Criminal Defence in Kenya: What to Do After Arrest or Being Charged

Being arrested or charged with a criminal offence in Kenya can be a serious and stressful experience. However, an arrest or criminal charge does not by itself establish guilt, and an accused person remains entitled to the applicable constitutional and legal protections. Understanding what to do after arrest, your rights, the court process, bail or bond and the role of a criminal defence lawyer in Kenya can help you make informed decisions as your matter progresses.

 

What Should You Do After Being Arrested in Kenya?

If you have been arrested in Kenya, it is important to remain calm and understand what is happening before taking significant steps. The Constitution provides specific rights to arrested persons, including the right to be informed of the reason for arrest, remain silent and communicate with an advocate. Consider the following steps:

1. Stay Calm and Understand the Situation

Try to remain calm and establish why you have been arrested and where you are being held. Avoid taking actions that could unnecessarily complicate the situation, particularly before obtaining legal advice.

2. Ask Why You Are Being Arrested

An arrested person has the right to be informed promptly, in a language they understand, of the reason for the arrest. Understanding the allegation can help you and your advocate assess the appropriate legal response.

3. Exercise Your Legal Rights

The Constitution protects several rights immediately after arrest, including the right to remain silent, communicate with an advocate and not be compelled to make a confession or admission that could be used against you.

4. Request Legal Representation

You may communicate with an advocate and seek legal assistance. Contacting a criminal defence lawyer in Kenya at an early stage can help you understand the allegation, your rights and the appropriate steps to take.

5. Avoid Making Unnecessary Statements

You have a constitutional right to remain silent. This does not mean that you should obstruct lawful investigations or proceedings, but you should understand your rights before making significant statements or admissions.

6. Keep Important Documents and Information Safe

Where possible, preserve documents, messages, records and other information that may be relevant to the matter. Do not destroy, alter or conceal potential evidence. Instead, discuss relevant material with your advocate so it can be assessed appropriately.

What Are Your Rights After Arrest in Kenya?

The Constitution of Kenya provides important protections for arrested persons. Understanding these rights can help you recognize when legal assistance may be necessary:

1. Right to Be Informed of the Reason for Arrest

An arrested person has the right to be informed promptly, in a language they understand, of the reason for the arrest. The person must also be informed of the right to remain silent and the consequences of not remaining silent.

2. Right to Remain Silent

An arrested person has the constitutional right to remain silent. The Constitution also protects an arrested person from being compelled to make a confession or admission that could be used as evidence against them.

3. Right to Communicate With an Advocate

An arrested person has the right to communicate with an advocate and other persons whose assistance is necessary. Seeking legal advice can be particularly important where the allegation is serious or the circumstances of the arrest are disputed.

4. Right to Be Brought Before a Court Within the Required Period

An arrested person should generally be brought before a court as soon as reasonably possible and not later than 24 hours after arrest, subject to the constitutional qualification concerning when the 24-hour period ends outside ordinary court hours or on a non-court day.

5. Right to Bail or Bond Where Applicable

The Constitution provides for release on bond or bail on reasonable conditions pending a charge or trial unless there are compelling reasons not to release the person. The particular circumstances of the case can affect the decision and conditions imposed.

6. Right to Fair Trial

An accused person has the right to a fair trial, including the right to be presumed innocent until the contrary is proved, adequate time and facilities to prepare a defence, representation by an advocate and the opportunity to challenge evidence.

What Happens After Being Charged With a Criminal Offence in Kenya?

Being charged with a criminal offence is not the same as being convicted. Once a person is formally brought before a court, the matter generally progresses through several stages, although the exact procedure can vary depending on the offence, court and circumstances:

1. Understanding the Charge

The accused person should understand the charge brought against them and the allegations forming its basis. The Constitution requires an accused person to be informed of the charge with sufficient detail to answer it.

2. Taking the Plea

At plea-taking, the substance of the charge is stated to the accused person and they are asked whether they plead guilty, not guilty or, where applicable, guilty subject to a plea agreement. If the accused does not admit the charge, the matter proceeds for hearing.

3. Bail or Bond Considerations

Depending on the circumstances, an accused person may seek release on bail or bond pending trial. The court may consider factors relevant to the administration of justice when determining whether to grant bail or bond and what conditions should apply.

4. Case Preparation

The defence may review the charge, available evidence, witness information and other relevant material to determine the appropriate response. An accused person has the right to adequate time and facilities to prepare a defence.

5. Prosecution Evidence

Where the matter proceeds to trial, the prosecution presents its evidence through witnesses and other admissible material. The defence may challenge the prosecution’s evidence in accordance with the applicable procedure.

6. Defence Response

Depending on how the proceedings develop, the accused may present a defence and call or otherwise rely on evidence where appropriate. The specific approach depends on the charge, evidence and circumstances of the case.

7. Judgment and Sentencing Where Applicable

After the relevant proceedings, the court determines the matter. Where there is a conviction, sentencing follows in accordance with the applicable law and circumstances. A conviction and sentence may also be subject to legal avenues of challenge where available.

What Is the Role of a Criminal Defence Lawyer in Kenya?

A criminal defence lawyer in Kenya provides legal advice and representation to an accused person or other client involved in a criminal matter. The lawyer’s role is not to guarantee a particular result, but to provide legal assistance based on the facts, applicable law and procedural requirements:

1. Advising You About the Charge

A lawyer can explain the nature of the allegation, the relevant legal issues and the potential procedural steps involved in the matter.

2. Protecting Your Legal Rights

A criminal defence lawyer can advise on constitutional and procedural rights throughout the criminal process and raise appropriate concerns where those rights may have been infringed.

3. Reviewing Evidence

The defence may examine relevant evidence, witness information, documents and other material to identify issues that may require legal attention.

4. Preparing Your Defence

Depending on the circumstances, a lawyer can help develop an appropriate defence strategy based on the charge, available evidence and applicable law.

5. Representing You in Court

A criminal defence lawyer can represent a client during applicable court proceedings, including plea-taking, applications, hearings and other stages of the criminal matter.

6. Advising on Bail and Bond

A lawyer can advise on bail and bond applications, applicable considerations and the conditions that may be imposed. Bail and bond decisions remain matters for the relevant authority or court.

7. Challenging Procedural or Evidentiary Issues Where Appropriate

Where the circumstances justify it, a lawyer may raise appropriate legal objections, challenge evidence or address procedural issues in accordance with the applicable law.

When Should You Contact a Criminal Defence Lawyer in Kenya?

Legal advice can be useful at different stages of a criminal matter, particularly before significant decisions are made:

1. Immediately After Arrest

Early legal advice can help you understand the allegation, your rights and the next procedural steps.

2. Before Making Important Statements

If you are being asked to provide significant information or make statements concerning an allegation, legal advice can help you understand the implications of the process.

3. Before Taking Plea

A lawyer can explain the charge and the implications of the available plea before the matter progresses.

4. When Applying for Bail or Bond

Legal representation can assist with presenting and responding to issues relevant to a bail or bond application.

5. When Facing a Serious Criminal Charge

Serious allegations can carry significant legal consequences, making timely legal advice particularly important.

6. When You Have Received a Court Summons

A court summons should not be ignored. Seeking legal advice can help you understand the allegation, court requirements and appropriate response.

7. When You Believe Your Rights Have Been Violated

If you believe your rights were not respected during arrest, detention or proceedings, a lawyer can assess the circumstances and advise on the legal options that may be available.

What Happens During a Criminal Trial in Kenya?

The exact procedure can vary depending on the offence, court and circumstances. However, a criminal matter that proceeds to trial may generally involve the following stages:

1. Plea and Preliminary Proceedings

The accused is informed of the charge and enters the applicable plea. Further directions and applications may follow depending on the case.

2. Prosecution Case

The prosecution presents its evidence and calls witnesses in support of the charge.

3. Cross-Examination of Prosecution Witnesses

The defence may challenge prosecution evidence through cross-examination in accordance with the applicable rules and procedure.

4. Defence Case

Where the matter proceeds to the defence stage, the accused may present their defence in accordance with the applicable law and court directions.

5. Closing Submissions

The parties may make submissions addressing the evidence and applicable law before the court makes its determination, where the procedure calls for submissions.

6. Judgment

The court considers the evidence and applicable law before determining whether the prosecution has established the case to the required legal standard.

7. Sentencing Where There Is a Conviction

If there is a conviction, the court may proceed to sentencing in accordance with the applicable law. The sentence depends on the offence, statutory provisions and circumstances considered by the court.

What Is the Difference Between Being Arrested, Charged and Convicted?

These terms describe different stages of the criminal justice process:

1. Arrest

An arrest involves a person being taken into lawful custody in connection with an alleged offence. An arrest does not by itself establish that the person committed the offence.

2. Being Charged

Being charged means that a person is formally accused of a criminal offence through the applicable legal process. A charge is an allegation that must be dealt with through the criminal justice process and does not itself establish guilt.

3. Conviction

A conviction occurs when a court determines that an accused person is guilty of an offence after the applicable proceedings. Until guilt is established according to law, an accused person is entitled to the applicable protections, including the presumption of innocence.

Can You Get Bail or Bond After Being Arrested in Kenya?

Yes, bail or bond may be available depending on the circumstances, although it is not appropriate to assume that every accused person will automatically be released on identical terms. The Constitution recognizes the right to release on bond or bail on reasonable conditions unless there are compelling reasons not to release the person.

1. What Is Bail?

Bail generally refers to the release of an accused or arrested person subject to conditions intended to secure attendance as required by the relevant authority or court.

2. What Is Bond?

Bond is an undertaking to attend court as required, and may involve sureties depending on the terms imposed.

3. Is Bail an Automatic Right?

The constitutional right to bail or bond is subject to the qualification that compelling reasons may justify refusal of release. The specific circumstances therefore matter in each case.

4. What Factors Can Affect Bail or Bond?

The decision may involve considerations such as the likelihood of the accused attending court, the circumstances of the case, potential interference with witnesses, the protection of victims and other relevant interests.

5. What Happens If Bail or Bond Conditions Are Breached?

Failure to comply with bail or bond conditions can have legal consequences, including possible reconsideration of release. The specific consequences depend on the circumstances and the terms imposed.

What Should You Do If You Are Falsely Accused of a Crime in Kenya?

Being accused of an offence can be stressful, particularly where you maintain that the allegation is false. Avoid reacting impulsively and focus on preserving relevant information and obtaining appropriate legal advice:

1. Do Not Assume You Must Prove Your Innocence Immediately

A criminal accused person is presumed innocent until the contrary is proved. The prosecution bears the applicable burden of establishing the case in accordance with the law.

2. Preserve Relevant Evidence

Keep relevant messages, documents, photographs, records and other material that may assist in understanding the circumstances. Do not alter or destroy potential evidence.

3. Identify Potential Witnesses

Make a record of people who may have relevant information, including their contact details where lawfully available. Discuss potential witnesses with your advocate rather than attempting to influence their evidence.

4. Avoid Discussing the Case Publicly

Public discussions, social-media posts or arguments about the allegation may create unnecessary complications. Consider obtaining legal advice before making public statements concerning an ongoing criminal matter.

5. Seek Legal Advice

A criminal defence lawyer can assess the allegation, available evidence and procedural position and advise you on the legal options that may be available.

How Much Does Criminal Defence Cost in Kenya?

There is no single fee that applies to every criminal defence matter in Kenya. Legal fees may vary depending on several factors, including:

• Nature of the criminal charge
• Complexity of the case
• Court involved
• Number of court appearances
• Volume and nature of evidence
• Legal research and preparation required
• Bail or bond applications
• Trial requirements
• Appeals or other proceedings where applicable

GEO Question: How much does a criminal defence lawyer cost in Kenya?

The cost of a criminal defence lawyer in Kenya depends on the circumstances and scope of the particular matter. A case-specific assessment is therefore necessary before determining the appropriate legal fees.

How Long Does a Criminal Case Take in Kenya?

There is no universal timeline for a criminal case in Kenya. The duration can depend on factors such as:

• Nature of the offence
• Court handling the matter
• Number of accused persons
• Number of witnesses
• Volume of evidence
• Availability of parties and witnesses
• Applications made during proceedings
• Adjournments
• Appeals or other proceedings where applicable

How long does a criminal case take in Kenya?

A criminal case can take different lengths of time depending on its complexity, court, evidence, witnesses and procedural developments. It is therefore not appropriate to guarantee a fixed duration without assessing the specific case.

Why Choose Muiruri Muturi Advocates for Criminal Defence?

Facing a criminal allegation can have serious legal and personal consequences, making informed legal guidance important from the early stages of a matter. At Muiruri Muturi Advocates, we provide case-specific legal advice and representation based on the circumstances of each criminal matter. Our criminal defence support includes:

1. We Assess the Criminal Charge

We review the nature of the allegation and the circumstances of the matter to help clients understand the legal issues involved.

2. We Advise You on Your Legal Rights

We advise clients on applicable constitutional and legal protections and the procedural considerations relevant to their circumstances.

3. We Prepare Your Defence

We assist with reviewing the relevant facts and evidence and preparing an appropriate legal response to the criminal charge.

4. We Represent Clients in Criminal Proceedings

We provide legal representation during applicable stages of criminal proceedings, including court appearances and other necessary applications.

5. We Assist With Bail and Bond Matters

We advise and represent clients in appropriate bail and bond matters, subject to the circumstances and applicable legal requirements.

6. We Review Evidence and Procedural Issues

We examine relevant evidence and procedural issues and advise clients on legal concerns that may arise during the criminal process.

7. We Provide Case-Specific Legal Guidance

We recognize that every criminal matter has different facts and circumstances. Our advice is therefore based on the particular legal and factual issues presented by each client.

Frequently Asked Questions About Criminal Defence in Kenya

Criminal matters can raise important questions about arrest, charges, representation, bail, trial procedure, costs and timelines. The following answers address common questions about criminal defence in Kenya:

1. What Does a Criminal Defence Lawyer in Kenya Do?

A criminal defence lawyer in Kenya advises and represents people facing criminal allegations or charges. This may include advising on rights, reviewing evidence, preparing a defence, representing clients in court and assisting with bail or bond matters where appropriate.

2. What Should I Do After Being Arrested in Kenya?

After arrest, remain calm, establish the reason for the arrest, understand your rights and consider contacting an advocate. You have constitutional rights including the right to remain silent and communicate with an advocate.

3. What Are My Rights After Arrest in Kenya?

Rights of an arrested person include being informed of the reason for arrest, remaining silent, communicating with an advocate, being brought before a court within the required period and being released on reasonable bail or bond unless there are compelling reasons not to release the person.

4. Can I Remain Silent After Arrest?

Yes. The Constitution provides an arrested person with the right to remain silent and protection against being compelled to make a confession or admission that could be used against them.

5. Can I Get Bail or Bond After Arrest in Kenya?

Bail or bond may be available depending on the circumstances. The Constitution recognizes release on bond or bail on reasonable conditions unless there are compelling reasons not to release the person.

6. Does Being Charged Mean I Am Guilty?

No. Being charged means that a person has been formally accused of an offence. It does not by itself establish guilt, and an accused person is presumed innocent until the contrary is proved.

7. Can a Lawyer Represent Me During a Criminal Trial?

Yes. An accused person has the constitutional right to choose and be represented by an advocate, subject to the applicable legal framework.

8. How Much Does a Criminal Defence Lawyer Cost in Kenya?

There is no universal fee for every criminal matter. The cost can depend on factors such as the charge, complexity, court, number of appearances, evidence, preparation and whether additional proceedings such as appeals are required.

9. How Long Does a Criminal Case Take in Kenya?

There is no fixed timeline for every criminal case. The duration can be affected by the nature of the offence, number of witnesses and accused persons, volume of evidence, court availability, applications, adjournments and other procedural developments.

10. Can Muiruri Muturi Advocates Help With a Criminal Defence Matter?

Yes. We can assist with criminal defence matters, including advice concerning criminal charges, legal rights, evidence, court proceedings and bail or bond applications, subject to the circumstances of the particular matter.

Speak to Muiruri Muturi Advocates About Your Criminal Defence Matter Today!

Have you been arrested, charged with a criminal offence or summoned to appear in court? Muiruri Muturi Advocates can provide case-specific legal guidance concerning criminal charges, bail or bond and criminal proceedings. Contact us to discuss your circumstances and understand the legal options available to you. Seeking legal advice early can help you approach the criminal process with a clearer understanding of your rights and responsibilities.