Article 49 Article 51

Article 48 Rights of arrested persons

1. An arrested person has the right Rights of persons detained,
ACCESS TO JUSTICE (a) to be informed promptly, in language that the person understands,
held in custody or imprisoned
of
i. the reason for the arrest;

The State shall ensure access to justice ii. the right to remain silent; and
iii. the consequences of not remaining silent;
for all persons and, if any fee is required, it (b) to remain silent;
shall be reasonable and shall not impede (c) to communicate with an advocate, and other persons whose
access to justice. assistance is necessary;

(d) not to be compelled to make any confession or admission that could

be used in evidence against the person;

(e) to be held separately from persons who are serving a sentence;

(f) to be brought before a court as soon as reasonably possible, but

not later than
i. twenty-four hours after being arrested; or
ii. if the twenty-four hours ends outside ordinary court hours, or on a day
that is not an ordinary court day, the end of the next court day; 1. A person who is detained or held in custody or imprisoned under
J  DWWKHߔUVWFRXUWDSSHDUDQFHWREHFKDUJHGRULQIRUPHGRIWKHUHDVRQIRUWKH the law retains all the rights and fundamental freedoms in the Bill of
detention continuing, or to be released; and Rights, except to the extent that any particular right or freedom is
(h) to be released on bond or bail, on reasonable conditions, pending a charge or clearly incompatible with the fact that the person is detained, held in
trial, unless there are compelling reasons not to be released. custody or imprisoned.
2. A person shall not be remanded in custody for an offence if the offence
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2. A person who is detained or held in custody is entitled to petition for
an order of habeas corpus.
months.

The State shall ensure access to justice for all persons and, if any fee is The State shall ensure access to justice for all persons and, if any fee is The State shall ensure access to justice for all persons and, if any fee is
required, it shall be reasonable and shall not impede access to justice. required, it shall be reasonable and shall not impede access to justice. required, it shall be reasonable and shall not impede access to justice.

For any concerns or complaints: Mobile: 0711944555/ 0732529995 For any concerns or complaints: Mobile: 0711944555/ 0732529995 For any concerns or complaints: Mobile: 0711944555/ 0732529995
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ARTICLE 50 ARTICLE 24
Fair Hearing

Regulations on Writing
(1) Every person has the right to have any dispute that can be resolved by the application of law
decided in a fair and public hearing before a court or, if appropriate, another independent and impartial Limitation of rights and fundamental freedoms
tribunal or body.
Statement Under Inquiry Every accused person has the right to a fair trial. which includes the right - When can a right be :KDWPDNHVDOLPLWDWLRQ
limited? legally valid?
1. Constitutional Rights
(Article 49 & 50 – Constitution of Kenya, 2010) To be presumed innocent until the contrary is To remain silent, and not to testify during the
proved; proceedings; Nature of the right Expressly stated in law
‫ݾ‬Right to remain silent: Not to be compelled to make any confession or admission that could be /DZPXVWVSHFLߔFDOO\VWDWH
used in evidence against the person; (Article 49(1)(d).
‫ݾ‬Right to legal representation: You can have a lawyer present when writing a statement intention and extent.
To be informed in advanced of the evidence
(Article 49(1)(c), 50(2)(g)). 7REHLQIRUPHGRIWKHFKDUJHZLWKVXIߔFLHQW Importance of the limitation’s
the prosecution intends to reply on, and to
‫ݾ‬Right against self-incrimination: You cannot be forced to confess to a crime detail to answer it; have seasonable access to that evidence; purpose
(Article 50(2)(l)).
&OHDUDQGVSHFLߔF
Nature & extent of the /DZPXVWFOHDUO\GHߔQHZKDW
To have adequate time and facilities to prepare To adduce and challenge evidence;
limitation right is being limited.
2. How a Statement is Written a defence;
No prejudice to others’ rights
(Under Police Standing Orders)
1. Voluntary Basis: The person must write the statement voluntarily—no threats, inducement, or torture should be Not harming the core right
used. To a public trial before a court established To refuse to give self-incriminating evidence; Law cannot destroy the core
2. Language: The statement must be recorded in a language the person understands. under this Constitution; Is the limitation proportional &
3. Written in First Person:7KHLQGLYLGXDOVKRXOGZULWHRUGLFWDWHWKHVWDWHPHQWLQWKHߔUVWSHUVRQ ‫ژ‬,‫ ڙ‬ least restrictive? of the right.
4. Caution Before Statement (for suspects):
• The police must issue a caution before taking a statement from a suspect.
• A typical caution is: To have the assistance of an interpreter
“You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in To have the trial begin and conclude without without payment if the accused person cannot
writing and may be given in evidence.” unreasonable delay; understand the language used at the trial; Who must justify the Application for Muslim
limitation?
5. Signing the Statement:
 ‫ڞ‬7KHSHUVRQPXVWUHDGDQGVLJQWKHVWDWHPHQWDIWHUFRQߔUPLQJLWVDFFXUDF\
• If the person is illiterate, it must be read to them in a language they understand and a thumbprint may be
personal law
used. To be present when being tried, unless the To appeal to, or apply for review by, a higher
6. :LWQHVVHGE\2IߔFHU conduct of the accused person makes it court as prescribed by law. Equality rights may be limited
 ‫ڞ‬7KHUHFRUGLQJRIߔFHUPXVWVLJQWKHVWDWHPHQWDQGLQGLFDWHWLPHGDWHDQGORFDWLRQ impossible for the trial to proceed; The State or person seeking only as ‘strictly necessary’ for
• A witness may be present, especially in the case of confessions.
the limitation must prove it Muslim personal matters (e.g.
Not to be convicted for an act of omission that meets all these conditions in Marriage, inheritance) before
To choose, and be represented by, an
advocate, and to be informed of this right
at the time was committed or omitted was not- court or tribunal Kadhis’ Courts
(i) an offence in kenya or
3. Confessions & Statements Under Inquiry promptly;
(ii) a crime under international law;
(Evidence Act – Sections 25A & 26)
7RWKHEHQHߔWRIWKHOHDVWVHYHUHRIWKH
Application to security forces and
‫&ݾ‬RQIHVVLRQVE\VXVSHFWV are only admissible in court if made:
o Before a magistrate, or prescribed punishments for an offence, if the Not to be tried for an offence in respect of
an act or omission for which the accused
R%HIRUHDSROLFHRIߔFHURIWKHUDQNRI&KLHI,QVSHFWRURUDERYH and
o In the presence of a third party (e.g., a lawyer, parent, or independent adult).
prescribed punishment for the offence has been
charged between the time that the offence was person has previously been either acquitted or National Police Service
committed and the time of sentencing; convicted;

The State shall ensure access to justice for all persons and, if any fee is The State shall ensure access to justice for all persons and, if any fee is The State shall ensure access to justice for all persons and, if any fee is
required, it shall be reasonable and shall not impede access to justice. required, it shall be reasonable and shall not impede access to justice. required, it shall be reasonable and shall not impede access to justice.

For any concerns or complaints: Mobile: 0711944555/ 0732529995 For any concerns or complaints: Mobile: 0711944555/ 0732529995 For any concerns or complaints: Mobile: 0711944555/ 0732529995
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