Evaluating the adequacy of the law on searches without warrants in Kenya: a comparative study

Abstract

This study examines Kenya's legislative framework on warrantless searches concentrating on the vague "substantial prejudice" standard set forth in Section 60 of the National Police Service Act. Against the backdrop of recent police abuses during public protests, the paper evaluates how the lack of clear norms governing police discretion could result in widespread violations of the constitutional right to privacy under Article 31. Using a doctrinal and comparative legal methodology, the study examines judicial interpretations of warrantless searches in Kenya and compares them to the Canadian jurisdiction's structured application of the reasonableness and proportionality tests under Section 8 of the Canadian Charter of Rights and Freedoms. The results highlight a worrying trend of Kenyan courts interpreting warrantless searches inconsistently, frequently emphasizing evidential weight over evidence gathering method. This undercuts both the rule of law and procedural fairness, aggravating police discretion. It is brought out that the ambiguous "substantial prejudice" criteria permits law enforcement to exploit legal ambiguity, resulting in arbitrary intrusions into private life and a loss of public trust in the judicial system. To address these shortcomings, the dissertation suggests establishing objective guidelines for determining "substantial prejudice," enacting exclusionary rules to deter illegal searches, providing judicial training on constitutional interpretation, and implementing institutional reforms that improve police accountability. These policies seek to match Kenya's legal processes with democratic ideals and international human rights obligations, protecting individual liberty from government overreach.