Republic v Twahir (Criminal Case E209 of 2025) [2026] KEMC 124 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the accused assaulted 2 police officers
- 2.Whether the accused resisted the arrest by police officers
- 3.Whether the accused was in possession of narcotic drug namely 4 sachets of bhang
Key legal issues
#Whether the accused assaulted two police officers
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.
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.
Whether the accused resisted arrest
The charge failed for want of proof beyond reasonable doubt, given contradictions in the prosecution case and uncontroverted defence evidence of cooperation.
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.
Whether the accused was in possession of 4 sachets of bhang
The court found the sachets were likely planted and that the accused was not in possession of them.
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.
Use of excessive force by the arresting officers
The court condemned the officers' conduct as use of excessive force amounting to unnecessary treatment of an arrested, handcuffed suspect.
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.
Legal principles established
#- 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
#- 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.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.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.Acquittal in each of the three counts under section 215 of the Criminal Procedure Code
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
and he is accordingly acquitted in each of those counts under section 215 of the CPC.
the prosecution failed to prove the 3 counts facing the accused beyond reasonable doubt.
Even in instances where a suspect is violent, the law requires the police oficers to use reasonable force when arresting a suspect.
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.
Issues in the judgment
#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.
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.
The case number and neutral citation are not stated anywhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.