ODPP & another v Lemarkelle & another (Miscellaneous Criminal Application E024 of 2025) [2025] KEMC 221 (KLR)
The bottom line
#A Maralal court allowed police to detain two armed robbery suspects for 13 days, ruling that alleged masterminds and actual robbers can both be held.
What this practically means
#Executive summary
#Key legal issues
#Whether the police had power to arrest the respondents without warrant
Yes - robbery with violence, attempt to murder and grievous harm are cognizable offences under the First Schedule to the Criminal Procedure Code
The court found prima facie evidence that robbery with violence, attempted murder and grievous harm were committed when three armed men raided the minimart, stole cash and shot the cashier. These are cognizable offences in the First Schedule to the Criminal Procedure Code for which police may arrest without warrant. The arrest of the 1st respondent following intelligence and CCTV review, and of the 2nd respondent on being named, was therefore lawful.
Whether a compelling case for 14 days' pre-trial detention was made out
A compelling case was made, but the court granted 13 days to account for time already spent in police custody
The court accepted that firearms were unrecovered, two fugitives were being pursued, CCTV forensic analysis in Nairobi was ongoing, witness statements and identification parades were pending, and the injured complainant could be at risk. Judicial notice was taken of the distance between Samburu and the DCI Forensic Laboratory in Nairobi. The Oscar Sudi good-faith and least-restrictive-measure tests were met; one day was deducted for time already served in custody.
Whether the 2nd respondent, as alleged mastermind, bore culpability justifying detention
Yes - under sections 20 and 21 of the Penal Code a procurator/counsellor and joint offenders in pursuit of a common purpose are deemed principal offenders
Relying on section 20 of the Penal Code and Republic v Tabiro, the court held that a person who counsels or procures an offence, and persons acting in concert under a common intention, are deemed to have committed the offence. The fact that the 2nd respondent was named by the 1st respondent (accomplice evidence requiring corroboration) entitled the police to verify through comprehensive investigations before deciding on prosecutorial action.
Whether the 2nd respondent's presentation to court outside 24 hours defeated the application
No - breach of the 24-hour rule, if established, is a matter for a separate High Court application for constitutional redress
Following Betty Jemutai Kimeiywa v Republic, the court held that Article 49(1)(g) and (h) allows an arrested person to be informed of the reasons for continued detention to facilitate investigations; presentation within 24 hours is not an either/or validation of prosecution. Alleged breaches of constitutional rights, including poor cell conditions and the suspect's medical needs, are matters for separate redress before the High Court.
Legal principles established
#- A cognizable offence is one for which a police officer may arrest without warrant under the First Schedule to the Criminal Procedure Code
- A person who counsels or procures an offence, or acts in concert with others under a common intention, is deemed a principal offender under sections 20 and 21 of the Penal Code
- Accomplice evidence generally requires corroboration before it can be acted upon
- Presentation of an arrested person within 24 hours is not invalidated by delay; Article 49(1)(g) and (h) permits the court to inform the arrested person of reasons for continued detention to facilitate investigations
- Pre-trial detention may only be ordered where the application is made in good faith and detention is the least restrictive measure available
Court orders
#- 1.13 days pre-trial detention of the 1st respondent AYOK
- 2.13 days pre-trial detention of the 2nd respondent RUMEI from the date of the ruling
- 3.The respondents to be produced in court on the next day following the expiry of the detention period
- Jurisdiction invoked
- Article 49(1)(h) of the Constitution; Criminal Procedure Code pre-trial detention procedure
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ODPP & another v Lemarkelle & another (Miscellaneous Criminal Application E024 of 2025) [2025] KEMC 221 (KLR)", Case Analysis (2025). Notice of Motion dated 18th September 2025 (S/NO. 82xxx). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/221/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.