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
#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
- 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
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.