Ask a lawyer:
Can I sue the police/state if I was arrested under mistakes identity?
Yes, you can sue the police or the state if you were arrested under mistaken identity. This is a case of wrongful arrest, which is a violation of your fundamental rights under the Kenyan Constitution.
Table of Contents
Wrongful Arrest
Legal Framework
Grounds for a Lawsuit
Case Laws
Procedure for Filing a Lawsuit
Remedies
Conclusion
1. Wrongful Arrest
Wrongful arrest occurs when a person is arrested without legal justification. This can happen when the police lack probable cause to believe that the person has committed a crime, or when the arrest is made in violation of the law.
2. Legal Framework
The Kenyan Constitution guarantees the right to liberty and security of the person. Article 29 of the Constitution states that:
Every person has the right to liberty and security of the person.
This right is further elaborated upon in Article 49, which states that:
Every person has the right to be presumed innocent until proven guilty.
The Constitution also provides for the right to a fair trial, which includes the right to be informed of the charge against them, the right to legal representation, and the right to a fair and impartial hearing.
3. Grounds for a Lawsuit
You can sue the police or the state for wrongful arrest if you can prove that:
You were arrested without probable cause.
The arrest was made in violation of the law.
You suffered damages as a result of the arrest.
4. Case Laws
Several Kenyan case laws have addressed the issue of wrongful arrest. Some of these cases include:
Mwaniki v Republic [2003] eKLR - This case involved the arrest of a suspect without a warrant. The court held that the arrest was unlawful and ordered the release of the suspect.
Republic v Commissioner of Police [2010] eKLR - This case involved the arrest of a person who was later found to be innocent. The court held that the police were liable for damages for wrongful arrest.
Otieno v Republic [2015] eKLR - This case involved the arrest of a person who was detained for an extended period without being charged. The court held that the detention was unlawful and ordered the release of the suspect.
5. Procedure for Filing a Lawsuit
To file a lawsuit for wrongful arrest, you will need to:
Consult with a lawyer. A lawyer can help you determine if you have a valid claim and can assist you in filing the lawsuit.
File a complaint. The complaint should state the facts of the case and the legal grounds for your claim.
Serve the complaint. The complaint must be served on the police or the state.
Attend court hearings. You will need to attend court hearings to present your case.
6. Remedies
If you are successful in your lawsuit, you may be awarded the following remedies:
Damages. This can include compensation for your lost wages, medical expenses, and emotional distress.
Injunction. This is a court order that prevents the police from arresting you again without probable cause.
Declaration. This is a court order that declares that the arrest was unlawful.
7. Conclusion
If you have been arrested under mistaken identity, you may have a valid claim for wrongful arrest. It is important to consult with a lawyer to discuss your legal options. You may be able to sue the police or the state for damages, an injunction, or a declaration.
Sources:
Answered by mwakili.com