Ask a lawyer:
Can I sue the police/state if I was arrested under mistakes identity?
Table of Contents
Introduction
Legal Grounds for Suing the Police/State
False Arrest
Malicious Prosecution
Violation of Constitutional Rights
Relevant Case Laws
Steps to Take When Suing the Police/State
Gathering Evidence
Consulting with an Attorney
Filing a Complaint
Conclusion
Sources
1. Introduction
In Kenya, being arrested due to mistaken identity can be a traumatic and distressing experience. If you find yourself in such a situation, you may have legal grounds to sue the police or the state for the wrongful arrest. This article will explore the legal avenues available to you, the relevant case laws, and the steps you should take to seek redress.
2. Legal Grounds for Suing the Police/State
2.1 False Arrest
False arrest, also known as wrongful arrest, occurs when an individual is detained without legal justification. In Kenya, this is a common law tort where the plaintiff alleges that they were held in custody without probable cause or without an order issued by a court of competent jurisdiction. If you were arrested due to mistaken identity, you could argue that the arrest lacked probable cause, making it a false arrest.
Source: Wikipedia - False Arrest ↗
2.2 Malicious Prosecution
Malicious prosecution is another legal ground for suing the police or the state. This tort involves intentionally and maliciously instituting and pursuing a legal action (civil or criminal) that is brought without probable cause and is dismissed in favor of the victim. If the police or state pursued charges against you knowing that you were not the intended suspect, you could have a case for malicious prosecution.
Source: Wikipedia - Malicious Prosecution ↗
2.3 Violation of Constitutional Rights
The Constitution of Kenya provides for the protection of individual rights and freedoms. If your arrest due to mistaken identity involved the violation of your constitutional rights, such as the right to liberty, you could sue the police or the state for these violations. Article 29 of the Kenyan Constitution 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.
Source: Constitution of Kenya ↗
3. Relevant Case Laws
Several case laws in Kenya provide precedents for suing the police or the state for wrongful arrest due to mistaken identity:
Mohamed Feisal & 19 Others v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 Others: In this case, the court held that an arrested person may be acquitted on proof of wrongful arrest or mistaken identity and can seek further redress, such as damages and declaration of rights in a Constitutional Court.
Source: Legal Nutshells - Rights of an Arrested Person in Kenya ↗
4. Steps to Take When Suing the Police/State
4.1 Gathering Evidence
The first step in suing the police or the state is to gather all relevant evidence that supports your claim of wrongful arrest. This may include:
Witness statements
Surveillance footage
Medical reports (if you were injured during the arrest)
Any documents or records related to the arrest
4.2 Consulting with an Attorney
It is crucial to seek legal counsel from an experienced attorney who specializes in cases of false arrest and police misconduct. An attorney can help you understand your rights, evaluate the strength of your case, and guide you through the legal process.
4.3 Filing a Complaint
Once you have gathered sufficient evidence and consulted with an attorney, the next step is to file a formal complaint against the police or the state. This complaint should detail the circumstances of your arrest, the evidence supporting your claim, and the legal grounds on which you are suing.
5. Conclusion
Being arrested due to mistaken identity is a serious issue that can have significant personal and legal repercussions. In Kenya, you have the right to seek redress through legal avenues such as suing for false arrest, malicious prosecution, or violation of constitutional rights. By gathering evidence, consulting with an attorney, and filing a formal complaint, you can take steps to hold the responsible parties accountable and seek compensation for the harm you have suffered.
6. Sources
By understanding your rights and the legal options available to you, you can take the necessary steps to seek justice and hold those responsible for your wrongful arrest accountable.
Answered by mwakili.com