FACT CHECK: Is There a Law That Says Arrested Persons Cannot Be Released After 6 PM?

Kenyans have lived to believe that police are prohibited by law from releasing arrested persons after 6 p.m., forcing suspects to remain in custody until the following day. 

However, a review of the Constitution of Kenya shows that the claim is false, as no law prevents police from releasing a suspect after 6 p.m. 

What the Constitution Says About Police Releasing Arrested Persons After 6 P.M.

According to Article 49 of the Constitution of Kenya, an arrested person has the right to be released on bond on reasonable conditions pending a charge or trial, unless there are compelling reasons to deny such release.

The Constitution also states that an arrested person should not be detained without charge for more than 24 hours after arrest. 

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However, if the 24-hour period expires outside ordinary court hours or on a day when courts are not sitting, the suspect must be taken before a court by the end of the next court day.

The law also allows police to continue holding a suspect only under specific circumstances such as instances where they have been charged and a court orders that they be remanded, or where police obtain legal authority to continue detaining the suspect while investigations are ongoing. 

Where police detain a suspect beyond the constitutional timeline without lawful justification, the detention may amount to a violation of the person’s constitutional rights. 

Additionally, the Constitution states that an individual who is unlawfully detained may challenge the detention in court and seek appropriate legal remedies. 

Lawyer Explains Where 6 pm Misconception Comes From 

According to lawyer Mwaura Muroki, the belief that Kenyans cannot be released after 6 p.m. originated from police administrative practices rather than any provision of the Constitution.

He explained that courts historically closed in the afternoon, while remand facilities often stopped receiving new inmates after around 6 p.m. because of logistical and security considerations. 

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As a result, police frequently held suspects overnight before presenting them to court on the next working day.

Muroki noted that the practice has changed over time.

“I have always believed that position of 12 hrs, but now things are clearer; also, in 2024 we had suspects released even at midnight,” he said.

Elsewhere, lawyer Allan Mulama, the Managing Partner at Allan Mulama Advocates, said there is no law in Kenya that prohibits police from releasing an arrested person after 6 p.m., noting that the Constitution protects the right to liberty regardless of the time of day.

“The Constitution does not recognise a ‘6 p.m. rule’. It recognises the right to liberty,” Mulama said.

He added that police officers cannot lawfully refuse to release a suspect solely because it is after 6 p.m., saying, “Darkness is not a legal reason to keep someone in a police cell”.

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Kenyan holding the Constitution 2010. PHOTO/Courtesy.