, he/she may report the matter to the Kenya Anti-Corruption Commission

(KACC) or to the Criminal Investigations Department. Members of the public

may also highlight issues of corruption through the newspapers, television or

F.M. radio stations. The media will usually publish stories where there is enougn

evidence to avoid exposure to law suits for defamation.


4/36

2Know your Rights !

PART TWO: A SNAPSHOT OF TRAFFIC LAWS ANDRELATED OFFENCES

The Traffic Act

What is the Traffic Act?

This is the law that brings together all regulations relating to traffic on the road.

It governs the whole range of road users from cyclists, drivers, passengers, and

pedestrians to motor vehicles and their conduct on Kenyan roads. It also regulates

registration and licensing of motor vehicles, licensing of drivers, accidents, driving

and general rules and provides the penalties for breaking this law. The police have

the duty of enforcing the Act. All road users in Kenyan have a duty to familiarizethemselves with the provisions of the Act.

The powers of the police to enforce the Traffic Act have unfortunately been grossly

abused. The Traffic Police subject motorists to all manner of indignity from

impounding cars and car keys to impounding driving licenses and only relent after

being bribed or as it is said in Kiswahili wakipewa kitu kidogo.

Police powers while enforcing the Traffi

c Act

Can a police officer enter your vehicle?

The Police Act, Section 105 gives any police officer in uniform and any licensing

officer or inspector the powers to stop any vehicle and:

To enter any vehicle;

To drive any vehicle or cause any vehicle to be driven;

Upon reasonable suspicion of any offence under this Act, to order and require

the owner of any vehicle to bring the vehicle to him for the purpose of carrying

out any examination and test of the vehicle with a view to ascertaining whether

the provisions of this Act are being complied with or with a view to ascertaining

whether the vehicle is being used in contravention of this Act.

If a person does not obey any of the above, they have committed an offence and are

liable to a fine not exceeding Kshs. 10001.

1The Police Act of the Laws of Kenya, Section 105 (2)


5/36

Know your Rights !3

This is easily the most abused of the traffic laws. It gives the police powers to enter,

commandeer or impound vehicles at any time while claiming that they are enforcing

the Act. A police officer will always find fault with a vehicle, sometimes taking

advantage of ignorance of the law on the part of a motorist. The police have power

to remove the motor vehicle identification plates and the vehicle license where they

are satisfied that it is not roadworthy.

The Traffic Act does not give police officers the powers to enter any vehicle other

than for the purpose of inspection or examination. The practice of police entering

vehicles and asking the drivers to jitetee (bribe them) as they drive around town

should be discouraged. A person faced with such a request should refuse to let an

officer enter his motor vehicle unless the officer wants to examine it. In addition,

such a person can go straight to the nearest police station and file a complaint.

In PracticeTraffic Police Officers will sometimes enter a vehicle and order the owner/driver to

take them into a police station for offences against the Highway Code. When they

do so, they threaten to impound the vehicle (especially PSVs) unless the driver co-

operates. Many motorists believe that they will avoid wasting time at the police

station and in the courts by bribing the officers for their freedom. This is wrong

and should also be discouraged. It is better and cheaper, especially for the PSVs,

to ensure your vehicle is fault free instead of bribing policemen. Motorists should

be aware that arrest is not the end of the story. A police officer must prove that an

offence has been committed in a court of law.

In major Kenyan towns, especially Nairobi, there is a renewed zeal in the

enforcement of the use of zebra crossings. As a result many motorists have fallen


6/36

4Know your Rights !

prey to unscrupulous City Council Askaris (police) who enter their vehicles and

solicit bribes if the drivers have failed to slow down at zebra crossings.

If one commits an offence under the Traffic Act, police are required to issue the

motorist with a charge sheet [or other documents such as summons] indicating the

offence committed, the time and date to attend court and let him/her proceed with

their journey. The driver may be required to deposit some money with the police as

security for his attendance in Court. This is known as police bail.

NOTE:Members of the public must insist on being supplied with a receipt for the

police bail. This is because the funds are refundable once one is presented to the

Court.

The officer in charge of a particular road block will usually be the one to decide

how much money should be paid as bail. It should ordinarily be a nominal amount

of between Kshs. 2,000 to Kshs. 10,000. Police bail can be given in respect of

all traffic offences, but the police may however be reluctant to issue bail in a case

whereby a person has died as a result of a road accident.

What happens when a police officer illegally enters your vehicle?

According to the Traffic Act, any person who, without reasonable excuse, enters and/

or manipulates (orders one to drive) a vehicle without permission from the owner or

the person in charge of the vehicle can be sentenced to prison for 9 months or less, or

pay a fine of Kshs 3,000 or both. This applies to both civilians and police officers2.

When can a vehicle be impounded?

A vehicle can be impounded by a police officer and taken to a place of safe custody

when:

It is used against any of the traffic rules,

Abandoned,

Left on the road in a position likely to cause danger to other road users and the

owner cannot be found, or if it is parked in a place where parking is prohibited.

2 The Traffic Act of the Laws of Kenya, Section 64 & 65


7/36

Know your Rights !5

Other Common Traffic Laws and Offences

No vehicle should be used or driven unless it is fitted with seat belts for each

sitting position. If one is found guilty of doing so, they will be charged a fine

of Kshs. 1,000 for each seat that does not have a belt. The law also prohibits

members of the public from using any vehicle that is not properly fitted with seat

belts. A person who does not wear a seat belt faces a fine of Kshs. 500.

It is an offence a person to use a mobile phone or any other communication

equipment while driving.

Bicycles, motor cycles and other should be fitted with reflectors to warn other

motorists of their presence on the road.

Fines under the Act

Some specific penalties are spelt out for specific crimes against the Traffic Act, but

where no penalty is provided for, including in relation to some of the matters listed

above, one may be sentenced to:

A fine of not more than Kshs 2,000 or

Imprisonment for not longer than 3 months for a first time offence and

A fine of not more than 5,000 or imprisonment of not longer than 6 months (or

both) for any subsequent offences.

An impounded vehicle can be detained at a police station or other safe place until

inquiries into a case have been completed.


8/36


9/36

Know your Rights !7

In PracticeSome police officers will immediately arrest motorists and/or tow vehicles they

suspect of obstruction without giving any other option. This provides an opportunity

for bribes to be given so that the motorist can avoid arrest. Police are also known to

collude with owners of tow trucks, so that they collect bribes from them, and willusually insist on towing even when it is not necessary.

Driving under the influence of Alcohol and Drugs

It is illegal to drive or to attempt to drive while under the influence of alcohol or

drugs to the extent of being incapable to have proper control of the vehicle.

A person convicted of this offence is liable to a fine not exceeding Kshs. 10,000 or

to imprisonment for a term not exceeding 18 months or to both. The Court will also

disqualify a person who is convicted of this offence from holding or obtaining a

licence for a period of two months.

If a PSV driver is convicted, he/she is liable to a fine not exceeding Kshs. 15,000 or

to imprisonment for a term not exceeding two years or to both.

At the time of preparing this booklet, the Government had not yet legalised laws to

put into effect a breathalyser test commonly known as alcoblow. The alcoblow is a

gadget that a motorist blows his breath into and it indicates whether he or she haspassed the legal limit for alcohol.

Accidents

What should one do when involved in an accident?

When involved in an accident, one should:

Stop

Immediately alert the police or do so within 24 hours

Report the accident to the insurance company/agent/broker

Take the details of the other vehicle involved in the accident which include

its registration number, the insurance company and the insurance certificate

number.


10/36

8Know your Rights !

Get the details of the owner and/or driver of the vehicle. These include the name,

address, telephone number and driving license number.

Give their name, address, telephone number, driving license number, registration

and insurance details of their car.

When police officers arrive at the scene of the accident, they inspect it, ask questions

and take down the details of the accident, including a sketch plan showing the point

of impact. Some or all of this information will appear in a police abstract report.

NOTE:A traffic police officers opinion on the cause of an accident and the extent of

damage to a vehicle is important in any case involving traffic accidents. Sometimes,

motorists involved in vehicle accidents offer bribes to police officers so that evidence

in a court case can favour them. To avoid this, those involved in accidents can take

action such as photographs showing the point of impact, and any damage to the

vehicles, which can be used in Court as evidence. Motorists can also take the details

of any eye witnesses who can be called to Court to testify on their behalf.

The Driving License

The Traffic Act states that no person should drive any motor vehicle unless he or

she has a valid driving licence or a provisional licence. Further, a person who is

in charge of any motor vehicle should not allow an unqualified person to drive it

on any road.

A person is entitled to hold only one driving licence, which may however be

endorsed to allow him to drive different classes of motor vehicles for which he is

qualified.

A driving licence may be renewed annually or every three years.

A driving licence must not be defaced or mutilated. If defaced or mutilated a

replacement must be sought.

The licence should have the signature of the holder.

A person who does not follow these rules is liable to a fine of not more than two

thousand shillings, or to imprisonment for a term not exceeding three months.

For subsequent convictions, one is subject to a fine not exceeding five thousand

shillings, or to imprisonment for a term not exceeding six months or to both.


11/36

Know your Rights !9

A provisional licence is one given to a person who wishes to learn to drive

vehicles of a particular class.

Any person driving a vehicle should carry his or her driving license or provisional

license and should produce it when requested by a police officer. Failure to do so

would attract a fine which is not more than Ksh. 100.

Can the police suspend or cancel a driving license?

It is a standard practice and lawful for a police officer to demand a driving license

from a motorist. This is to check whether it has expired or has been endorsed by a

court of law. The police have no powers to suspend or cancel a driving license. They

are supposed to surrender it to the courts.

The courts have the power to:

Suspend driving licenses,

Cancel licenses,

Declare a person unfit to obtain a new licence for a specified period of time.

It is to be noted that upon application by a police officer above the rank of

Superintendent, the Registrar of Motor Vehicles is also empowered to revoke the

driving licence of any person who appears to be suffering from a disease or disability

that is likely to pose a danger to the public when driving.

In PracticeSome police officers accuse motorists of traffic offences and impound their licenses.

Since one cannot drive without a licence, and the burden of proving that a motorist

has committed a traffic offence lies on the police, some people tend to bribe police

officers so as to get their licences back. This practice is also illegal. So what should

one do when the police take your licence? If the police impound your licence and ask

you for a bribe you can report to the nearest police station or to KACC.

The Public Service Vehicles (PSV) Sector

The PSV sector is a hotspot for bribery activities. From obtaining PSV licences,

certificates of good conduct, to plying a certain route, vehicle owners, drivers and

conductors often pay bribes to ensure a smooth flow of operations. Once this is

done, PSVs will usually break traffic rules while police officers look the other way.


12/36

10Know your Rights !

A new phenomenon is where many public service vehicles are owned by police

officers. Most if not all such vehicles are not subjected to a rigorous application of

the Traffic Act. This is a form of corruption.

What types of inspection are vehicles supposed to go through:

A motor vehicle may be examined or inspected for a number of reasons, including

valuation and to gauge it mechanical condition. The law requires public service

motor vehicles be inspected annually and to bear asticker tothat effect.

Initial Inspection This is the inspection which a new motor vehicle must

undergo just before it begins operations.

Periodic Inspection This is an inspection which a motor vehicle must undergo

when it is to be operated frequently. It is carried out after its inspection certificate

has expired.

Modification Inspection This is the inspection which a motor vehicle must

undergo when there are changes in the length, height, width, maximum payload

and other major specifications such as engine change.

Inspection of vehicles involved in traffic accidents It is the mandatory

inspection which a motor vehicle must undergo when it is damaged in a traffic

accident, especially an accident in which third parties are injured, or there is

substantial damage to another vehicle.

On roads random inspection - This is a superficial inspection which a motor

vehicle undergoes when it is stopped at random by traffic police officers on the

road.

Environmental Tests (Exhaust Emission Tests)

Visual Inspection (for all vehicles) The exhaust fumes are inspected so as to

ensure that a vehicle does not emit dense blue or clearly visible black smoke.

Standard Emission Test This is a scientific test that looks at the concentration of

carbon monoxide and hydrocarbons that are emitted by vehicles. Environmental

tests are rarely carried out, which could partly be due to the ignorance of police


13/36

Know your Rights !11

officers and lack of scientific equipment, but may also indicate the extent of

possible opportunities for bribery.

Roadworthiness Inspection

What is roadworthiness inspection?

This is an inspection that looks at the safety of a car and should not be confused with

the servicing of a car. When a vehicle is inspected for road worthiness, it is checked

to ensure that it is safe for use on the road. It also ensures that worn out parts are

replaced or repaired early. It is the owner of a vehicle, whether an individual or a

company, that must ensure that this inspection is carried out.

In PracticeMotorists are often tempted to bribe police officers with huge amounts because the

officers have the power to declare vehicles un-roadworthy and take motorists to

court where they would face hefty fines for driving such vehicles. This is wrong. An

un-roadworthy vehicle poses great danger both to its owner and other road users.

PSV Regulations

What PSV regulations apply to vehicles?

According to Section 95(1) of the Traffic Act, no one can drive or be in charge of

any PSV on a road unless it is licensed by the Transport Licensing Board (TLB).

The penalty for doing so is a fine not exceeding Kshs 5,000 or imprisonment for a

period not longer than 6 months if found guilty for a first time or both. On second

or subsequent conviction, the offender is liable to pay a fine of Kshs. 10,000 or to

imprisonment for a period not exceeding one year or to both. To avoid such penalties,

PSV owners and drivers may bribe police officers and continue their operations.The certificate that allows one to be issued with a license is given by a police officer

of or above the rank of Assistant Superintendent who certifies that the applicant is

a fit and proper person to hold such a license. To avoid these procedures, both the

applicant and the officer may collude to have some money change hands.


14/36


What PSV regulations apply to the crew (drivers andconductors)?

One cannot drive or act as the conductor of a PSV unless he/she is licensed. (In

the event that one has forgotten his / her license, arrest is swift unless a bribe is

offered.) A person licensed as a driver or conductor of a public service vehicle is required

to wear the prescribed badge at all times.

In the event that any of the PSV crew members loses their license or badge, he/

she is required to apply for a duplicate.

A driver of a PSV is also required to obtain a certificate of good conduct from the

Criminal Investigations Department. Many people bribe these officers in order to

fast track the acquisition of these certificates.

The law provides for many regulations to be followed by passengers of PSVs.

Among others, passengers must not:

a. Use obscene language or behave in a disorderly fashion,

b. Fraudulently use a defaced or altered ticket to travel

c. Enter or alight from any other part of the vehicle apart from the door,

d. Impede other passengers who wish to embark or alight,

e. Travel on the carrier or roof of a vehicle,f. Damage, soil or deface any part of the vehicle,

g. Engage in advertising, hawking, smoking, throwing litter out through the

windows,

h. Enter a PSV while intoxicated, or refuse to leave while intoxicated and having

been asked to leave.A passenger who contravenes these regulations shall be

guilty of an offence and liable to a fine not exceeding Kshs. 1,000, or in

default of payment, to imprisonment for a term not exceeding three months.

The Registrar of Motor Vehicles has the power to determine the maximumnumber of passengers, whether sitting or standing, and the weight of luggage

or goods allowed to be carried in any public service vehicle. The penalty for

overloading PSVs is a fine not exceeding Kshs 20,000 which is to be paid by

the owner. Note that the excess passengers can be charged in Court, and if found

guilty will pay a fine not exceeding Kshs. 600, or imprisoned for not more than

two months. (Because the fines are heavy, PSV crews are quick to offer bribes

when suspected of overloading.)


15/36


Every motor omnibus or matatu must carry an efficient fire extinguisher, which

must be maintained in good condition, and shall be carried in such a position as

to be readily available for use at any time. Those operating outside the limits of a

municipality must also carry a first aid kit sufficient to deal with any reasonable

emergency. Such a kit must be kept in a first class condition, and shall be available

for inspection at any time by a medical officer, an inspector of motor vehicles or any

police officer.

Which PSV regulations apply to termini (bus stops)?

All public service vehicles should only stop to drop and pick up passengers at

designated bus stops and nowhere else on the road6.

No public service vehicles, their conductors and/or drivers should make any

noise or sound any instrument that can annoy or inconvenience the public so as

to attract passengers (e.g. blaring horns and loud music) [This illegal practice is

referred to as touting]. The penalty for this is between Kshs 2,000 and 5,000

and the instrument used (e.g. the music system) may be confiscated.

In PracticeOften, PSVs drop and pick up passengers at any point on the road hence they disobey

the law. They also play loud music and have loud horns that sometimes annoy the

public while traffic police officers sometimes do not do anything about it because

they have been bribed to look the other way. Members of the public are also to blame

as they insist on alighting from vehicles or being picked at places other than the

designated bus stops.

Other Regulations relating to taxicabs and matatus

Every taxi and matatu shall have a painted continuous yellow band which has a

width of 150 millimetres (15 cm) on both sides and on the rear. The band should

be clearly visible from a distance of not less than 275 metres

6The Traffic Act of the Laws of Kenya, Section 102 (4)


16/36


PART THREE: POLICE ARREST

When can the police arrest someone?

Among other reasons, a Police officer can arrest a person who:

Is suspected of committing, or actually commits a serious offence in their presence;

these kind of offences being popularly known as cognizable offences,

Is found in a public place at night [e.g. highway] and is suspected of having

committed or is about to commit a felony [serious offence]

Obstructs them from properly carrying out their duties

Tries to escape from lawful custody,

Is suspected of having deserted from the Armed Forces,

Has a warrant of arrestissued against him/her.

However, all arrests must be carried out in line with the law that states, no person

shall be deprived of his personal liberty save as may be authorized by law 7.

Arrests are also authorized if a suspect is:

Convicted of a criminal offence in a court of law;

Charged with contempt of court;

Required to fulfil a legal duty by a court;

Ordered to appear in front of a court;

Suspected of having committed, or is about to commit, a criminal offence;

About to spread an infectious or contagious disease;

Under special circumstances, a person who has not attained the age of 18 years

may be arrested for the purpose of his education or well-being;

7The Constitution of Kenya , Section 72,

Protection of Right to Personal Liberty


17/36


Can anyone else, apart from the police, arrest people?

Powers of arrest vested in other officials, private persons andmagistrates:

In some cases, private persons and magistrates are empowered to carry out arrests.

A citizen may arrest any person who commits an offence, or who is reasonably

suspected of having committed one. Such a person must be handed over to the police

as quickly as possible after the arrest. For instance if one is caught breaking into

anothers house, [burglary] he should be arrested immediately since he has been

caught in the act. It is unnecessary in such cases to wait for a warrant.

Magistrates are also empowered to arrest any person who may commit an offence in

their presence and within the magistrates district of work [referred to as jurisdiction]

two examples stand out.

It is illegal to lie under oath [perjury]. Once a magistrate discovers that a

witness has stated a lie under oath, he may order for the immediate arrest of that

witness.

A magistrate may also order the immediate arrest of a person who is disrespectful

to the Court [commonly referred to as contempt of Court]. Such people will

ordinarily be tried by magistrates other than the arresting ones. The arresting

magistrate will attend the trial as a witness.

Other persons with some powers of arrest include askaris employed by local

authorities [for infringement of local authority by-laws]. City Council askarisuse

these provisions to arrest persons who are for instance littering and smoking in the

streets.

Chiefs, prisons officers [who may arrest any person trying to escape from custody,

or who commits an offence while in prison custody and

The armed forces [who may arrest any deserter or mutineer.]


18/36


What are people NOT supposed to be arrested for?

In Kenya, innocent civilians are arrested forflimsy reasons such as:

Loitering,

Failure/forgetting to carry identification documents such as the National Identity

Card

Idling

These are NOT offences under the law.

However, police are entitled to arrest idle and disorderly persons. These powers are

given by section 182 of the Penal Code. Idle and disorderly persons are defined to

include:

a every common prostitute behaving in a disorderly or indecent manner in any

public place,

b every person causing, procuring or encouraging any person to beg or gather

alms


19/36


20/36


What should happen during someones arrest?

When police officers arrest anyone, they are supposed to:

a Identify themselves

Police officers are supposed to identify themselves by producing their IDs and

showing their police force numbers. A person may also ask for the police officers

name, address, rank and police station where they are assigned9 .

b Give a reason for the arrest

One should be informed of the reason for their arrest. Their name, address and

the stated reason for arrest should then be recorded in the Occurrence Book. If

these procedures are not followed, one may lodge a complaint with the O.C.S of

the police station.

What happens after someone is arrested?

When someone is arrested, the law requires:

That the arrested person is presented to a court of law within 24 hours of arrest

If he/she is suspected to have committed or was about to commit a crime

punishable by death [known as a capital offences], they can be held in remand

for two weeks but must be produced in court within 14 days.

NOTE HOWEVER THAT ONE SHOULD NOT BE DETAINED LONGER

THAN THIS PERIOD. This is clearly explained in the Constitution10 . In case one

is held for longer than the prescribed period, such a person must raise a complaint

with the magistrate (for non-capital offences) on the day that he is taken to Court

to take a plea. The magistrate or judge will then be required to make a decision on

whether the fundamental rights of the suspect have been infringed due to the illegal

detention. The judge or magistrate may then discharge the accused.

Capital offences include murder, robbery with violence and treason. Those who are

charged with capital offences will go through their trials whilst in custody. It is also

common for many accused persons to stay in prison due to inability to raise cash

bail and/or bond.

NOTE: If investigations are to be carried out over a long period, then one should be

released on bail or bond.

9Ibid , Section 20 (1) (i)10The Constitution of Kenya, Section 72 (2),

Protection of Right to Personal Liberty


21/36


Bail and Bond

What is bail?

A cash bail is afi

nancial payment by or on behalf of a suspect, either at a policestation or deposited in a court. The payment is made as a commitment that the

suspect will appear in court for the hearing of the case against them.

What is a bond?

Unlike bail, a bonddoes not involve payment of cash. One is required to deposit in

court evidence of ownership of some asset worth a specified amount which would

be forfeited (surrendered) if the suspect does not appear in court. A certificate of

official search will be required to prove ownership, and an independent and crediblevaluation report to prove how much the asset is worth. A bond commitment is

sometimes backed up with a similar commitment by another person in the form of

a surety.

ANYONE WHO HAS BEEN ARRESTED HAS A RIGHT TO GO FREE ON

BAIL AND WAIT TO APPEAR IN COURT UNLESS HE/SHE IS BEING

INVESTIGATED FOR A CAPITAL OFFENCE.

When bail is granted by the police, one should ensure that the full amount of thesame is refunded when they first appear in court. The suspect should inform the

magistrate that he had paid some police bail. The magistrate will direct that the funds

are returned to the owner. In many cases, police return these funds automatically

once the suspect has taken a plea.

In Practice:Unfortunately, police officers rarely give cash bail even when the offence is minor.

In fact, bribes may be extorted from people so that bail is not given or suspects canbe freed without going to court.

Can a suspect contact other people or be visited when he/she has

been arrested?

When in police custody, a suspect has a right to:

A telephone call to contact friends, relatives or lawyer from the police stationfree of charge. This may rarely happen in practice, since many police stations


22/36


23/36


PART FOUR: THE COURTS

The Judiciary is the arm of government that interprets, promotes, protects and

upholds the rule of law in Kenya.

All courts should be independent, ensure quick decisions and enforce the principles

of fair trial. A fair trial must have the following:

A suspects rights as enshrined in the constitution ( Protection of Fundamental

Rights and Freedoms of the Individual) must be protected and guaranteed,

A suspect has a right to have legal representation (a lawyer of ones choice, paid

for by himself.

However note that, the Kenyan Constitution does not require the Government to

appoint lawyers to represent those who cannot afford to pay for legal services.

In murder trials, there is a practice, which is well entrenched in Kenya, whereby the

Court will appoint lawyers to defend the accused person. This is popularly known as

pro bono [free] defence and is paid for by the Government).

An accused person is allowed to call witnesses to give evidence in their favour,

and such witnesses if available must be allowed to testify.

Hearings should be held in open court [public] unless there is a clear danger to

witnesses and/or the complainant (e.g. the complainant is a minor or a victim of

rape).

What are Court Procedures?

The Law assumes that everyone is equal, and justice must be given to all without

fear or favour. Everyone is presumed to be innocent until proven guilty. It is the duty

of the Courts to ensure that:

With a few exceptions, the burden of proving that someone is guilty lies with the

prosecution,

The rights of a suspect are upheld. These rights include the ones mentioned

above. Other important rights include provisions that:


24/36


An accused person cannot be charged twice for the same offence

[known as the rule against double jeopardy]

An accused person is protected against self incrimination [it is the

responsibility of his accusers to prove his guilt].

The court must also be one that is not biased in favour of any side in

the case.

Measures that ensure a fair, speedy and just trial is carried out are present. The

Court must therefore reject unnecessary adjournments and do all that is necessary

to secure the quick attendance of witnesses.

The processes that are followed in a criminal case are:

Plea taking

Application for bail

Hearing of the case

Ruling

Judgement and sentencing

a. Plea Taking

Plea taking is the stage at which the court receives and records the accused persons

response to the charges made against him/her. At the suspects first appearance in

court, the charges against him/her are read and they should be read in a language

that the accused understands well [including his mother tongue if he so desires] or

that has been interpreted. The magistrate must inquire from the accused and record

whether he actually understands the language being used.

THESE CHARGES MUST BE THE SAME AS THE REASONS ONE IS

GIVEN AT THE TIME OF ARREST. Often, a person can be informed of a minor

offence and then charged with a serious offence, opening room for the prosecution

and the police to solicit bribes.

NOTE: When one understands the charges facing him, and of their own volition

pleads guilty, they cannot appeal. A plea of guilty removes the presumption of

innocence as far the person pleading is concerned.


25/36


Confessions made at a police station cannot be used as evidence in court unless they

have been made when a magistrate is present12. This is a legal requirement that must

be followed. However, sometimes police officers are bribed to harass and intimidate

others into making confessions on falsecharges.

Application for bail

In the event one pleads not guilty to a charge or refuses to plead at all, a not guilty

plea is recorded and a hearing date of the case is set.

Once a date is set, a suspect can be released pending determination of the case in

two ways:

Cash bail,

Bond with or without surety.

Bail is the conditional release of an accused person by the courts until the hearing

and solving of the case. THIS IS A CONSTITUTIONAL RIGHT, EXCEPT FOR

INSTANCES OF CAPITAL OFFENCES, that is to say, MURDER, ROBBERY

WITH VIOLENCE, ATTEMPTED ROBBERY AND TREASON. With a cash

bail, the accused deposits some money with the courts which is to be given back at

the end of the trial.

NOTE: Bail is not an absolute right, and therefore the magistrate can opt to grant,

refuse, withdraw or vary it depending on the circumstances of the case and the

likelihood of whether or not the accused person will present himself for his trial

In Practice:Sometimes, the magistrate, in collusion with the prosecutor and clerk can fix high

bail terms or deny bail altogether so that the accused can bribe in exchange for

a change in the bail terms. To overcome this, one has the right and can make an

application to the High Court for variation of the bail terms without succumbing to

further illegal activity such as bribing the court officers.

A person facing criminal proceedings has a right to be provided with copies of the

statements of his accusers and copies of exhibits in advance. This is to help him

in preparing for the trial. This has in practice given police a new avenue to ask for

bribes so that they can look for the file, photocopy documents etc. If an accused

person faces any trouble obtaining statements, he should complain to the magistrate

12The Evidence Act of the Laws of Kenya,

Section 25A (amendment )


26/36


who is hearing his case. The statements can then be supplied under the supervision

of the magistrate. The accused person will only be required to pay photocopying

charges.

Hearing of the case

During the hearing, the prosecution usually police officers (the Prosecutors) or

lawyers employed by the state (the State Counsel) produces evidence against the

accused person. Witnesses must be present to testify, and the accused person or his

advocate have a right to ask them questions [cross-examination].The prosecution

can also, for good reason, withdraw a case at any given moment. The Attorney

General is empowered to enter a writ known as a nolle prosequi which has the effect

of terminating a criminal case at any point.

In Practice:The prosecution sometimes withdraws cases when they are bribed. They may also

compromise cases by failing to do proper follow up of the same. This is simply done

by not pursuing the case any further or not calling witnesses, among others.

Ruling

At the end of the prosecutions case, the magistrate has to determine whether theaccused has a case to answer or not. There is a case to answer if the evidence is

strong or shows the probability that an offence was committed. In the event there is

no case to answer, the accused is released.

Once a suspect is found to have a case to answer, they are usually put on their

defence. Many suspects misinterpret this to mean that they will be convicted. BUT

IT SHOULD BE KNOWN THAT A CASE TO ANSWER MEANS THERE IS

EVIDENCE TO KEEP THE CASE GOING BUT THE SUSPECT HAS NOT

YET BEEN FOUND GUILTY. It is out of fear that at this point that suspects areapproached and terms of bribery set. These are intimidation tactics and the accused

should not submit as they are still innocent until proven guilty!


27/36


Judgment & Sentencing

This is the final step in the court process. It is based on the law as well as the

evidence given in court. The magistrate then decides (makes a verdict) depending

on the weight of the evidence given in court and also gives a sentence. In relation to

many offences, magistrates have a wide discretion to decide the kind of sentence to

impose. They can choose from among others:

a. Death by hanging [a mandatory sentence for capital offences]

b. Imprisonment,

c. Fine,

d. Unconditional discharge,

e. Conditional discharge,

f. Suspended sentence,

g. Probation,

h. Community service.

Many Kenyans do not know that before sentence is pronounced, they have a right

to mitigate [commonly referred to as malilio], which is their opportunity to show

remorse and plead for leniency. Many convicts thus ignore this opportunity, and

magistrates will assume that the refusal to mitigate is due to arrogance or lack of

remorse. This is a major opportunity for bribery because with the right amount of

money, justice is usually bought in the court corridors.

However, it is important to note that the law offers one the right to appeal to a

higher court within 14 days. If they do so, one can be released on bail pending the

determination of the appeal.


28/36


THE FOLLOWING TABLE CAPTURES SOME COMMON

OFFENSES WHERE BRIBES ARE SOLICITED AND HOW TO

AVOID PAYING THE BRIBE.

RELATING TO REGULAR POLICE OFFICERS & LOCALAUTHORITIES BY-LAWS

SITUATION HOW TO RESPOND LIKELY PENALTY

Idle and

Disorderly

conduct

Ascertain that your correct

names and alleged offence have

been correctly entered in the OB

before you are locked up in the

police cells. This will prevent

officers from substituting a

lesser for a more serious offence

and thereafter soliciting for a

bribe.

Imprisonment for one month

or a fine of Kshs 100 or both.

Imprisonment for One year

for each repeated offence.

Not carrying

Identification

Documents

It is not an offence not to carry

ID documents all the time.

Stand your ground and request

to be explained to, under what

law they intend to charge you.If they arrest you nonetheless,

ascertain correct entry of the

offence in the OB as above

Not Applicable

Search

without

Search

Warrant

Request that the officers

show their identification i.e.

Force Numbers/certificates

and disclose the purpose of

their search.

Arrest

without arrest

warrant

Request the officers to first

identify themselves and

disclose the reasons for

arresting you. At the Police

station, request to ensure that

the reason for your arrest has

been correctly entered in the

OB.13

13Suspects may apply, to the Officer Commanding Station (OCS), for a bail

bond to secure freedom pending arraignment to Court. This is a free service

and no fee is chargeable on it. All persons arrested without an arrest warrant

are to be arraigned to court without undue delay; within 24 hours if held for

minor offences and 14 days if reasonably held for suspicion of an offence

punishable by death.


29/36


30/36


Careless

parking in a

designated

parking area

Request officers to identify

themselves and ascertain correct

entry onto the charge sheet

Fine not exceeding Kshs.

200 and Kshs. 500 for

subsequent convictions.

Failure to

report an

accident as

a result of

which an

injury occurs,

or conceals

any facts from

or obstructs

a policeofficer while

investigating

the accident




Imprisonment for a term not

exceeding three months or

a fine not exceeding Kshs.

1000

Driving a

vehicle while

license is

under lawful

suspension




Imprisonment to a term not

exceeding nine months or


3000

Driving underthe influence

of drinks or

drugs to an

extent as not

to have proper

control of the

vehicle

Request officers to identifythemselves and ascertain correct


Imprisonment to a term notexceeding 18 months or to

a Kshs. 10, 000 or to both.

The convict will also be

disqualified from holding a

licence for 12 months

Driving

recklessly or at

high speed




Imprisonment to a term

not exceeding 6 months

or to a fine not exceeding

Kshs. 5000 or to both. The

magistrate may also suspend

the driving licence


31/36


Conducting

any animals

on a road

which become

a danger or

annoyance to

other users




A fine not exceeding Kshs.

5000

Overloading

a bicycle on a

road




A fine not exceeding Kshs.

200

Operating a

Public Service

Vehicle

businesswithout a valid

PSV license




Imprisonment to a term not

exceeding 6 months or to


5000

Driving or

acting as

conductor on

a PSV vehicle

without a

valid license

or allowingpersons not

so licensed to

do so



particulars are entered into the

charge sheet

A fine not less than Kshs.

2000 and not more than

Kshs. 5000

Stopping

to set down

or pick up

passengers at

undesignated

places




charge sheet



Kshs. 5000

Owning,

driving or

being in charge

of Taxicab

without proper

markings




charge sheet



Kshs. 5000


32/36


Overloading a

Public Service

Vehicle




charge sheet

The driver, conductor and

the owner shall be liable to


20,000

Touting Request officers to identify



charge sheet



Kshs. 5000

NOTE. In some instances, police may try to arrest persons while not

having warrants of arrest in some circumstances where warrants of

arrest are required. It is not advisable to resist arrest. Rather, it is better

to raise this issue with the magistrate at the earliest opportunity.


33/36


Organisations of Interest

ORGANISATION ADDRESS TELEPHONE

Kenya Human Rights

Commission (KHRC)

Opposite Valley Arcade,

Gitanga Road P.O. Box

41079 -00100 Nairobi

email: [email protected]

3876065 / 3874999

Kituo cha Sheria

(KITUO)

Ole Odume Rd., Off

Argwings Kodhek Rd.

P.O. Box 7483 - 00300

Ronald Ngala, Nairobi

Emai: info@kituochasheria.

or.ke

3876290 / 3874191 /

3874220 fax-3876295

Name and Shame

Corruption Network

(Nascon)

P.O. Box 46991,00100

Nairobi

254-20-3871614, 254-

20-3870740

Release Political

Prisoners (RPP)

Mbaruk Road, Off Muchai

Drive-off Ngong Rd.

P.O. Box 4636 00200

Nairobi

Email: [email protected]

2714607

Independent Medico -

Legal Unit (IMLU)

David Osieli Road, off

Waiyaki way, Westlands

P.O. Box 1271-00606

Nairobi

email: [email protected]

4441833 /

4450598

People Against Torture

(PAT)

27 Church Rd, westlands

P.O. box 5399-00100

Nairobi email:

[email protected]

4440442/

4446332

Federation of Kenya

Women Lawyers

(FIDA)

Amboseli Road

Off Gitanga Road

P.O. Box 46324-00100

Nairobi

email:[email protected]

3873511, 3876954,

3876991


34/36


35/36


Notes


36/36

Notes

Know Your Rights[1]

Documents

Transcript of Know Your Rights[1]