By Everlyn Kwamboka
The Constitution forbids remand for petty offences, yet many Kenyans still spend nights in cells awaiting decisions that should never put them there.
A recent decision by the High Court of Kenya has brought renewed scrutiny to unlawful detention on the orders of magistrates for undeserved cases.
The issue is quiet but persistent in the country’s criminal justice system where unlawful detention orders are issued by magistrates for minor offences that should never attract custodial remand.
In a ruling delivered in Kisumu on March 12, Justice Joe M. Omido quashed a lower court order that had directed a suspect to remain in police custody while a magistrate reserved a ruling on an application for detention.
The High Court found the order unconstitutional because the offence under investigation carried a maximum penalty of only three months’ imprisonment or a fine.
The judge said under Article 49(2) of the Constitution, suspects cannot be remanded in custody for offences punishable only by a fine or by imprisonment not exceeding six months. The judge ruled that the subordinate court’s order directly violated this constitutional safeguard.
“The order went against the constitutional provision. I need not say more,” the court observed while setting aside the detention order.
The case, popularly known as Maximillan Motai Ruling exposes to Kenyans a Constitutional Safeguard Often Ignored. It highlights a broader systemic issue: many Kenyans continue to spend days or even weeks in police cells because judicial officers approve custodial detention in circumstances where the Constitution expressly forbids it.
Article 49 of the Constitution was designed to curb precisely this kind of abuse. It guarantees the rights of arrested persons and explicitly bars remand custody for minor offences whose penalties fall below the six-month threshold.
The rationale is straightforward. For petty offences—often involving minor regulatory or economic violations—pre-trial detention can be more punitive than the sentence itself.
In the case before the High Court, the offence being investigated of damaging currency notes carried a maximum custodial penalty of three months.
Yet the lower court had allowed the suspect to remain in police custody while awaiting a ruling on whether police could hold him for 14 days to complete investigations.
Justice Omido ruled that such detention should never have been ordered in the first place.It is a situation where the
High Court steps in as corrective authority.
The ruling relied on the High Court’s supervisory powers over subordinate courts under Article 165(6) of the Constitution and Sections 362–367 of the Criminal Procedure Code.
These provisions allow the High Court to review criminal proceedings to ensure that lower courts act within the law. If an order is found to be illegal or improper, the High Court can reverse or set it aside.
In this instance, the judge described the custodial order as “irregular and improper” because it subjected the suspect to detention for an offence constitutionally exempt from remand custody.
The court consequently ordered the suspect’s immediate release and directed that the lower court file be closed, noting that the application for custodial remand should never have been entertained at all.
Legal experts say the case is not an isolated incident. Across the country, suspects are frequently held in police cells after magistrates grant custodial orders for minor offences or while reserving rulings on remand applications.
Such practices undermine constitutional protections and contribute to overcrowding in police cells and remand facilities.
More importantly, they impose a heavy human cost: loss of income, reputational damage, and psychological trauma for suspects who are legally entitled to remain free pending investigations.
The High Court’s intervention in the Kisumu case therefore serves as a reminder that constitutional safeguards against arbitrary detention are not discretionary. They are binding.
Yet as this ruling shows, the gap between the Constitution and everyday courtroom practice remains a serious challenge in Kenya’s justice system.
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