Being arrested is frightening, whether it happens at a roadblock, at work or at home. The Constitution gives every arrested person firm rights, and knowing them can make a real difference to how the next 24 hours unfold. This guide explains what the law requires of the police, how bail and bond work, and practical steps to take if you or someone close to you is arrested.
Your rights on arrest: Article 49
Article 49(1) of the Constitution provides that an arrested person has the right to:
- be informed promptly, in a language they understand, of the reason for the arrest, of the right to remain silent, and of the consequences of not remaining silent;
- remain silent;
- communicate with an advocate and other people whose help is necessary;
- not be compelled to make a confession or admission that could be used against them;
- be held separately from people serving a sentence;
- be brought before a court as soon as reasonably possible, and not later than 24 hours after arrest. If the 24 hours end outside ordinary court hours, or on a day that is not a court day, the deadline is the end of the next court day;
- at the first court appearance, be charged, be told the reason for continued detention, or be released; and
- be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
Article 49(2) adds that a person must not be remanded in custody for an offence punishable only by a fine, or by imprisonment for not more than six months.
These rights sit alongside the right to a fair trial in Article 50. The Constitution also absolutely prohibits torture and cruel, inhuman or degrading treatment.
Police cash bail and bond
For many offences, the officer in charge of the station can release you before you go to court. Release may be on police cash bail, where you deposit a sum of money, or on a personal bond, which is a written undertaking to appear, sometimes with a surety. You are entitled to an official receipt for any cash paid. You are also entitled to reasons if bail is refused or conditions are attached.
Police bail is not a fine, and it is not a bribe. It is a security for your attendance, and it is refundable when the case is concluded or you are released without charge. Never pay money to an individual officer without an official receipt.
Bail and bond in court
If you are not released at the station, you must be presented in court within the 24-hour limit. There you, or your advocate, can apply for bail or bond. The Judiciary’s Bail and Bond Policy Guidelines guide courts on setting reasonable terms. Bail is the rule, and refusal must be justified by compelling reasons. Examples of compelling reasons include a real risk that the accused will abscond, interfere with witnesses or commit further offences.
Terms should be proportionate to the offence and your circumstances. If the terms are beyond your means, you can ask the court to review them.
When the police want more time
Sometimes the police ask the court to allow them to hold a suspect beyond 24 hours while they complete investigations. The court must be satisfied that there are good reasons and that continued detention is justified. You are entitled to be heard on such an application, and an advocate can oppose it or seek release on terms.
Practical steps if you are arrested
- Stay calm and do not resist, even if you believe the arrest is unlawful. Challenge it later through the proper channels.
- Ask why you are being arrested and which station you are being taken to.
- Ask to contact an advocate and a family member, and do so as soon as you are allowed.
- Do not sign any statement you have not read and understood, and consider waiting until you have spoken to an advocate.
- Note the details: the names or service numbers of the officers, the time, the place and the occurrence book (OB) number.
- Keep receipts for any cash bail paid and copies of any documents you sign.
If you are mistreated
Complaints of police misconduct, including assault, unlawful detention and demands for bribes, can be made to the Independent Policing Oversight Authority (IPOA) and to the station commander. Violations of your constitutional rights can also found a constitutional petition seeking declarations and compensation.
Frequently asked questions
Can the police arrest me without a warrant?
Yes, in many situations the law allows arrest without a warrant, for example where an officer reasonably suspects that you have committed an offence. Your Article 49 rights apply in every case.
What happens if I am not taken to court within 24 hours?
Detention beyond the constitutional limit without a court order is unlawful. This may support an application for release and a claim for compensation, although it does not automatically end the criminal case.
Can I be held for a traffic offence?
Many minor traffic offences are dealt with by fines or by release on cash bail or bond. Under Article 49(2), a person should not be remanded in custody for an offence punishable only by a fine or by imprisonment of up to six months.
How we can help
We act for people who have been arrested or charged, seeking release on reasonable terms and protecting their rights throughout the process. We also bring constitutional claims for unlawful arrest and detention. If you or someone close to you has been arrested, contact Odek Law Advocates or call us on +254 710 379836.
This article provides general information on Kenyan law as at October 2026 and is not legal advice. Please seek advice on your specific situation.