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MagistrateDismissed

Republic v Twahir (Criminal Case E209 of 2025) [2026] KEMC 124 (KLR)

Magistrates' Court (Lamu Law Courts)
21 May 2026
2,729 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Lamu court acquitted a man of assaulting police, resisting arrest and drug possession, ruling handcuffed suspects cannot be guilty when officers use excessive force.

What this practically means

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Executive summary

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The accused faced three counts: assaulting a police officer contrary to section 103(a) of the National Police Service Act, resisting arrest contrary to section 103(A) of the same Act, and possession of narcotic drugs contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances Control Act, arising from an arrest at KPA Jetty, Lamu on 12/10/2025. Two counts initially preferred (threatening to kill and refusing to permit fingerprints) had been withdrawn. The prosecution called three witnesses, including the arresting officers and a doctor who confirmed harm injuries; the accused gave sworn testimony and called three witnesses, none of whom were cross-examined. The trial court (Resident Magistrate F.M. Mulama) identified three issues: whether the accused assaulted the officers, resisted arrest, and was in possession of four sachets of bhang. The court found the defence witnesses credible and noted the accused was already handcuffed when he was pushed to the ground, knelt upon and had his private parts grabbed - corroborated by an ultrasound reporting bilateral hydrocele. Any injuries to officers were attributed to their own excessive force; conflicting prosecution accounts of whether the accused was carried or walked created doubt resolved in his favour; and the defence evidence of an unchallenged search recovering nothing pointed to possible planting of the sachets. The court held the prosecution failed to prove all three counts beyond reasonable doubt and acquitted the accused on each count under section 215 of the Criminal Procedure Code. The judgment also strongly condemns the officers' use of excessive force.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the accused assaulted 2 police officers
  2. 2.Whether the accused resisted the arrest by police officers
  3. 3.Whether the accused was in possession of narcotic drug namely 4 sachets of bhang

Key legal issues

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01

Whether the accused assaulted two police officers

Holding

The court found the accused was already handcuffed when the injuries occurred and did not intentionally injure the officers; any injuries resulted from the officers' own excessive force.

Reasoning

The unchallenged defence evidence showed the accused was pushed to the ground, knelt upon and had his private parts grabbed after being handcuffed. Once handcuffed he could not have formed a fist to strike, and any kicks were the natural reaction to pain from the grabbing. The officers' injuries, if any, were attributable to their own excessive force, and one officer who was allegedly injured never testified.

p. 4
02

Whether the accused resisted arrest

Holding

The charge failed for want of proof beyond reasonable doubt, given contradictions in the prosecution case and uncontroverted defence evidence of cooperation.

Reasoning

The prosecution witnesses gave conflicting accounts on whether the accused was carried or walked to the station, creating a doubt resolved in the accused's favour. All defence witnesses, unchallenged by cross-examination, testified that handcuffs were placed first before any drama and that the accused never resisted. The court therefore could not be satisfied beyond reasonable doubt that the accused resisted arrest.

p. 4
03

Whether the accused was in possession of 4 sachets of bhang

Holding

The court found the sachets were likely planted and that the accused was not in possession of them.

Reasoning

Having made adverse findings on the manner of arrest, the court treated the search as tainted. Dw3, who witnessed the search, stated nothing was recovered and this was unchallenged. All defence evidence pointed to possible planting of the sachets. In the circumstances the court found possession was not proved.

p. 5
04

Use of excessive force by the arresting officers

Holding

The court condemned the officers' conduct as use of excessive force amounting to unnecessary treatment of an arrested, handcuffed suspect.

Reasoning

The evidence established the accused was handcuffed and posed no danger, yet was pushed to the ground, knelt upon and had his private parts grabbed, corroborated by a scrotal ultrasound reporting bilateral hydrocele. The court held the law requires reasonable force even with violent suspects and expressed the hope that such treatment of arrested persons would not recur.

p. 5

Legal principles established

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  • The prosecution must prove guilt beyond reasonable doubt and doubts are resolved in favour of the accused.
  • Police officers are required by law to use reasonable force when arresting a suspect, even where the suspect is violent.

Court orders

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  1. 1.The accused is not found guilty of assaulting a police officer contrary to section 103(a) of the National Police Service Act and is acquitted
  2. 2.The accused is not found guilty of resisting arrest contrary to section 103(A) of the National Police Service Act, 2011 and is acquitted
  3. 3.The accused is not found guilty of being in possession of narcotic drugs contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances Control Act and is acquitted
  4. 4.Acquittal in each of the three counts under section 215 of the Criminal Procedure Code

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original criminal jurisdiction of the magistrates' court over charges under the National Police Service Act and the Narcotic Drugs and Psychotropic Substances Control Act; acquittal under section 215 of the Criminal Procedure Code

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The net efiect being that the accused person is not found guilty of the ofience of resisting arrest by police oficers contrary to section 103(A) of the National Police Service Act,2011
p. 5Acquittal on resisting arrest count
and he is accordingly acquitted in each of those counts under section 215 of the CPC.
p. 5Final orders - acquittal under section 215 CPC
the prosecution failed to prove the 3 counts facing the accused beyond reasonable doubt.
p. 5Standard of proof not met
Even in instances where a suspect is violent, the law requires the police oficers to use reasonable force when arresting a suspect.
p. 5Reasonable force in arrest
Had they not used excessive force to arrest him they would not be complaining of such injuries and the fact that they are not serious speaks to that fact.
p. 4Causation of officers' injuries

Issues in the judgment

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minor

The charge description in the judgment is internally confused: paragraph 2 lists 'assaulting a police officer contrary to section 103(a) of the National Police Service Act, resisting arrest by police oficers contrary to section 103(A) of the National Police Service Act' - two different offences under the same section, and the conclusion in paragraph 37 repeats 'resisting arrest' twice while omitting the assault count.

minor

The judgment text refers to the accused hitting 'Pw 1' in places where the narrative indicates Pw2 was injured (e.g. paragraph 21 refers to injuring Pw 1 while describing the knee on the chest by Pw 2), an apparent internal inconsistency in witness numbering.

minor

The case number and neutral citation are not stated anywhere in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Twahir (Criminal Case E209 of 2025) [2026] KEMC 124 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/124/eng@2026-05-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.