TOPIC THREE

SEARCHES

Search is an important tool and useful aid in the prevention, investigation and detection of crime
as well as in collection and gathering of evidence to be presented in a court of law in proof of
commission of an offence. It is an attempt to find something; it is the careful examination to find
hidden items.

Kenyan law recognizes two types of searches: Search with a warrant & Search without a warrant.

3.1 Searches with Warrant

A search warrant is a written permit, issued by a court allowing a search upon proof on oath that
a thing on, with or in respect of which an offence has been committed or which may be
necessary for the investigation of an offence needs to be seized and taken before a court to be
dealt with in accordance with the law. According to section 118 of the CPC, a search warrant
authorizes police officer or a person named on it to search a place, building, ship, aircraft,
vehicle, box or receptacle (a container) for purposes of conducting an investigation or obtaining
evidence. A warrant may be directed to one or more police officers of the area within which
court has jurisdiction and pursuant to section 118 A of the CPC, application for a search warrant
shall be exparte.

Pursuant to Section 60 of the NPSA, a police officer may lay any lawful complaint before a
magistrate and may apply for a search warrant and such warrant be issued against such a person.
According to Section 122 as read together with 102 of the CPC, the contents of a search warrant
include:

 The offence with which the person, place or thing searched is related
 The name or description of the person, place or thing being searched
 The person to execute the search warrant
 An order directed to the executor of the warrant to seize the products of the search and
produce them in court issuing the warrant or any other court with jurisdiction, to be dealt
with in accordance with the law.

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Notably, a warrant directed to a police officer may also be executed by another police officer
whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed
[section 106 & 102 CPC].

Under section 122(3) of the CPC, a search warrant once issued, remains in force until it is
executed or cancelled by the court which issued it and may be executed at any place in Kenya at
any time between sunrise and sunset and on any day including Sundays or at any time the court
permits [sec 119, 109 & 122 CPC].

An officer is enjoined to produce the search warrant validating his entry into the place being
searched while the owner or a resident of the place being searched must allow the executor free
ingress and egress and afford all reasonable facilities for the search. The executor may break
open any outer or inner window or door of a building where the entry or way out cannot be so
obtained.

According to the court in Pringle v Bremmer & Stirling [1867] 5 Macph.55, an officer upon
entry may seize goods in respect of the warrant and any other goods which he believes on
reasonable grounds to be material evidence on a charge of stealing or receiving against person in
possession or anyone associated with him. In Crazier v Cundley, 108 E.R 49, it was held that a
constable could properly seize other goods not mentioned in the warrant if they afforded useful
evidence to substantiate the charge for which the warrant was issued.

3.1.1 Constitutional Issues on Searches with Warrant

Under Article 31 of the Constitution, Privacy of an individual and his home is a fundamental
right including right not to have their person, home or property seized, their possessions seized,
and information relating to their family or private affairs unnecessarily required or revealed or
the privacy of their communication infringed. However, under Article 24 & 25 of the
constitution, this right is not absolute.

Lord Justice Denning in Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 observed that
conduct of searches consists a serious intrusion upon the privacy and property of a citizen and
postulated that ‘every man’s house is his castle’, meaning that an officer is never in principle
allowed to enter and search one’s house. The judge however gave some exceptions to this rule by
stating thus:

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 No man’s house is to be used as hiding place for thieves or receptacle for stolen goods. If there is
reasonable ground for believing that there are stolen goods in the house, information can be laid
before the magistrate on oath and the magistrate can then issue a warrant authorizing a constable
to enter the house and seize the goods.

Article 24 therefore prescribes instances where the rights & freedoms in the interest of public
safety and public order may be limited. The use of warrant is thus a judicial certification of
derogation to an individual’s rights to privacy thereby striking a balance between individual
rights and those of the public.

Consequently, the power to issue a search warrant is vested only in a court of law and before
issuing one, there must at least be a reasonable basis for the same. Osiemo J in Vitu Ltd v. The
Chief Magistrate Nairobi & 2 Others HC Misc. Application no.475 of 2004 held that it is
expected that when a police officer or any other investigator approaches the court for a warrant,
he must show reasonable suspicion of an offence being about to be committed. The police must
therefore state on oath the basis upon which they seek the warrant, which is that anything upon,
with or in respect of which an offence has been committed, or is reasonably suspected to be in
the possession of somebody or somewhere.

Use of search warrants customarily assists in excluding illegally or improperly obtained

3.1.2 Searches on a Person

A person may be searched upon reasonable suspicion of concealing about his person an article
for which search should be made. If that person is female, the search should be made by another
female with strict regard to decency [Sections 120(4) & 20 CPC). Full body searches by way of
pants down or insertion of fingers & other objects to retrieve drugs ought to be conducted only
when there’s probable or reasonable cause.

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3.1.3 Inspection of Bankers’ Books

The Evidence Act, allows, where proved on oath to a magistrate that in fact, or by reasonable
suspicion the inspection of any banker’s book(s) is necessary for purposes of investigation into
commission of an offence, by warrant authorize an officer or another person therein named to
investigate the account of any specified person in any banker’s book. Such warrant is sufficient
authority for the production of any banker’s book as may be required for the purposes of
scrutiny. Section 180 of the Evidence Act allows an officer to take copies of any necessary/
relevant entry or matter in such banker’s book.

In Erastus Kibiti Stephen v Euro Bank Ltd & Another [2003] ekLR Misc. Application No.9 of
2002, the HC held that a banker is not bound to disclose status of a customer’s account except on
reasonable and proper grounds such as where disclosure is under compulsion by law or there is a
duty to disclose or where the interest of the bank requires the disclosure or the disclosure is b by
express or implied consent of the customer.

3.1.4 Professional Privilege

A search even with a warrant may not be directed towards materials which may not be legally
seized e.g, communications between the suspect and his spouse, lawyers and doctors. It applies
to documents which are in the possession of the person himself and not a suspect or a third party.
Such persons have right to refuse to produce the documents as they are privileged. The right is
however lost if the person is suspected to have participated in a criminal act. Thus, a lawyer’s or
doctor’s file can be examined if he is party to criminal acts. Consent is the other exception to this
rule. See, Frank Truman Export Ltd & Others v Metropolitan Police Commissioner [1976 no.
2445].

3.1.5 Retention of Seized Items

Sec 121 CPC allows the items seized during the search to be detained until conclusion of the
case or the investigation, reasonable care being taken for its preservation. The item may further
be detained for the purposes of an appeal or the trial. If no appeal is lodged or no person is
charged, the court may direct that the thing be restored to the person from whom it was taken
unless the court deems fit or is authorized or required by law to dispose of it otherwise. The

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justification for this was explained by Palles C.B LJ in Dillion v.O’Brien & Davis [1887] 16 Cox
CC 245 by stating thus;

The interest of the state in person being brought to trial in due course necessarily extends to the
preservation of material evidence of his guilt or his innocence, as well as to his custody for the
trial. His custody is of no value if the law is powerless to prevent the abstraction and destruction of
the evidence, without which a trial would be no more than an empty form.

In Ghani v. Jones [1907] 1QB 693, LJ Denning enunciated a list of requirements / criteria to
justify the taking of an item by the police and retaining it thereof, under a search warrant;

a. Reasonable ground to believe that a serious offence has been committed (or is about to
be committed)
b. Reasonable ground to believe that the article taken is the fruit of crime, instrument by
which crime was committed or material evidence to prove commission of a crime.
c. Reasonable ground to believe that the person in possession of it is involved in the crime
or at any rate his refusal to hand it over is unreasonable.
The court further noted that the seized item must be kept for no longer than necessary for the
purpose of investigation and evidence.

Notably, evidence obtained by search warrant is more readily admitted by courts than that
obtained without a warrant. This is purely due to prior judicial permit. Moreover, the officer is
protected from any civil liability arising therefrom. Even where there is a search warrant, it is
important the search be conduct in the presence of the owner of the house or vessel or box or
receptacle being searched. In Pascal Nkala Tubula v. Republic [1998] eKLR HCCA no. 82 of
1992, the court quashed a conviction where the Appellant house had been searched, but it had
not been shown whether there was a warrant or not. There was no other person in the house
being searched apart from the police officers conducting the search. The way the search was
conducted rendered it of no evidential value regardless of what was alleged to have been
recovered. [Evans Kanai Karanja v Republic [2002] eKLR Criminal Application No. 24 of
2001]

3.1.6 Can a Search Warrant be Reused?

Goff LJ in Butler v. Board of Trade [1971] Ch 680, opined that parliament did not intend a
warrant to subject the owner to an unlimited number of searches throughout an unlimited period

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of time. Thus, a warrant only authorizes a single entry, search and seizure after which it is
excluded and spent and a second warrant must be obtained to authorize a second entry.

3.2 Searches without Warrant

Under section 26 of the CPC, a police officer or other persons authorized in writing by the IG,
may stop, search and detain any aircraft, vessel or vehicle in or upon which there is reason to
suspect that anything stolen or unlawfully obtained, may be found; or where there is reason to
suspect that it has been used or used in the commission, or to facilitate the commission of an
offence. In Atibu Juma v. Republic [1983] eKLR HCCA no. 898 of 1982, it was held that any
stop, search and detention should be conducted by an authorized person contrary to which the
accused may be acquitted.

A police officer may also search any person whom a warrant arrest has been issued or who may
reasonably be suspected of having in his possession or conveying in any manner anything stolen
or unlawfully obtained or being guilty of a cognizable offence. Moreover, where a person in
authority over certain goods or place to be searched gives consent to a search, a police officer
may search such place without a warrant. The officer is under no duty to tell the person being
searched that he may refuse to be searched. If the consent to search is procured by trickery, the
ensuing search is not thereby invalidated.

Additionally, where a police officer reasonably suspects that a person in respect of whom a
warrant of arrest is in force, or who is reasonably suspected of being guilty of cognizable
offence, is in any premises, he may demand that the person residing in or being in charge of such
premises allow him free ingress thereto and afford him all reasonable facilities for a search
therein. Where, notwithstanding notification of his authority and purpose, ingress cannot without
unreasonable delay be so obtained, the officer may without warrant, enter such premises and
search therein, and may, if necessary in order to effect such entry, break open any outer or inner
door or window or other part of such premises. A search without warrant is also permissible in
cases where delay would defeat the purpose of the warrant since evidence would have been
destroyed or relocated elsewhere. Equally, where there is any danger that the goods to be
searched would pose to the public, it is permissible and reasonable to conduct a search without a
warrant.

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An officer may also stop, search any detain any vehicle or vessel which he has reasonable cause
to suspect is being employed in the commission of, or to facilitate the commission of an offence
without a warrant and may also stop and search any person who may be reasonably suspected of
having in his possession or conveying in any manner anything stolen or unlawfully obtained.

Sec 25 CPC- A search incidental to an arrest may be conducted without a prior warrant whenever
a person is arrested with or without a warrant by an officer making arrest, or, the officer to whom
a person arrested by someone else is handed over. He may then place in safe custody all articles
other than necessary wearing apparel, found upon such person.

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