Police for long have used the pretext of incomplete investigations to detain suspects for unnecessarily lengthy periods.
To circumvent the constitutional requirement of producing suspects in court within 24 hours, police prefer to take the suspect to court without preferring any charges.
The prosecution then asks for more time to detain the suspect as investigations finalise.
Instead of the charge sheet, police table an affidavit explaining the reasons why the detention should be extended.
But the continued progressive interpretation of the Constitution by the Judiciary on illegal detention has caught security and investigative agencies flat-footed.
The courts have ruled that, for the detention to pass the legal test, there must be compelling reasons.
Among the grounds commonly cited by the police include: investigations are ongoing, witnesses are yet to record statements, the suspect is a flight risk, expert reports are unavailable, scenes of crime have been compromised, security of the suspect or witnesses is in jeopardy.
Rarely does a suspect get informed of the reasons for his/her continued detention or the charge they are facing.
Majority, mostly those appearing in person, learn of the charge in court when entering plea.
To justify the detention, investigators also cite other aspects of the investigations such as obtaining call data on the suspect’s mobile phone and securing a forensic report from the cybercrime unit.
With judges now setting the bar high, police will have a harder task proving their case.
Article 49 of the Constitution provides that a suspect should be arraigned within 24 hours after arrest.
Should the period end outside the ordinary court hours or on a day outside the ordinary court days, the suspect has to be produced before the end of the next court day.
A ruling rendered by Justice Luka Kimaru three years ago stating that police have no authority to arrest and detain any person without sufficient grounds has now become a reference.
“If this trend continues, it would erode all the gains made in the advancement of human rights and fundamental freedoms as provided for in the Bill of Rights,” Justice Kimaru argued.
Lawyer Felix Kiprono says that, where police fail to provide sufficient reasons to be granted custodial orders, the courts should release the suspect until such a time when police will be ready for trial.
He adds that, where the prosecution has enough evidence, it should be presented in court in form of a holding charge setting out the particular offence.
“The Director of Public Prosecutions (DPP) must comply with the law. Police ought to investigate first and piece up the evidence before effecting an arrest,” the lawyer says.
He says some aspects of investigations like taking witness statements, obtaining call data and securing a forensic report can be accomplished even when the suspect is free.
Magistrates are also raising questions on the motive of police when suspects are produced in court late.
Recently, Milimani Senior Principal Magistrate Kennedy Cheruiyot questioned why the police had delayed charging two men accused of offering fake tender documents.
The fake tenders were for supply of 2,800 laptops valued at Sh180 million to the Office of the Deputy President.
The two, Mr Charles Kamolo Musinga and Mr Solomon Mwema, were arrested in Nairobi on March 12 and locked up at Parliament Police Station, but police produced them in court the following day in the afternoon.
The magistrate described such conduct as mischief, as it is aimed at ensuring the suspects remain in custody. This is because the processing of bail or bond takes time.
High Court Judge George Odunga said: "To effect an arrest of a citizen after hours on a Friday in order to avoid producing him in court till after he has spent a number of days in custody without any justification amounts to abuse of power."