LEGAL AID: What happens when you're arrested for loitering?

Hello Eric,

I often see police arrest people at night and my cousin was once a victim. He called me to assist him and I bribed the police to release him for fear of attending court, following this incident, I want to ask, if someone is arrested at night;

1. On what offense are they likely to be charged?

2. What is the bond one can expect to pay?

3. Can someone spend time in jail?

4. I understand loitering could be one of the charges, but how does the court determine such an offense especially if one is arrested near their house.

I'm looking forward to your answers/arguments.

Kind Regards,

Peter

Peter,

After reading the content of your question, we are encouraged that public education on legal knowledge is a noble initiative.

You have mentioned some of the key operational tools upon which the criminal justice system is anchored, further, highlighted specific crime scenarios commonly applied by police while executing their work. We acknowledge and appreciate your command of legal issues, though basic, it does reflect what many Kenyans, ordinary or otherwise lack. You raise several legal issues in the criminal justice system.

In order to canvass and offer an organised response, contextualisation is necessary. First is the role of police in society in which they operate. Second, is due process upon arrest of any person prior to attend court.

Third, is information regarding tools that drive the criminal justice system. Fourth, is to review the crimes in your text, but in the larger picture of likely offenses if one is arrested at night. Fifth, is to draw understanding on the role of court to determine and punish culpability.

MAIN ROLE OF POLICE

Peter, all of us must get interest to understand that police’s main role is to maintain law and order, preserve peace, protect life and property, prevent and detect crime, besides apprehend offenders as they enforce laws and regulations charged to them. So, police should not be seen to be doing anything outside these functional areas.

This is tantamount to flouting the law that establishes the National Police Service, found in the National Police Service (Amendment) Act in pursuant to Article 243 and 244 of the Constitution.

Notwithstanding, the reality of some police officers abusing work ethics like soliciting for bribes and exploiting citizens is an open secret. 

Nonetheless, police must do their work. Hence on arrest there is a procedure to be followed as outlined at Article 49 of the constitution on rights of arrested persons.

The arrested person is to; be informed in a language they understand the reason for arrest, be allowed communication to an advocate or someone who can assist them, not to be compelled to any confessions or admissions and be taken  to a court of law in the shortest time possible not exceeding 24 hours on a charge that is defined in law.

For your information, the police have authority to release an arrested person on what is popularly referred to as police bond of between Kenya shillings 0 to 10,000 as such persons await scheduled time to appear in court and answer charges as drafted in the police station occurrence book (OB). Therefore, it was wrong for you to pursue bribery.

Awareness regarding some of the tools applied in the criminal justice system is important. As requested, bond is a commitment or undertaking made by an accused person in custody binding themselves to conditions set by a court or police station, failure to which they forfeit a certain amount of money known as bail.

Whereas the amount of bail payable is the prerogative of a magistrate or police station commander in relation to the offense one is accused of, similarly demeanour of the accused to invite trust in the decision of the judicial or police officer administering the same.

While, it is difficult to identify specific offenses one can be charged with, it is necessary to have an inkling of what is likely. To be clear, is for you to know there are crimes which stand repealed but police on night duty tend to employ them.

Some of this comprise loitering with an intent to commit crime, idle and disorderly person which may include a common prostitute who seemingly conducts themselves in a manner likely to cause breach of peace.

Others, which are recognised in law include preparation to commit felony at section 308 of the penal code, which describes a person found away from his usual place of residence with any article (item) for use in the course of any burglary, theft or cheating. Further, offenses such as drunk driving and common nuisance.

However, in these times of quarantine, under the Public Health Order Act, breaching the set curfew hours has since become a common crime at night.

Last, is for us to know that court’s main function is to dispense justice to those who seek its interventions.

Determining and convicting an accused person is not express, rather based on evidence proofing beyond reasonable doubt over alleged offense.

Thus, conviction not guided by mandatory sentences, has options of fine or community service orders. So, to be found guilty does not necessarily predispose accused person to jail term.

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Eric Mukoya currently works for the non-profit human rights organisation Legal Resources Foundation Trust as the Executive Director. He has a passion for improving the legal literacy of the wider society and access to justice through various public education platforms.

Do you have a legal problem you would like addressed by a lawyer? Please email your queries to [email protected]