KENYA SCHOOL OF LAW

CRIMINAL LITIGATION: ATP101

LECTURER:KIMWELE MUNEENI

A PAPER SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIRMENTS FOR

THE AWARD OF THE POSTGRADUTE DIPLOMA IN LAW, KENYA SCHOOL OF
LAW BY FIRM 18, CLASS A

EXTRADITION PROCEEDINGS
BY
FIRM 18 CLASS A

Douglas Okari

20161988

Assunta Ndami

20160600

Maina Miriam

20160611

Dennis Kariuki

20160614

Sharon Karitu

20160480

Angela Merichi

20160918

....

Rachel Kiema

20160971

Christine Njoki

20160092

Elizabeth Odondi

20160546

Stanley Mwaura

20160331

Albert Macharia

20161172

Njiru Njagi

20160074

Joshua Ombengi

20160432

Phyllis Njoka

20161254

Job Kobado

20160068

LIST OF ABBRIVIATIONS
AG-Attorney General
DPP-Director of public Prosecutions
ICC-International Criminal Court
UDHR-United Declarations on Human rights
LIST OF STATUES
Criminal Procedure code
Director of Public Prosecution Act, 2013
Fugitive Offenders Pursuit Act (Cap 87) United Nations Secretariat, manual on mutual legal
assistance and extradition (Vienna, 2012
International Covenant on Civil and Political Rights.
Rome statutes
The Constitution of Kenya 2010
The Extradition (Commonwealth Countries) Act (Cap 77)
The Extradition (Contiguous and Foreign Countries) Act (Cap 76)
United Kingdom extradition Act 2003

LIST OF CASES

Charles Kamunyi v Republic (2001) eKLR

Kinga v Republic
R v .Bow Street Magistrates court [2007]1 WLR 1157,DC ,[76]
R v Horseferry Road Magistrates Court, EX P. Bennett [1994]1. A.C. 42 HL.
Republicv Wilfred OnyangoNganyi and another
3

Schtraks v Israel
Terlidenvs Ames 184 U.S. 270
The

International

Commission

of

Jurists

-v-

Attorney

General

othersSamuelKimuchuGichuru and another -v- The Attorney General and 2 others

Torroha Mohamed Torroha v Republic

and

Contents
CHAPTER ONE......................................................................................................... 1
1. Introduction........................................................................................................ 1
1.1 Extradition Proceedings........................................................................................ 1
1.1.1 Nature of Extradition Proceedings.........................................................................2
1.1.2 Principles of Extradition Proceedings.....................................................................2
1.1.3 History of Extradition Proceedings........................................................................3
CHAPTER TWO........................................................................................................ 5
2. Legal Framework of Extradition Proceedings...............................................................5
2.1 Commission of a Crime........................................................................................ 5
2.1.1 The Request.................................................................................................... 7
2.1.2 Mode of Request under Chapter 76 Laws of Kenya....................................................7
2.1.3 Mode of Request under Chapter 77 Laws of Kenya....................................................8
2.1.4 Issue of Warrants as Per Cap 77 Laws of Kenya........................................................9
2.1.5 Warrants as Per Cap 77 Laws of Kenya...................................................................9
2.1.6 Committal or Discharge of the Criminal................................................................10
2.1.7 Extradition Hearing......................................................................................... 11
2. 1.8 Hearing of the Case........................................................................................ 11
2.1.8.1 in Court.................................................................................................. 11
2.8.1.2 Adducing Evidence.................................................................................... 12
2.1.8.3 Evidential Threshold in Extradition Proceeding.................................................12
2.8.1.5 Final Orders of the Court............................................................................. 14
2.1.9 Warrants of Surrender...................................................................................... 15
2.2 The Extradition (Commonwealth Countries) Act, Cap 77.............................................15
2.2.1 Extradition Procedure in a nut shell.....................................................................16
CHAPTER THREE................................................................................................ 19
3. Challenges Facing the Extradition Proceedings...........................................................19
3.1 Political Interference.......................................................................................... 19
3.1.1 Lengthy Court Procedures................................................................................. 20
3.1.2 Right Party to Prosecute Persons to be extradited.....................................................21
3.1.3 Weighing The Rights Of The Accused Person Vis A Vis That of The Requesting State.......22
3.1.4 Dual Criminality............................................................................................. 23
3.1.5 Doctrine of Specialty....................................................................................... 24
3.1.6 Doctrine of Non-Inquiry................................................................................... 24
CHAPTER FOUR..................................................................................................... 25
5

4. Comparative Study on the United Kingdom Extradition Proceedings................................25

4.1 Extradition Process in the United Kingdom..............................................................26
4.1.1 The European Arrest Warrant..........................................................................26
4.1.1.2 Certification............................................................................................. 26
4.1.1.3 Initial hearing........................................................................................... 27
4.1.1.4 Extradition hearing.................................................................................... 27
4.1.1.5 Appeals.................................................................................................. 28
CHAPTER FIVE...................................................................................................... 29
5 Conclusion and Recommendations...........................................................................29
5.1 Conclusion...................................................................................................... 29
5.1.1 Overcoming Legal Challenges in Extradition..........................................................29
5.1.2 Doctrine of Specialty....................................................................................... 31
5.1.3 Case of Mohamed Abdulmalik........................................................................... 31
5.2 Recommendations............................................................................................. 32
BIBILIOGRAPHY.................................................................................................... 34

CHAPTER ONE
1. Introduction
1.1 Extradition Proceedings
Extradition is the official legal process whereby one country transfers a suspect or convicted
criminal outside its territory or nation which demands him and which is competent to try and
punish him; this is normally regulated by treaties between countries. 1 Proceeding in a general
sense, is the form and manner of conducting juridical business before a court or judicial
officer; regular and orderly progress in form of law; including all possible steps in an action
from its commencement to the execution of judgment2
In this arrangement states have to depend on the cooperation of other states in order to obtain
the surrender of suspected or convicted criminal who has fled to another nation, this rests on
procedure of request and consent and its regulated by certain general principles,3the
consensus in international law is that state does not have any obligation to surrender an
alleged criminal to a foreign state, since states have legal authority over people within their
borders, such absence of international obligation and the desire for the right to demand such
criminals from other countries have caused a wed of extradition treaties or agreements to
evolve4
In the Huntington v Attrill5 court stated crimes and offences against the laws of any state can
only be defined prosecuted and pardoned by the sovereign authority of that state; and the
authorities ,legislative executive or judicial of other states take no action with regard to them,
except by way of extradition to surrender offenders to the state whose laws they have
violated, and whose peace they have broken This emphasized the importance of process

1 Terliden vs Ames 184 U.S. 270. see also;https;//en.m.findlaw.co.uk/criminal

2 Black Henry, Blacks Law Dictionary, p1368.
3 Mayeku Busolo, An Appraisal of Extradition law and practice in Kenya
4 Ian Brownie, International Law(7th Ed)
5 [1892] 146 U.S.657,669
1

extradition and its importance to bring justice to those who offend or commit crimes in a
given nation and take refuge in another state
1.1.1 Nature of Extradition Proceedings
Extradition proceedings should operate as a facilitator of trial where the suspect is physically
outside the boundaries of the State asserting criminal jurisdiction over him and his trial.
Without this process, persons suspected of involvement in serious crimes might never face
trial due to the unwillingness or lack of jurisdiction of their country of residence to prosecute,
and the inability of the country wishing to prosecute them to obtain their physical presence in
the relevant jurisdiction.
The extradition proceedings rely upon the existence of a network of treaties and agreements
between partisan States. Thus, for there to be an extradition procedure, the has to be;
1.1.2 Principles of Extradition Proceedings
An identified person whose surrender is sought6
Extradition Offence- The offence of which the accused is suspected must be within
the terms of an existing treaty or reciprocal agreement between the two States in

question7
Double Criminality8- The act or activity of which the suspect is accused should be a
criminal offence in both jurisdictions9. This is regardless of whether different labels

are used10.
Rule of Specialty- This means that the offence or offences for which the requesting
State seeks the return of the suspect to answer pursuant to the extradition request are

6 Claire de Than and Edwin Shorts, International Criminal Law and Human Rights( 1st Ed, Sweet and
Maxwell 2003) 46
7Charles A Caruso, Overcoming Legal Challenges in Extradition available at
http://www.americanbar.org/.../asia_raca_ accessed at 30 March 2016.
8Extradition (Commonwealth Countries) Act (Cap 77) s 4(1)
9SibylleKapterer, The interface between extradition and asylum available at
http://www.unhcr.org/protection accessed at 30 March 2016.
10Ibid.
2

the only offences for which the suspect will have to answer in the requesting
State11.This was upheld in the Bennett case12where Lord Griffiths stated:
...extradition procedures are designed not only to ensure that criminals are returned from
one country to another but also to protect the rights of those who are accused of crimes by
the requesting State hence sufficient evidence has to be produced to show a prima facie
case and the rule of specialty protects the accused from being tried for any crime other
than that for which he was extradited.
It is noteworthy that extradition proceedings are criminal proceedings albeit of a special
kind13. Therefore they are subject to the procedure of trying a suspect from the time of
arrest, through interrogation and charge, to the time of taking the suspect to court for the
plea, trial, judgment, sentence, appeal and revision of a case as appropriate.
The Constitution 201014 establishes the Office of Director of Public Prosecutions (DPP).
The DPP has the power to direct the Inspector General of Police to investigate any
information or allegation of criminal conduct including those that may lead to a request
for extradition through diplomatic channels. Whenever an extradition request is received
the DPP is the one to commence proceedings for extradition orders. In commencing the
extradition proceedings, the DPP exercises his constitutional powers under Article 157.
In Kenya statutes that guide extradition proceedings include but not limited to;

The Extradition (Contiguous and Foreign Countries) Act (Cap 76)

The Extradition (Commonwealth Countries) Act (Cap 77)
Fugitive Offenders Pursuit Act (Cap 87)

11United Nations Secretariat, manual on mutual legal assistance and extradition (Vienna, 2012).
12R v Horseferry Road Magistrates Court, EX P. Bennett [1994]1. A.C. 42 HL.
13R v .Bow Street Magistrates court [2007]1 WLR 1157,DC ,[76]( Lord Phillips CJ).
14Article 157
3

1.1.3 History of Extradition Proceedings

Its an ancient mechanism dating back to at least the 13th century BC when an Egyptian
pharaoh known as, Ramesses 2 negotiated an extradition treaty with a Hittie king Hattusili
315. Historically, extradition was mainly sought or granted for political purposes in respect of
persons who having incurred the displeasure of their own government left the country and
sought asylum in other countries the grant or refusal depended on the whims of the
sovereigns who passed arbitrary order16
However with the development of democratic institutions and responsible forms of
government, extradition gradually acquired a legal basis with countries agreeing to transfer
and handover offenders from one sovereign to another on basis of mutual consent, with this
growing concept of international cooperation in the different spheres of state activity
extradition came to be used as measure of preventive of crime and deal with criminals whom
international frontiers offered no difficult barriers to be crossed.
In Kenya, the national legislations on the on the subject of extradition is the Extradition
(Contiguous And Foreign Courtiers) Act17 which applies to any other country other than
designated commonwealth country which Kenya has entered an extradition agreement with
under Extradition (Commonwealth) Courtiers Act18 which applies to common wealth
countries. Both acts of parliament anchor the international criminal law obligation to
extradite, including full cooperation on reciprocal basis to a foreign state to deal with
criminals and safeguarding individual liberty and the right of asylum seekers.

15 Dan E. Stigall, Ungoverned spaces, transitional crime, and prohibition on extraterritorial

enforcement jurisdiction in international law
16 <http//ssin.com/abstract=1530185>
17 Cap 76 Laws of Kenya
18 Cap 77 Laws of Kenya
4

CHAPTER TWO
2. Legal Framework of Extradition Proceedings
2.1 Commission of a Crime
According to the Preamble of The Extradition (Commonwealth Countries) Act 19, the purpose
of the Act is to provide for the surrender of persons accused or convicted of offences from
Kenya to Commonwealth countries where the offence has been committed. The Act also
regulates the treatment of accused or convicted persons who are returned to Kenya from
Commonwealth countries. Based on the preamble, the commission of an extradition offence
gives rise to extradition proceedings.
The process of extradition begins with the commission of a crime. The Extradition
(Contiguous and Foreign Countries) Act20 provides a list of extradition crimes in its schedule
which include murder, manslaughter, rape, arson, piracy, robbery, theft among others. The
request for extradition under the Act must be based on an agreement between Kenya and a
country that is not a Commonwealth country regarding the surrender to that country of any
fugitive criminal. The agreement is given effect through an order by the Minister published in
the Gazette declaring the application of Part II of the Act. 21The order by the minister must be
presented to the national assembly. Such agreements have been entered to with countries such
as Germany, UnitedStates of America Italy, Greece, Liberia, and Spain Among others. Where
it can be shown that a crime under the Act has been committed and that the fugitive criminal
is connected to the crime, a request for extradition can be granted. However, under section
5(2),22 an extradition will not be granted where the offence in question is one of a political
character. In such a case, the fugitive criminal who is accused or convicted of the offence
should be discharged.

19 Cap 76 Laws of Kenya

20 Cap 77 Laws of Kenya
21 Section 3(1) of the Extradition (Contiguous and Foreign Countries) Act
22 Extradition (Contiguous and Foreign Countries) Act
5

The Act has not defined what amounts to an offence of a political character. However, in
Schtraks v Israel23Lord Viscount observed that an offence of a political character is when the
fugitive is at odds with the state that has applied for his extradition on an issue related to the
political or government control. He further stated that such an offence is where the state
pursues the fugitive for other reasons other than the enforcement of criminal law. This was
applied in Charles Kamunyi v Republic (2001) eKLR24where the accused opposed extradition
proceedings on the ground that the offences for which he was sought in Uganda were of
political nature. However, the learned trial magistrate rejected the defence on the ground that
she was not persuaded that there was any political nature in the charges against the appellant.
The Extradition (Commonwealth Countries) Act provides that for an offence to be considered
as an extradition offence it must satisfy two conditions namely;25
1. That it is an offence under the law of the requesting country and falls within the
descriptions in the Schedule of the Act. Such offence must be punishable for a term of
twelve months or more.
2. The act or omission constituting the offence would constitute an offence in Kenya.
The Schedule of the Act provides a list of extradition offences such as murder of any
degree, manslaughter, rape, assault occasioning actual bodily harm, abortion, bigamy,
kidnapping and related crimes, perjury, arson, forgery, robbery, robbery, money laundering
among others. Under the Act,26 an extradition request will be denied where;
1. The offence is one of a political character.
2. The request is made to punish the criminal on account of his race, religion,
nationality or political opinions.
3. The surrender of the criminal will cause prejudice at trial.
4. The accused is likely to be punished, detained or have his personal liberty restricted
on the basis of race, religion, political opinions or nationality.

23 [1964] AC 556
24 http://www.kenyalaw.org/caselaw/cases/view/5872/ accessed on 6th April
2016
25 Section 4(1) of the Extradition (Commonwealth Countries) Act
26ibid Section 6
6

5. It appears to the Court or the Attorney General that such person would be discharged,
under any law touching on the previous acquittal or conviction, if charged with that
offence in Kenya.27
6. The fugitive is likely to be charged in the requesting country for an offence other than
the one for which the request for extradition was sought.28

2.1.1The Request
Extradition in the Oxford Dictionary of law is defined as the surrender by one state to
another of a person accused or convicted of committing an offence in the territorial
jurisdiction of the latter, which being competent to try and punish him demands his
surrender29.
From the above we can see that for extradition proceedings to begin there have to be two
countries collaborating.
The aggrieved state will therefore send a formal written request (requisition) to Kenya
through diplomatic channels thus beginning the processing of extradition.
The mode of request although similar is governed by two different legislations Cap 76 for
foreign countries not designated as commonwealth and Cap 77 for common wealth countries.

2.1.2 Mode of Request under Chapter 76 Laws of Kenya

Cap 76 governs extradition between foreign countries, the procedure for request is in section
5{1) which refers to the request as a requisition (formal written request).
Section 5(1)30 provides that a requisition for the surrender of a fugitive criminal of any
country who is in or suspected of being in Kenya shall be made to the minister by a
27 ibid Section 6(2)
28 See Section 6(3)
29 Oxford Dictionary of law 8th edition
30 Extradition (contiguous and Foreign Countries) Act Cap 76
7

diplomatic representative or consular officer of the country and, upon receipt of such
requisition, the minister now Cabinet Secretary may, by order under his hand signify to a
magistrate that a requisition has been made and require the magistrate to issues his warrant
for the arrest and detention of the fugitive criminal.
Subsidiary legislation on the Contiguous Extradition Foreign Act Cap 76 31 further explains
the mode by which a request may be made and what documents follow it.

Article 932 States that the requisitions for extradition shall be made, respectively, by means
of the Diplomatic Agents of the High Contracting Parties.
The demand for the extradition of an accused person must be accompanied by a warrant of
arrest issued by the competent authority of the State applying for the extradition, and by
such proof as, according to the law of the place where the fugitive is found, would justify
his arrest if the crime has been committed there.
If the requisition relates to a person convicted, it must be accompanied by the sentence of
condemnation of the competent Court of the State applying for the extradition.
The demand for extradition must not be founded upon a sentence in contumacia.
This may however change and is dependent on the bilateral agreements of different states and
Kenya.

2.1.3 Mode of Request under Chapter 77 Laws of Kenya

For countries that fall under the designation of commonwealth countries the mode for
requisition is similar but differs slightly.
The main difference is that under cap 76 a requisition is made through the minister who then
instructs a magistrate to proceed while in cap 77 a request is received by the Attorney general

31 ibid
32 ibid
8

who then directs the Director of Public Prosecution 33 to proceed with the matter. It should be
noted that the role of the director of public prosecution is new to the act by virtue of section
157 of the constitution.
Section 7(1) 34provides that there shall be furnished with any request
In the case of a fugitive accused of an extradition offence, an overseas warrant issued in the
requesting country;
In the case of a fugitive unlawfully at large after conviction of an extradition offence, a
certificate of the conviction and sentence in the requesting country, and a statement of the
amount (if any) of that sentence which has been served,
together (in each case) with particulars of the fugitive concerned and of the facts upon which
and the law under which he is accused or was convicted, and evidence sufficient to justify the
issue of a warrant of arrest.

2.1.4 Issue of Warrants as Per Cap 77 Laws of Kenya

The Magistrate upon receipt of the order from the minister may issue a warrant of arrest of
the fugitive criminal if on such evidence which in his position would justify the issue of a
Warrant if the crime had been committed or the criminal convicted in Kenya 35 Cap 77
provides that a warrant may be issued with authority to proceed or without authority to
proceed upon information that the fugitive may be in Kenya.36
In instances where there is no authority to proceed, a magistrate issuing a warrant under this
section without an order from the Minister shall forthwith send a report of the fact of the
issue, together with the evidence and information or complaint or certified copies thereof, to

33 The constitution of Kenya 2010 Article 157

34 The Extradition (commonwealth countries) Act cap 77
35 The Extradition Contiguous and Foreign Countries Act Section 3(1).
36 ibid section 8(1
9

the Minister, who may order the warrant to be cancelled and the person who has been arrested
and detained on the warrant to be discharged.37
The warrant of a magistrate issued in pursuance of this Part of this Act may be executed in
any part of Kenya in the same manner as if it had been originally issued or subsequently
endorsed by a magistrate having jurisdiction in the place where it is executed.38

2.1.5 Warrants as Per Cap 77 Laws of Kenya

Warrants under this act are to be issued by a magistrate on instructions to proceed by the
Director of public Prosecution39 or without an authority to proceed, upon information that the
fugitive is or is believed to be in or on his way to Kenya.
Under Sec 8 (3) Where the warrant of arrest issued in respect of a fugitive is a provisional
warrant the magistrate who issues it shall forthwith give notice to the Attorney-General, and
transmit to him the information and evidence, or certified copies of the information and
evidence, upon which the warrant was issued; and the Attorney-General may in any case, and
shall if he decides not to issue an authority to proceed, cancel the warrant, and discharge the
fugitive from custody if he has been arrested under the warrant.40
Where a warrant of arrest is issued in respect of a fugitive accused of an offence of stealing or
receiving stolen property or any other offence in respect of property, a magistrate shall have
the like power to issue a warrant to search for the property as if the offence had been
committed in Kenya41
A warrant of arrest may be executed in any place in Kenya by any person to whom it is
directed or by any police officer42

37 Ibid Section 6(2).

38 Ibid Section 6 (5).
39 ibid act 8(1)
40 The Extradition Contiguous and Foreign Countries Act Section 3(1).
41The Extradition Contiguous and Foreign Countries Act Section at sec8(4)
10

2.1.6 Committal or Discharge of the Criminal

Once a fugitive is arrested, he should be brought as soon as practicable before the court. After
receiving the authority to proceed, the court hears evidence tendered in support of the request
or evidence on behalf of the fugitive for the purpose of determining whether or not to commit
the fugitive to await his surrender. Before committing the fugitive to custody, the court must
be satisfied;43
1. That the offence to which the authority to proceed relates is an extradition offence.
2. In the case of a fugitive accused of the offence, that the evidence would be sufficient
to warrant his trial if the offence had been committed in Kenya.
3. Where the fugitive is alleged to be unlawfully at large after being convicted of the
offence, that he has been so convicted and appears to be at large.
Where the court is not satisfied of the above conditions, it shall discharge the fugitive from
custody.
Under the Extradition (Contiguous and Foreign Countries) Act44, several conditions must be
fulfilled before committing a fugitive who has been accused of an extradition crime. First, the
court must be satisfied that the foreign arrest warrant authorizing the arrest of the criminal
has been duly authenticated. Secondly, the court must also be satisfied that the evidence
produced would justify the committal for trial of the fugitive under the laws of Kenya if the
crime had been convicted in Kenya. If the court is not satisfied of these conditions, the
fugitive should be discharged.45 In the case of a fugitive criminal who is alleged to have been
convicted of an extradition crime, the magistrate must be convinced that the evidence
produced, would, according to the law of Kenya, prove that the fugitive was convicted of the
crime. Where the magistrate is convinced, he/she shall commit the fugitive to prison46.
42 Ibid sec 8(5)
43 Section 9(5)(a) and (b) of the Extradition (Commonwealth Countries) Act
44 ibid
45 Section 8(1) of the Extradition (Contiguous and Foreign Countries) Act
46Extradition (Contiguous and Foreign Countries) Act at section 8(2)
11

2.1.7 Extradition Hearing

Extradition is the surrender by one state to another of an individual accused or convicted of
an offense outside its own territory and within the territorial jurisdiction of the other, which,
being competent to try and punish him, demands the surrender 47. A hearing is a proceeding of
relative formality, generally public, with definite issues of fact or of law to be tried, in which
parties proceeded against have right to be heard, and is much the same as a trial and may
terminate in final order48. Proceeding in a general sense, is the form and manner of
conducting juridical business before a court or judicial officer; regular and orderly progress in
form of law; including all possible steps in an action from its commencement to the execution
of judgment49. Prior to the promulgation of The Constitution Of Kenya 2010, all prosecutorial
functions and all those related to the conduct of a request for extradition were carried out by
the office of the Attorney-General; all these roles have been assumed by the office of the
Director of Public Prosecution (DPP) who currently receives and ensures that all the
procedures and requirements related to an extradition request are followed for a successful
extradition of a fugitive criminal50.
2.1.8 Hearing of the Case
2.1.8. 1 Production in Court
Generally, the extradition process entails judicial process. It is for this reason that almost all
the bill of rights in the Constitution applies. One of such important requirements of the
Constitution is that every arrested person is supposed to enjoy the right to a fair trial51.

47 Black Henry, Blacks Law Dictionary, p.698

48 ibid., p. 852
49 ibid., p.1368
50 Busolo Mayeku An Appraisal of Extradition Law and Practice in Kenya LSKJ 9(2) (2013) p. 9
51ibid p.9- 10
12

.before arrest, a warrant of arrest is issued. Once its issued, the fugitive criminal is then
brought before a magistrate who shall then hear the case in the same manner and have the
same jurisdiction and powers as in the case of a trial before a subordinate court 52.

2.8.1.2 Adducing Evidence

For countries falling under the Extradition (contiguous and Foreign Countries) regime, the
magistrate shall receive any evidence which may be tendered to show that the case is one to
which the relevant provisions of Section 16 (Provision on restriction on surrender or return)
apply or that the crime of which the prisoner is accused is not an extradition crime 53.
Therefore, any fugitive criminal will rely on this provision as a defense to their extradition,
for instance on the ground that the offence in respect of which his surrender is required is one
of apolitical character.
For countries falling under the Extradition (commonwealth Countries) regime, where the
court has received an authority to proceed in respect of a fugitive arrested, it will hear any
evidence tendered in support of the request for the surrender or on behalf of the fugitive, that
the offence to which the authority to proceed relates is an extradition offence. The evidence
should be sufficient to warrant his trial for that offence if it had been committed in Kenya.
Where the fugitive is alleged to be unlawfully at large after conviction of the offence, that he
has been so convicted and appears to be so at large, the court shall, unless his committal is
prohibited by any other provision of the said Act, commit him to custody to await his
surrender, but if the court is not so satisfied, or if the committal is so prohibited, the court
shall discharge him from custody54.

2.1.8.3 Evidential Threshold in Extradition Proceeding

Countries falling under the Extradition (contiguous and Foreign Countries) regime, evidence
to be received shall consist of depositions or statements on oath or affirmation taken in the

52 See section 7(1) of Extradition (contiguous and Foreign Countries) Act, Cap 76. See also; section 9(3) of
Extradition (commonwealth Countries) Act, Cap 77.

53 Section 7(2) of Cap 76.

54 Section 9(5) of Cap 77.
13

country concerned and copies of the original depositions or statements and official
certificates of or judicial documents stating the fact of conviction duly authenticated55.
For countries falling under the Extradition (commonwealth Countries) regime the following
documents, duly authenticated and certified by a judge or magistrate or officer in or of that
country shall be admissible: An overseas warrant; a document which purports to set out
evidence given on oath in a designated Commonwealth country; a document which purports
to have been received in evidence, or to be a copy of a document received in evidence, in
proceedings in a designated Commonwealth country and a document which certifies that a
person was convicted on a specified date of an offence under the law of a designated
Commonwealth country56.
As regards the extent to which the Magistrates Court should be satisfied before it can release
an accused person alleged to have committed an offence in a foreign country to the law
enforcement in that country; J.B. Owing J, in an appeal filed by the Attorney General
seeking to set aside orders not to have the accused extradited to Tanzania for criminal trial in
Republic v Wilfred Onyango Nganyi and another [2008] eKLR observed that:
from the full text of this judgment, it should emerge clearly that the mandate of the
Magistrate during the extradition hearing, was to ascertain merely that a prima facie
link existed between the respondents and the criminal incident; full ascertainment of
their linkage belonged to the arena of trial, which would result in conviction or
acquittal57.
Therefore, during the hearing of an extradition request, the magistrate should only be
concerned with authentication of documents and to establish whether a prima facie evidence
exists connecting the suspects to the alleged crime58.
55 Section 17(1) of Cap 76.
56 Section 16 of Cap 77.
57 Busolo Mayeku An Appraisal of Extradition Law and Practice in Kenya LSKJ 9(2) (2013) p. 6
58 ibid., p.7
14

While discussing the issue of extent of proof required extraditing someone, the court in the
case of Torroha Mohamed Torroha v Republic Criminal Appeal No. 163 of 1988 held as
follows:
..before exercising his discretion to order the return of the prisoner, the Magistrate should peruse the entire
evidence, and understand it, without taking the position of a trial court. So, the degree to which the Magistrate
has to be satisfied is not expected to be as high as if any such satisfaction was derived from an analysis and
evaluation of evidence adduced at a trial. The Magistrate is under no duty to [inquire] into the merits of the
charges to be preferred. The Magistrate does not try or attempt to try any issue, because there is no hearing
Kinga v Republic59. If there is some evidence which discloses a connecting factor between the prisoner and the
alleged offences the Magistrate should order the prisoner to be returned 60.

2.8.1.5 Final Orders of the Court

Countries falling under the Extradition (contiguous and Foreign Countries) regime, if the
magistrate commits a criminal to prison, he shall commit him to prison to await the warrant
of the Minister now Cabinet Secretary (CS), for his surrender; and the magistrate shall
forthwith send to the now Cabinet Secretary, a certificate of the committal and such report on
the case as he may think fit61. Whenever a magistrate commits a fugitive criminal to prison,
he shall inform the criminal that he will not be surrendered until after the expiration of fifteen
days and that he has a right to apply for the issue of directions in the nature of habeas
corpus62.
Habeas Corpus is Latin term which means you have the body. Its the name given to a
variety of writs, having for their object to bring a party before a court or judge63.

59 [1975] E.A. 155

60 ibid p. 7
61 Section 8(3) of Cap 76.
62 Section 9(1) of Cap 76
63 Black Henry, Blacks Law Dictionary, p. 837
15

For countries falling under the Extradition (commonwealth Countries) regime, where a
fugitive is committed to custody under Section 9, the court shall inform him of his right to
make an application for habeas corpus and shall forthwith give notice of the committal to the
DPP64.
On an application for habeas corpus, the High Court may order the fugitive to be discharged
from custody if it appears to the High Court that it would be unjust or oppressive to surrender
him, because of any of the following reasons:
(a) The trivial nature of the offence of which he is accused or was convicted.
(b) The passage of time since he is alleged to have committed the offence or
To have become unlawfully at large, as the case may be.
(c)Them accusation against him is not made in good faith in the interests of
Justice65.

2.1.9Warrants of Surrender
The Extradition (Contigous and Foreign) Countries Act, Cap 76
Warrants of surrender under this act are stipulated in section 10 of the Act. Surrender involves
submission of a criminal by one state who is present in its territory to another state that either
seeks the person for the purpose of prosecution or for the purpose of enforcing a sentence.
Thus it involves a demand by one sovereign state upon another sovereign state for surrender
of an accused person or convicted person and the surrender of such person to the demanding
sovereign. The object is to prevent the escape of persons accused or convicted of crime and to
secure their return for the purpose of trial and punishment to the demanding state.
Cap 76 gives the Magistrate power to commit the criminal to prison as he awaits the warrant
of the Cabinet Secretary of foreign affairs for his surrender. However he has to send a
certificate of committal of the criminal to the Cabinet Secretary of Foreign Affairs.
64 Section 10(1) of Cap 77.
65 Section 10(3) of Cap 77.
16

However, Section 9 of the Act states that a criminal shall not be surrendered until after 15
days have passed after his committal. This section also obliges the magistrate to inform the
criminal of his right of habeas corpus.
Upon the expiration of 15 days, the minister may by warrant under his hand order for the
surrender of the fugitive criminal to persons in his opinion duly authorized to receive the
criminal by the country the request for the surrender was preceded.
However, if after 2 months the fugitive criminal has not been surrendered and conveyed out
of Kenya and directions of habeas corpus issued, a judge of the high court may order the
criminal to be discharged out of custody unless sufficient cause is shown to the contrary.
2.2 The Extradition (Commonwealth Countries) Act, Cap 77
Under this Act, warrants of surrender are stipulated under Section 11.
Section 11(1) mandates the Attorney General with the power to issue a warrant of surrender
to the requesting country unless the surrender is prohibited or is prohibited for the time being
or the Attorney General decides not to issue the warrant.
Section 11(2), (3) and (4) give instances where a warrant of surrender shall not be issued.
These include

Where a fugitive is serving a sentence, until the sentence has been served,
Where the fugitive is charged with an offense, until after the charge has been disposed
of or withdrawn and, if it results in a sentence of imprisonment, the sentence has been

served,
Where it would be unjust or oppressive to surrender the fugitive concerned,
Where the fugitive is accused or convicted of an extradition offence not punishable
with death in Kenya, and could be or has been sentenced to death for that offence in

the requesting country,

Where another country besides the country in consequence of whose request the

fugitive was committed has requested for the surrender of the fugitive criminal,
Where the Attorney-General is of the opinion that it would be dangerous to the life or
prejudicial to the health of a fugitive to surrender him, he may order that he be placed
in custody at the place where he is or at another place where he can be removed
without danger to his life or prejudice to his health.

However if after two months, after issuance of a warrant of surrender against him, the
criminal may apply to the High Court for a discharge which if satisfied that due notice has
17

been given to the Attorney-General, it may, unless sufficient cause is shown to the contrary,
order that the applicant be discharged from custody and, if a warrant of surrender has been
issued, quash that warrant.

2.2.1Extradition Procedure in a nut shell

As seen from above extradition in Kenya is governed by two main local legislations which
are;
1. The Extradition (Commonwealth) Act66
2. The Extradition Contagious and foreign countries act67.
It is from our research that we found that extradition in Kenya goes through the following
steps;

The offence
The Request
The warrant
The arrest
The initial hearing
Extradition hearing
Extradition

66 Cap. 77 laws of Kenya. Extradition (commonwealth Countries) Act

67 Cap. 76 laws of Kenya. Extradition (Contiguous and. Foreign Countries)
18

19

CHAPTER THREE
3. Challenges Facing the Extradition Proceedings
3.1 Political Interference.
As has been clearly outlined, the extradition proceedings involves state parties which though
sovereign and control their affairs as they please are expected to live as a community of
nations and ensure that international law they ratify and domesticate are applied in their
jurisdiction. However there are instances when states fail to have regard to the rule of law in
order to push for their own interests. This was evidenced by the presence of the President of
Sudan Omar Ahmad Hassan Al Bashir who is wanted by the International Criminal Court
(ICC) 68for five counts of crimes against humanity and three counts of genocide. The ICC
issued two arrest warrants for the president of Sudan on 4 th March 2009 and 12th July 2010.69
All state parties of the Rome statute of which Kenya is a member to were expected to
cooperate with the international court for the arrest and surrender of the president of Sudan.
President Omar was present on the promulgation of the 2010 constitution reportedly on the
invitation of the Kenyan Government. It was evident therefore that the Kenyan government
as the host failed, neglected or refused to arrest and surrender him to the International
Criminal Court. 70
An application was made in the courts by concerned persons. In the case of The Kenya
Section of The International Commission of Jurists -v- Attorney General and 2 others,71 the
applicant The Kenya Section of The International Commission of Jurists pursuant to article 2,
3 of the Constitution that requires Kenya to apply in its law all international treaties it has
ratified and section 30 and 32 of the International Crimes Act, 2008 which provides that a
68 The court is established under the Rome statute of which Kenya has ratified and domesticated it.
This legislation is the International Crimes Act of 2008.
69 http://kenyalaw.org/caselaw/cases/view/77625... Accessed on 25 march 2016
70 Ibid 2
71 High court at Nairobi Miscellaneous Criminal Application 685 of 2010
20

judge upon being presented with the information that a person who is wanted by the ICC is
presently or likely to come into Kenya shall give reasons for the issue or refusal to issue a
warrant. The applicants sought the following orders:
1

That this honorable Court be pleased to issue a provisional warrant of arrest against

one Omar Al Bashir the President of Sudan.72

That there be issued orders to the 2nd Respondent, the Minister of State for Provincial
Administration, to effect the said warrant of arrest, if and when, the said President
[Omar Al Bashir] sets foot within the territory of the Republic of Kenya. He was
expected in Kenya for a meeting convened by Kenya through the Intergovernmental
Authority on Development (IGAD) of which Sudan is a member of.

The court held that it was evident the Rome statute was part of our Kenyan laws and had
been further domesticated. The Rome Statute obligations are customary international law
which a State cannot contravene.73

Such an act would suffice to intentionally violating

fundamental rules of international public policy would be detrimental to the international

legal system and how that system and the society it serves defines itself.74
The court went on to further state that the duty to prosecute international crimes had
developed into jus-cogens and customary international law, therefore States were expected to
prosecute perpetrators wherever they may be found.75
The court went on to assert its jurisdiction to issue warrant of arrest against any person,
irrespective of his status,76 if the person has committed a crime under the Rome Statute, 77

72High court at Nairobi Miscellaneous Criminal Application 685 of 2010 at page 3

73 High court at Nairobi Miscellaneous Criminal Application 685 of 2010 page 14

74 Ibid 4 n 6
75 Ibid 4 page 14
76 Ibid 4 page 16
77 Ibid 4 n 9
21

under the principle of universal jurisdiction, and further to enforce the warrants should the
Registrar of the International Criminal Court issue one.78
3.1.1 Lengthy Court Procedures
Persons who are appearing before the court have been known to take advantage of court
technicalities therefore leading to longevity of their extradition proceedings. In the case of
Samuel Kimuchu Gichuru and another -v- The Attorney General and 2 others79 the case
above was first presented in the residents magistrate court who ruled that the persons
requested for extradition should be extradited. The parties to be extradited Samuel Gichuru
and Chris Okemo not pleased with the decision invoked their right to appeal 80 to the High
Court on grounds that included their right to fair trial. The matter was brought before the
Constitutional High Court in 2013 and judgment was delivered on 18 December 2015.
3.1.2 Right Party to Prosecute Persons to be extradited
Under the Kenyan extradition laws the party that is to receive the letters of extradition is the
attorney general as he is the legal counsel to the state. With the dawn of the constitution,
2010 there was established an office of the Director of Public Prosecutions (DPP) whose
mandate is to deal with criminal proceedings instituted within the courts in Kenya. 81 The
provision of the constitution goes further to provide for The DPP to be independent and in
carrying out his powers and function he requires no consent, direction or authority.82 Under
the repealed constitution, the attorney general (AG) had been mandated to handle all
government proceedings including criminal proceedings. The extradition legislation that was
in force prior to the constitution, 2010 recognized the AG as the right party to institute
extradition proceedings in the Kenyan courts. In the case of Samuel Kimuchu Gichuru and
another -v- The Attorney General and 2 others 83 the AG brought in his submissions seeking
78 Ibid 4 page 16 17
79High Court of Kenya at Nairobi Constitutional Application No.111 of 2013
80 Article 49 of the Constitution: rights of accused persons
81 Article 157 of the Constitution
82Article 157 of the Constitution
83 High Court of Kenya at Nairobi Constitutional Application No.111 of 2013
22

to reverse the decision of the lower court on the basis that it had erred in law in accepting the
DPP to institute extradition proceedings as they were special international legal proceedings
of a sui generis nature and that public international legal processes only recognize the office
of the AG as the body with the authority to undertake such proceedings. 84 The AG agreed
with the applicants on the nature of extradition proceedings as matters of international
relations involving States and therefore such matters created a ministerial responsibility and
the AG was the minister so responsible and not the DPP. He argued further that extradition is
a process and not a prosecution in itself and in any event, extradition is extraterritorial and the
DPP has no such mandate.85. The high court upheld the lower courts decision reiterating that
the provisions of the extradition legislation in Kenya use terms such as accused or convicted
which are terms found in the criminal aspect of law.

86

He further stated that although

extradition proceedings have elements of international law, they are not sui generis
proceedings but are criminal proceedings.87 The court further upheld the decision by the
lower court that AG in no way delegated the power to issue the authority to proceed but it
was taken away from him by the Constitution and given to the Director of Public
Prosecutions who was merely exercising it in the proceedings by signing the authority to
proceed .88
3.1.3 Weighing The Rights Of The Accused Person Vis A Vis That of The Requesting
State.
The constitution of Kenya has been viewed as progressive and its bill of rights conforms to
international laws. Among the rights enunciated in the constitution are the rights of accused
persons to fair hearing89 and the rights of arrested persons90 which include the right to be
84 Ibid 12 page 6
85 Ibid 12 n 7
86 High Court of Kenya at Nairobi Constitutional Application No.111 of 2013 at page 10

87 High Court of Kenya at Nairobi Constitutional Application No.111 of 2013 at page 12

88 High Court of Kenya at Nairobi Constitutional Application No.111 of 2013 page13
89 Article 50
90 Article 49
23

released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are
compelling reasons not to be released.91 The courts under the constitution, 2010 have been
seen to apply the principles of fair hearing and rights of accused persons. In the case of
Samuel Kimuchu Gichuru and another -v- The Attorney General and 2 others 92 the court
afforded the applicants an opportunity to appeal which is one of the principles under the right
to fair hearing. It went on to make decisions that the applicants had sought as relates to them
being accorded fair hearing under the laws of Jersey, which is a territory under the UK. The
applicants were wanted in the jurisdiction for commission of economic crimes. The court was
of the opinion that before Kenya ratifies any treaty or enters into any contractual agreement
with another State, the Office of the AG and the ministry of foreign affairs must do due
diligence. Before Kenya agreed to enter into an extradition agreement with the Island of
Jersey it is therefore right to assume that it was satisfied that its legal system met all the rules
of fairness and legality.93
The court was further, of the view that the question of the legal system of another sovereign
state does not fall within the jurisdiction of a municipal Court to. That power and matter falls
within the confines of international law and International Courts and Tribunals therefore the
Court or any other Court in Kenya would not be acting fairly if it purports to determine how
the legal system of Jersey works.94
In the case of Republic v Baktash Akasha Abdalla alias Baktash Akasha & 3 others.95 The
prosecutor being aggrieved by the orders of bail granted to the accused persons by the
resident magistrate filed a revision under section 362, 363, 364 and 365 of the Criminal
Procedure Code in the High Court seeking orders for stay of the Chief Magistrate's orders and
variation of the Lower Court orders and to place the Respondents in custody pending the

91 Ibid 23 (1)h
92 Ibid 12
93 High Court of Kenya at Nairobi Constitutional Application No.111 of 2013 at 12 page17
94 ibid p 26
95 High Court of Kenya at Mombasa Criminal Appeal No. 178 of 2014
24

hearing and determination of the extradition proceedings.96 The high court in this instance
upheld the decision by the trial court that grant of bail was perfectly legal and proper. The
trial magistrate acted well within his mandate and powers in considering and exercising his
discretion to grant bail.97

3.1.4 Dual Criminality

The process of extradition requires that the offense relator is to be returned in an act or series
of acts which national parties recognizes as extraditable either on basis of reciprocity or
specific reference to an applicable treaty.
A prerequisite to extradition is recognition by both requesting and requested states that the
offense is one which extradition is available. In establishing extraditable offenses, the content
of the offensive conduct must satisfy the requirement of dual criminality, that is; an accused
be extradited only if the alleged criminal conduct is considered criminal under laws of the
surrendering and requesting states.
However, serious challenges arise as to the completeness of an extradition request focusing
on:
a. The identity of the subject.
b. The question of whether or not an offence is extraditable
The main focus of dual criminality will be on the conduct rather than on the technical
elements of the offense.

3.1.5 Doctrine of Specialty

Usually the requesting state must specify the offense for which it is seeking to return the
relator and ensure that upon that return, it may only try him/her for the offenses covered in
the request only and the treaty authorizing the request.

96High Court of Kenya at Mombasa Criminal Appeal No. 178 of 2014 page 1
97 Ibid p 29
25

This doctrine supports dual criminality and also further prevents the relator from being
prosecuted for acts which would not be a crime in the requested state. The doctrine of
specialty also ensures against the breach of trust by a requesting state and works to avoid
prosecutorial

abuse

against

the

relator

after

the

requested

state

obtains

in

personamjurisdiction over the relator.

3.1.6 Doctrine of Non-Inquiry
This doctrine prevents the courts of one state from reviewing the internal governmental
processes of another state. This is usually the means by which one sovereign state respects
the laws and beliefs of another equal sovereign state.
The court of the requested state is usually precluded from judging or supervising the integrity
of the judicial system of another sovereign. Therefore no state may judge another states legal
system or process.

CHAPTER FOUR
4. Comparative Study on the United Kingdom Extradition Proceedings.
The United Kingdom currently has extradition arrangements with over 100 countries, either
through bilateral extradition treaties, the European Arrest Warrant Scheme, or the London
Scheme on extradition with the Commonwealth. These extradition treaties are divided into

26

two categories. The first category refers to some territories under the European Arrest
Warrant framework include98:
i.
ii.
iii.
iv.
v.
vi.

Austria
Belgium
Bulgaria
Croatia
Portugal
France

However, the United Kingdom Extradition Act of 2003 allows adhoc arrangements to be
made for the extradition of a person to a country with which the United Kingdom has no
extradition agreement with. If the request comes from a state which operates under the
European Arrest Warrant Scheme, the requesting state only needs to show that there is a valid
arrest warrant. A valid arrest warrant needs to have the following elements;

The subjects identity.

The alleged offence.
Details of other outstanding warrants.
The sentence which may be imposed.
Circumstances in which the person is alleged to have committed the offence.

A warrant also needs to include a statement which confirms that it has been issued with a
view of arresting the individual and to extradite him so that he can be prosecuted or so that a
custodial sentence can be executed accordingly. However, if the subject has already been
convicted, the statement in the warrant needs to state that the individual is unlawfully at large,
and it should also indicate the particulars of the sentence.
The United Kingdom does not extradite subjects to a country where they may be sentenced to
death or executed.
Courts in England usually require prima facie evidence of guilt before agreeing to extradition
proceedings. Furthermore, the decision on whether to extradite a person can be appealed to a
higher court.

98 Extradition: processes and review 5 January 2016 http://www.gov.uk/guidance/extraditionprocesses-and-review (accessed 29th March 2016)
27

4.1 Extradition Process in the United Kingdom.

The extradition process in the United Kingdom is regulated by part one of the Extradition Act
of 2003.This process is as follows;

Submission of the European Arrest Warrant

Certification
Arrest
Initial hearing
Extradition hearing

4.1.1 The European Arrest Warrant

It is usually submitted to the National Crime Agency electronically and by means of an alert
placed on the Second Generation Schengen Information System. In urgent matters, a
requested person may be arrested before the receipt of the European Arrest Warrant if the
arresting officer has reasonable grounds for believing that a warrant has been or will be
issued in respect of the requested person99. However, the arrest warrant must be received in
time before a court hearing which ought to be conducted as soon as practicable. Once an
extradition request is received by the United Kingdom, the request is certified.

4.1.1.2 Certification
In England, Wales and Northern Ireland, the National Crime Agency (NCA) is the body
which certifies the request to ensure that it is in order. The body ensures that the essentials
necessary to be in an arrest warrant as mentioned previously are in order. Once it is certified,
a warrant of the wanted persons arrest is issued. Once the person is arrested, he is brought
before court for an initial hearing.

4.1.1.3 Initial hearing

This is where the judge does the following;
Confirms the identity of the requested person.
Informs the person about the procedures for consenting to be surrendered to the
requesting state. Consent must be given before the judge and is irrevocable100.
If the person does not consent to extradition, to fix the date for the extradition hearing.
99 Article 5 of the Extradition Act 2003
28

 Inform the person about the contents of the arrest warrant.

Remand the person in custody or grant him bail.

4.1.1.4 Extradition hearing

At the extradition hearing, the judge should be satisfied that the offence for which the person
is being requested for, constitutes an extraditable offence. This includes the requirement that
the conduct would amount to a criminal offence, were it to occur in the United Kingdom.
Statutory Bars provided in the Act should not apply101. The judge should also ensure that the
bars to extradition do not apply in the matter. These bars include;
1.
2.
3.
4.
5.
6.
7.

The rule against double jeopardy

Extraneous considerations
The passage of time
The persons age
Hostage-taking considerations
Specialty
The persons earlier extradition to the United Kingdom from a third country in
the category one territory or a non- category one territory.

The judge is further required to decide whether the persons extradition would be compatible
with the convention on human rights, otherwise, he must order the persons discharge if it
contravenes the human rights of the person. If the question is answered in the affirmative, he
must order the person to be extradited102.
4.1.1.5 Appeals
If one is unhappy with the decision of the judge, they may apply for an appeal against the
order for extradition or order discharging the extradition case against the requested person.
An appeal may be brought on a point of law or fact. Notice is given in accordance with rules
of court within seven days, starting with the day on which the order was made. If the appeal
is allowed, the order for extradition may be quashed and the person discharged.

100 Article 5 of the Extradition Act 2003

101ibid Article 8

102 Article 8 of the Extradition Act 2003

29

An appeal also lies to the House of Lords from the High Court. Leave to appeal to the House
of Lords can only be granted if the High Court certifies that there is a point of law of general
public importance involved in the decision and that it appears to the court granting leave, that
the point is one which ought to be considered by the House of Lords.
If there is no appeal, the requested person must be extradited within ten days, starting with
the day on which the judge makes the final order or a later date that must be mutually agreed
upon by the judge and the requesting state.

30

CHAPTER FIVE
5 Conclusion and Recommendations
5.1 Conclusion
Extradition proceedings are covered under Cap 76 and Cap 77 of the Laws of Kenya; these
laws are outdated and need to update to much the current constitution dispensation.
Human rights have also come to the fore front in the last decade and Kenya has ratified many
international treaties and conventions on Human rights that are considered part of Kenyan
law as par Article 2(5) and 2(6) of the constitution .The extradition process should therefore
follow a routine that is contrary to human rights.
The issue of terrorism is an emerging issue in extradition proceedings as countries have often
gone against the requirements of the law and extradited fugitives without following the
necessary legal provision.
In conclusion extradition is complicated issues as it involves matters of jurisdictions and
countries should endeavor to continue to enhance cooperation between then in terms of
extraditions in order to enhance security in the various regions.

5.1.1 Overcoming Legal Challenges in Extradition

Based upon treaty relations or reciprocity; Extraordinary or illegal extradition is a violation
can occur where the treaty does not cover allegedoffence?
1. Extraodinary extradition is a violation of human rights due to actual physical abuse,
violation of freedom of movement, threat to personal integrity, depredator of liberty,
subjecting the detainee to torture, inhuman and degrading treatment, arbitrary detention and
abuse. This contravenes Articles 7 and of International Covenant on Civil and Political
Rights.
Article 7 states that no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.

31

Article 9 states that;

1. Everyone has right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty expect on such
grounds in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of reasons of his arrest
and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on criminal charge shall be brought promptly before a
judge or other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release. It shall not be the general rule
that persons awaiting trial shall be detained in custody, but release may be subject to
guarantees to appear for trial, at any other stage of judicial proceedings, and should
occasion arise, for execution for the judgment.
4. Anyone who is deprived of his liberty by arrest or detention shall be entailed to take
proceedings before a court, in order that court may decide without delay on the
lawfulness of his detention and order his release if detention is not lawful.
5. Anyone who has been the victim of lawful arrest or detention shall have an
enforceable right to compensation.
It further contravenes customary international law, especially articles 3,5,8,9, and 10 of
UDHR.It undermines the right to a fair trial before an independent and impartial court.
Renditions are only legal when they coincide with internationally accepted rules of law and
are regulated by treaties.
Abdalla Ocala was captured and extradited in Nairobi in 1999.About 100 men, women and
children were extradited to Somalia in 2007 and 13 men were extradited to Uganda in 2010
without following due process. There were no warranties of arrest and no judicial hearing
wasconducted. Detainees were not given the remedy of habeas corpus before rendition.
There is an official cooperation between East Africa states to exchange criminals without
compliance with extradition laws since the establishment of the East Africa Community in
1967.This has led to violation of rights of citizens. However, Tanzania has refused to
extradite a suspect was holding over the July 11, 2010 Kampala bombings without
compliance with the law.

32

Offence committed must be an offence punishable by imprisonment for more than 12 months
and should not be of a political character and fugitive should not have been previously
acquitted or convicted. Punishment should not be the basis of race, religion, nationaly or
political opinions.
The request should be issued by the AG on behalf of the requesting government accompanied
by an overseas warrant of arrest and certificate of conviction or sentence.
Fugitive bought to court promptly and shall have the right to apply for habeas corpus. Court
shall issue a notice of committal to the Attorney General. Fugitive shall not be surrendered
before the expiry of 15 days from the date of arrest. Onappeal, the High Court may discharge
the fugitive due to the trivial nature of the offence, passage of the between the request and the
conviction, and of the application is not made in good faith.
Extradition cannot proceed where there is failure to fulfill dual criminality that is the offence
must be an offence both in the country of fugitive and requesting state.
5.1.2 Doctrine of Specialty
It is codified in numerous bilateral extradition treaties and regional extradition schemes,
provides that after receiving a fugitive through extradition a state may only prosecute the
individual of the offences agreed to by the sending state as the basis as the basis of
extradition.Speciality serves as safeguard against prosecutions for political offences and
violations of other substantive rules of extradition law.
5.1.3 Case of Mohamed Abdulmalik
On 13thFeburary 2007,MohamedAbdulmalik a Kenyan Born in Kisumu in 1973,was picked
up by the anti-terrorism Police Unit in a caf in Mombasa. He was detained and held
incommunicado in Kilindini Port and Urban Police Station in Mombasa before being
transferred to the Hardy,OngataRongai and Spring Valley Stations in Nairobi. While detained
in KenyaMr.Abulmalik was not charged with any offence; was denied the right to challenge
his detention by way of habeas corpus application; was denied access to a lawyer a contact
with family member.
Nothing was heard of Mr.Abdulmalik until 26 th March 2007,when the US department of
defence issued a press statement announcing his detention at Guantanamo bay. The United
States

Ambassador

to

Kenya

then,MichealRanneberger,reportedly

confirmed

that

Mr.Abdulmalik was moved to Cuban camp with the full consent of the Kenyan Government
33

as part of collaboration between the two governments to fight global terrorism.

AlthoughMr.Abdulmalik has been held at Guantanamo Bay for the first time only in April
2008.Almost two years later, due to United States government delays, Mr.Abdulmalik has
now been able to challenge the lawfulness of his detention in a US court; nor has been any
decision issued by the less than adequate combatant review process. WhileMr.Abdulmaliks
family brought a habeas corpus application on his behalf in Kenya, the High court dismissed
the action on the basis that Mr.Abulmalik was no longer under the control of the Kenyan
Authorities and the Kenya Commissioner of Police could not therefore comply with a habeas
corpus writ requiring his production in court. The High court found that; it is evident that
voluntary or involuntary, the respondent have been placed themselves in a position in which
it is no longer within their power to produce the subject before this court. This court within
the concept of Habeauscorpus, will be unable to make orders for the production of the
subject, because such an order would be in vain. It is a fundamental principle applicable in
the judicial settlement anddisputes that a court of law is not to make an order in vain. Courts
orders are focused,clear,enforceable and capable of being secured by applying the law of
contempt,against those who disobey.From the facts placed before this court,the respondent
are,at this moment,not in control of the physical custody of the subject, and so they would not
be in factual position to comply with a writ of Habeaus corpus.

5.2 Recommendations
The relevant acts which are Cap 76 and 77 of the Laws of Kenya need to be updated to be in
tandem with the new constitution, the Laws need the following amendments;
i.

Article 157 of the constitution gives prosecution powers to the office of the Director
of Public Prosecution which were formerly in jurisdiction of the Attorney General.
TheDirector of Public Prosecution Act 2013 places extradition under the prosecution
powers o the director of public prosecution.The court in the Chris Okemo and Sam
Gichuru case reinstated this by stating that the director of public prosecution was the
one in charge of the Extradition proceedings.The acts therefore need to be updated as

ii.

they still refer extradition proceedings to the Attorney General.

There is a lot of duplicity in the two acts and a harmonization of the two acts to create

iii.

one comprehensive act that reflects both the commonwealth and foreign states.
The Attorney General has powers to counter the magistrates arrest warrant, in our
view this leaves a loophole for political interference in the extradition proceedings.
34

iv.

Recognition of the supreme court as the highest court in Kenya and can be
approached for matters of interpretation of the constitution.

Article 2(5) and 2(6) of the Constitution provide that any treaty ratified by Kenya becomes
part of the Kenyan Law,it is therefore our recommendation that Kenya should ratify more
treaties on Extradition to allow a better legal framework for extradition proceedings in
Kenya.
Establish a mechanism that will ensure that counter-terrorism operations in practice comply
with international human rights standards.States that are parties to extradition treaties need to
enact laws that outline clearly extraditable offences so as to prevent states from choosing
other means of attaining justice, which may be deemed as illegal.
Kenya should reform its laws and practices to specifically and expressly prohibit nay
deportation,extradition or rendition.Return or other transfer in its national law and practice
where substantial grounds would exist for believing that the individual would be at risk of
torture or other ill-treatment in the receiving state or further transfer to another state or
territory.

BIBILIOGRAPHY
Books

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Mayeku B. An appraisal of Extradition law and practice in Kenya

Ian Brown, International law (7th edition0
Dan E. Stigall,Ungovernedspaces,transitional crime and prohibit and extraterritorial
enforcement jurisdiction and international law
T. Claire de and Shorts E, International Criminal Law and Human Rights( 1st Ed, Sweet and Maxwell
2003)
Journals
Mayeku B. An Appraisal of Extradition Law and Practice in Kenya Law Society of Kenya Journals 9(2)
(2013

Dictionaries
Black Henry, Blacks Law Dictionary
Websites
Kenyalaw.org

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