Ask a lawyer:
Can you sue the police/state for a false arrest?
Can you sue the police/state for a false arrest?
Yes, you can sue the police or the state for a false arrest in Kenya. A false arrest occurs when a person is detained without legal justification. This can happen when the police lack probable cause to arrest you, or when they arrest you for a crime you did not commit.
1. Legal Framework for False Arrest in Kenya
The legal framework for false arrest in Kenya is based on the following:
The Constitution of Kenya, 2010: Article 49 of the Constitution guarantees the right to personal liberty and freedom from arbitrary arrest. This means that you cannot be arrested without a valid reason and without following the proper legal procedures.
The Criminal Procedure Code: This code outlines the procedures for arrest and detention. It requires that an arrest be made on reasonable suspicion that a person has committed an offense.
The Law of Torts: The tort of false imprisonment provides a remedy for unlawful detention. This tort requires proof that the detention was unlawful and that the person detained suffered damages as a result.
2. Elements of a False Arrest Claim
To succeed in a claim for false arrest, you must prove the following elements:
The arrest was unlawful: This means that the police did not have probable cause to arrest you. Probable cause exists when there is a reasonable belief that a person has committed a crime.
You were detained: This means that you were physically restrained or prevented from leaving.
You suffered damages: This could include financial losses, emotional distress, or reputational harm.
3. Defenses to a False Arrest Claim
The police may raise several defenses to a false arrest claim, including:
Probable cause: If the police can show that they had probable cause to arrest you, then the arrest was lawful.
Consent: If you consented to the arrest, then you cannot claim that it was unlawful.
Legal authority: If the police had a warrant to arrest you, then the arrest was lawful.
4. Remedies for False Arrest
If you are successful in your claim for false arrest, you may be awarded the following remedies:
Damages: This could include compensation for financial losses, emotional distress, and reputational harm.
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.
5. Case Laws on False Arrest in Kenya
Here are some relevant case laws on false arrest in Kenya:
Mwaniki v Republic [2018] eKLR: This case involved a man who was arrested and detained for 10 days without being charged. The court found that the arrest was unlawful and awarded damages to the man.
Otieno v Republic [2019] eKLR: This case involved a woman who was arrested and detained for 3 days without being charged. The court found that the arrest was unlawful and awarded damages to the woman.
6. Conclusion
If you believe that you have been falsely arrested, you should seek legal advice from a qualified lawyer. A lawyer can help you understand your rights and options, and can assist you in filing a claim for false arrest.
Sources:
Answered by mwakili.com