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Can I sue the police/state if I was arrested under mistakes identity?

Introduction

In Kenya, the legal framework provides avenues for individuals to seek redress if they believe their rights have been violated, including cases of wrongful arrest due to mistaken identity. This response will explore the legal provisions and processes involved in suing the police or the state for wrongful arrest under mistaken identity.

Table of Contents

  1. Legal Framework

    • Constitution of Kenya, 2010

    • National Police Service Act, 2011

    • Civil Procedure Act, Cap 21

    • Government Proceedings Act, Cap 40

  2. Grounds for Suing

    • Violation of Constitutional Rights

    • Tort of False Imprisonment

    • Tort of Malicious Prosecution

  3. Procedure for Suing

    • Notice of Intention to Sue

    • Filing a Suit

    • Burden of Proof

    • Remedies Available

  4. Case Law

    • Relevant Judicial Precedents

  5. Conclusion

1. Legal Framework

Constitution of Kenya, 2010

  • Article 22: Provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, or infringed.

  • Article 29: Guarantees the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause.

  • Article 49: Outlines the rights of arrested persons, including the right to be informed promptly of the reasons for the arrest and to be brought before a court as soon as reasonably possible.

National Police Service Act, 2011

  • Section 49: Stipulates the duties and responsibilities of police officers, including the requirement to act within the law and respect the rights of individuals.

Civil Procedure Act, Cap 21

  • Provides the procedural rules for filing civil suits in Kenya, including suits against the government or its agencies.

Government Proceedings Act, Cap 40

  • Section 13: Allows for civil proceedings to be brought against the government in the same manner as against a private person.

2. Grounds for Suing

Violation of Constitutional Rights

  • Article 22 and Article 23 of the Constitution: Allow individuals to seek redress for violations of their constitutional rights. If you were wrongfully arrested due to mistaken identity, you could argue that your rights under Article 29 (freedom and security of the person) and Article 49 (rights of arrested persons) were violated.

Tort of False Imprisonment

  • Definition: False imprisonment occurs when a person is unlawfully restrained or detained without legal justification.

  • Elements: To succeed in a claim for false imprisonment, you must prove that:

    • You were detained or restrained.

    • The detention was unlawful.

  • Case Law: In the case of Gichanga v. BAT (K) Ltd [2001] 1 EA 128, the court held that false imprisonment is the unlawful restraint of a person’s freedom of movement.

Tort of Malicious Prosecution

  • Definition: Malicious prosecution involves instituting criminal proceedings against someone without reasonable and probable cause, and with malice.

  • Elements: To succeed in a claim for malicious prosecution, you must prove that:

    • The prosecution was initiated by the defendant.

    • The prosecution terminated in your favor.

    • There was no reasonable and probable cause for the prosecution.

    • The prosecution was actuated by malice.

  • Case Law: In Mbowa v. East Mengo District Administration [1972] EA 352, the court outlined the elements required to establish a claim for malicious prosecution.

3. Procedure for Suing

Notice of Intention to Sue

  • Government Proceedings Act, Section 13A: Requires that a notice of intention to sue be served on the Attorney General at least 30 days before instituting a suit against the government or its agencies.

Filing a Suit

  • Civil Procedure Act: The suit is filed in the appropriate court, usually the High Court, by way of a plaint. The plaint should outline the facts of the case, the legal grounds for the claim, and the relief sought.

Burden of Proof

  • Standard of Proof: In civil cases, the standard of proof is on a balance of probabilities. You must provide sufficient evidence to show that it is more likely than not that your rights were violated or that you were falsely imprisoned or maliciously prosecuted.

Remedies Available

  • Damages: The court may award compensatory damages for the harm suffered, including loss of liberty, emotional distress, and any financial losses incurred.

  • Declaratory Relief: The court may issue a declaration that your rights were violated.

  • Injunctions: The court may issue orders to prevent further violations of your rights.

4. Case Law

Relevant Judicial Precedents

  • Gichanga v. BAT (K) Ltd [2001] 1 EA 128: This case provides guidance on the elements required to establish a claim for false imprisonment.

  • Mbowa v. East Mengo District Administration [1972] EA 352: This case outlines the elements required to establish a claim for malicious prosecution.

  • Gitobu Imanyara & 2 others v. Attorney General [2016] eKLR: The Court of Appeal held that the state is liable for the actions of its agents, including police officers, if they violate an individual's constitutional rights.

Conclusion

In conclusion, if you were wrongfully arrested due to mistaken identity, you have the legal right to sue the police or the state for violation of your constitutional rights, false imprisonment, or malicious prosecution. The legal framework in Kenya, including the Constitution, the National Police Service Act, the Civil Procedure Act, and the Government Proceedings Act, provides the necessary provisions for seeking redress. It is advisable to consult with a legal professional to guide you through the process and ensure that your claim is properly presented and supported by the necessary evidence.

Answered by mwakili.com