PART II
PROCEDURE RELATING TO CRIMINAL INVESTIGATIONS

A. - Arrest, Escape, Recapture, Search Warrants and Seizure

(d) Search Warrants and Seizure

38.-(1) If a police officer in charge of a police station is satisfied that there is reasonable ground for suspecting that there is in any building, vessel, carriage, box, receptacle or place–

(a) anything with respect to which an offence has been committed;
(b) anything in respect of which there are reasonable grounds to believe that it will afford evidence as to the commission of an offence;
(c) anything in respect of which there are reasonable grounds to believe that it is intended to be used for the purpose of committing an offence,

and the officer is satisfied that any delay would result in the removal or destruction of that thing or would endanger life or property, he may search or issue a written authority to any police officer under him to search the building, vessel, carriage, box, receptacle or place as the case may be.

(2) When an authority referred to in subsection (1) is issued, the police officer concerned shall, as soon as practicable, report the issue of the authority, the grounds on which it was issued and the result of any search made under it to a magistrate.

(3) Where anything is seized in pursuance of the powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure of that thing, being the signature of the owner or occupier of the premises or his near relative or other person for the time being in possession or control of the premises, and the signature of witnesses to the search, if any.

(4) Whoever, being empowered by law to order, authorise or conduct the search or any person, place, building, vessel, carriage or receptacle, vexatiously and without having reasonable grounds for doing, orders, authorises or conducts such search is guilty of an offence and upon conviction is liable to a fine not exceeding three thousand shillings or imprisonment for a term not exceeding one year.

(5) No prosecution against any person for an offence under subsection (4) shall be instituted except with the written consent of the Director of Public Prosecutions.


39. For the purposes of this Part–

(a) anything with respect to which an offence has been or is purported on reasonable grounds to have been committed;
(b) anything as to which there are reasonable grounds for believing that it will afford evidence of the commission of any offence; and
(c) anything as to which there are reasonable grounds for believing that it is intended to be used for the purpose of committing any offence,

shall be deemed to be a thing connected with the offence.


40. A search warrant may be issued and executed on any day (including Sunday) and may be executed between the hours of sunrise and sunset but the court may, upon application by a police officer or other person to whom it is addressed, permit him to execute it at any hour.


41. A police officer may search the person or the clothing that is being worn by, or property in the immediate control of, a person and may seize any thing relating to an offence that is found in the course of the search, if the search and seizure is made by the police officer–

(a) in pursuance of a warrant issued under this Part;
(b) in accordance with section 24 upon taking the person into lawful custody in respect of an offence;
(c) upon stopping the person in accordance with subsection (2) of section 42;
(d) in pursuance of an order made by a court.


42.-(1) A police officer may–

(a) search a person suspected by him to be carrying anything concerned with an offence; or
(b) enter upon any land, or into any premises, vessel or vehicle, on or in which he believes on reasonable grounds that anything connected with an offence is situated,

and may seize any such thing that he finds in the course of that search, or upon the land or in the premises, vessel or vehicle as the case may be–

(i) if the police officer believes on reasonable grounds that it is necessary to do so in order to prevent the loss or destruction of anything connected with an offence; and
(ii) the search or entry is made under circumstances of such seriousness and urgency as to require and justify immediate search or entry without the authority of an order of a court or of a warrant issued under this Part.

(2) A police officer who believes on reasonable grounds that that person is carrying an offensive weapon or anything connected with an offence may stop that person and seize any such weapon or thing that is found on the person.

(3) A police officer who believes on reasonable grounds that an offensive weapon, or anything connected with an offence is being carried in a vessel or vehicle, may stop and seize any such weapon or thing found in the vessel or vehicle.


43.-(1) Whenever any building or other place liable to search is closed, any person residing in or being in charge of that building or place shall, on demand of the police officer or other person executing a search warrant, and on production of the warrant, allow him free ingress into, afford all reasonable facilities for a search inside and allow him free egress from it.

(2) If ingress into or egress from the building or other place cannot be so obtained, the police officer or other person executing the search warrant may proceed in the manner prescribed by section 19 or section 20.

(3) Where any person in or about a building or place is reasonably suspected of concealing about his person any article for which search should be or is being made, he may be searched and if that person is a woman, the provisions of section 26 shall be complied with.


44.-(1) When an article is seized and is brought before a court it may, subject to section 353, be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.

(2) If an appeal is made, or if any person is committed for trial, the court may order the article to be further detained for the purpose of the appeal or the trial.

(3) If no appeal is made, or if no person is committed for trial, the court shall direct the article to be restored to the person from whom it was taken, unless the court sees fit or is authorised or required by law to dispose of it in any other manner.


45.-(1) The provisions of subsections (1) and (3) of section 112, sections 114, 116, 119, 120 and 121 shall, so far as may be, apply to all search warrants issued under section 38.

(2) Every search warrant shall be returned to the court with an endorsement in it showing the time and manner of its execution and what has been done under it.