Ask a lawyer:
Can I sue the police/state if I was arrested under mistakes identity?

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Introduction

This response will address the question of whether one can sue the police or the state for wrongful arrest due to mistaken identity. It will delve into the relevant legal provisions within the Kenyan legal framework, including the Constitution of Kenya, 2010, and the relevant Acts.

Legal Framework 1.1. The Constitution of Kenya, 2010 1.2. The Law Reform Act, Cap 26 1.3. The Police Service Act, 2011
Wrongful Arrest and Mistaken Identity 2.1. Elements of Wrongful Arrest 2.2. Mistaken Identity as a Ground for Wrongful Arrest
Remedies for Wrongful Arrest 3.1. Civil Action for Damages 3.2. Criminal Proceedings
Conclusion

Legal Framework

1.1. The Constitution of Kenya, 2010

The Constitution of Kenya, 2010, is the supreme law of Kenya and guarantees fundamental rights and freedoms to all citizens. Article 49 of the Constitution guarantees the right to personal liberty, stating that every person has the right to liberty and security of the person. This right includes the right not to be deprived of liberty except in accordance with the law.

1.2. The Law Reform Act, Cap 26

The Law Reform Act, Cap 26, provides for the law of torts in Kenya, including the tort of false imprisonment. Section 3 of the Act defines false imprisonment as the unlawful detention of a person without lawful justification.

1.3. The Police Service Act, 2011

The Police Service Act, 2011, governs the operations of the police service in Kenya. Section 10 of the Act outlines the powers of arrest, stating that a police officer may arrest a person without a warrant if they have reasonable grounds to suspect that the person has committed an offense.

Wrongful Arrest and Mistaken Identity

2.1. Elements of Wrongful Arrest

A wrongful arrest occurs when a person is detained without lawful justification. The elements of wrongful arrest include:

Detention: The person must be detained or deprived of their liberty.
Unlawfulness: The detention must be unlawful, meaning it is not authorized by law.
Absence of Justification: There must be no lawful justification for the detention.

2.2. Mistaken Identity as a Ground for Wrongful Arrest

Mistaken identity can be a ground for wrongful arrest if the police arrest the wrong person based on a mistaken belief that they are the person who committed the offense. In such cases, the arrest would be unlawful because it is not based on reasonable grounds to suspect that the arrested person committed the offense.

Remedies for Wrongful Arrest

3.1. Civil Action for Damages

A person who has been wrongfully arrested can sue the police or the state for damages. This is a civil action based on the tort of false imprisonment. The person can claim damages for:

Loss of liberty: This includes compensation for the time spent in detention.
Mental distress: This includes compensation for the emotional suffering caused by the wrongful arrest.
Financial losses: This includes compensation for any financial losses incurred as a result of the wrongful arrest, such as lost wages or business opportunities.

3.2. Criminal Proceedings

In some cases, a person who has been wrongfully arrested may also be able to pursue criminal proceedings against the police officer who made the arrest. This would be possible if the arrest was made without reasonable grounds or if the police officer acted maliciously.

Conclusion

In conclusion, a person who has been arrested under mistaken identity can sue the police or the state for wrongful arrest. The arrest would be unlawful if it was not based on reasonable grounds to suspect that the arrested person committed the offense. The person can claim damages for loss of liberty, mental distress, and financial losses. They may also be able to pursue criminal proceedings against the police officer who made the arrest. It is important to note that the success of any legal action will depend on the specific circumstances of the case and the evidence presented.