Professional Documents
Culture Documents
Extradition Law in Kenya
Extradition Law in Kenya
› Kidnapping
Non-extraditable offences
› Where laws of both countries are not the same; or
CAP 76
Criminal Homicide and Similar Offences
Injury to Persons Not Amounting to
Homicide
Abduction, Rape and Similar Offences
Narcotics and Dangerous Drug
Damage to Property
Falsification of Currency and Similar
Offences
Forgery and Similar Offences
Misappropriation, Fraud and Similar
Offences
Piracy and Similar Offences
Slave Dealings
Offences against the Slave Trade Act
1873, or otherwise in connexion with the
slave trade, committed on the high seas
or on land, or
partly on the high seas and partly on
land.
General
Counselling, procuring, aiding and
abetting, or being an accessory before
or after the fact to any of the foregoing.
Organized Criminal Group Offences
Any offence that constitutes an offence
of money laundering under the
Proceeds of Crime Anti-Money
Laundering Act, 2009.
Section 3 – states that if an agreement
exists between countries other than
common wealth countries, with respect
to the surrender to that country of any
fugitive criminal, the minister may, by
order published in the gazette, declare
that this part apply…to such conditions,
exceptions and qualifications as may be
specified in the order
Section 5 – if a fugitive of any country is
arrested the country (Kenya) an
application is to be made to the Minister by
the consular officer or diplomatic
representative of that country.
The minister may by an order by his hand,
after receiving a requisition, signify to a
magistrate that a requisition has been
made and require the magistrate to issue
his warrant of arrest and detention of the
fugitive criminal
Section 8- (committal or discharge of
prisoner)
Section 6 and 7 provide that if a criminal
fugitive is arrested, he shall be brought
before a court, and evidence is
presented (that shows that the crimes
are not section 16 crimes )in the hearing
of a case shall commit him to prison, but
otherwise shall order him discharged.
Section 9
-When a criminal fugitive is committed to
prison, the prisoner is to be informed that
they shall not be surrendered until the expiry
of 15 days and that they have a right to
apply for habeas corpus.
-After which a minister may by warrant
under his hand order the fugitive criminal, if
not set at liberty on the decision of the
court, to be surrendered to such person as
is his opinion, duly authorized to receive the
fugitive criminal by the country from which
the requisition for the surrender proceed,
and the fugitive criminal shall be
surrendered accordingly.
Section 10
If a person has been committed to prison
and is not surrendered and conveyed
out Kenya within 2 months after the
committal, or if the directions of habeas
corpus are issued, after the directions,
any judge of the High Court may order
the criminal be discharged unless
sufficient cause of the contrary is given.
Section 12
It works where a warrant is issued to a
country where there is believe or
reasonable suspicion that this criminal is/
going to be/ going to go through.
The warrant is endorsed by the
magistrate from that jurisdiction.
The High Court sitting in this case has
ruled that Kenya courts do not have
jurisdiction to try persons for acts of
piracy committed in the High Seas.
Until September, 2009 the Penal Code
provided for the offence of piracy jus
gentium.
The section was repealed by the Merchant
Shipping Act, 2009 without a saving clause.
The 2009 Act is not applicable to this case
since it came into force after the offences
were committed.
The applicants were charged with the
offence of piracy contrary to section 69 (1)
as read with 69 (3) of the Penal Code. At
the close of the prosecution case, the court
put the applicants on their defense.
During trial, the applicants objected that
the court did not have jurisdiction to try
them since the offence was committed
in high seas in the Gulf of Aden outside
the territory of Kenya.
The court ruled that it had jurisdiction
and continued hearing the case.
The High Court held that the alleged
offence of piracy jure gentium was not
committed in territorial waters within the
territorial waters within the territorial
jurisdiction of Kenya Courts.
FACTS – A Mexican national had been
forcibly kidnapped and brought to the U.S
to stand trial for crimes in connection with
the kidnapping and murder of a U.S Drug
Enforcement Administration Special Agent
and his pilot.
He moved to dismiss his indictment at the
trial claiming that his abduction constituted
outrageous government conduct, and that
the District Court lacked jurisdiction to try
him because he was abducted in violation
of the extradition treaty between the US
and Mexico.
The District Court dismissed the
indictment on the ground that it violated
the Extradition Treaty, discharged him
and ordered his repatriation.
The Court of Appeals affirmed the
decision of the District Court, finding that
the jurisdiction was improper, based on
the fact that the US had authorized the
abduction and the Mexican Government
had protested the Treaty violation.
The Supreme Court reversed the Court of
Appeals decision.
It held that a court in the US had
jurisdiction to try a Mexican national who
had been forcibly kidnapped and
brought to the US for violations of the
criminal law of the United States.
It further held that a defendant may not
be prosecuted in violation of the terms
on an extradition treaty that requires that
he should be prosecuted for only those
offences for which he was extradited.
However, when a treaty has not been
invoked, a court may properly exercise
jurisdiction even though the defendant’s
presence is procured by means of a
forcible abduction.
It was stated “The question of how far his
forcible seizure in another country, and transfer
by violence, force, or fraud, to this country,
could be made available to resist trial in the
State court, for the offence now charged upon
him, is one which we do not feel called upon to
decide, for in that transaction we do not see
that the Constitution, or laws, or treaties, of the
United States guarantee him any protection.
There are authorities of the highest
respectability which hold that such forcible
abduction is no sufficient reason why the party
should not answer when brought within the
jurisdiction of the court which has the right to
try him for such an offence, and presents no
valid objection to this trial in such court.”
The South African Court of Appeals allowed an
Appeal against the conviction of the appellant for
treason.
The appellant, a member of the military wing of the
African National Congress who had fled South
Africa while under a restriction order, had been
abducted from his home in Mbabane, Swaziland,
by persons acting as agents of the South African
State and taken back to South Africa, where he
was handed over to police and detained in terms
of the security legislation.
He was subsequently charged with treason in a
Circuit Local Division.
The appellant had, prior to pleading,
applied for an order that the court
lacked jurisdiction to try the case as his
abduction was in breach of international
law and thus unlawful. The application
was dismissed and the trial continued.
He was convicted and sentenced to 20
years’ imprisonment. On appeal
against the dismissal of the application,
the South African Court of Appeals,
upheld the objection to the trial.
The Court stated that according to Roman
Dutch law, as adapted to the local
circumstances of South Africa (Roman
Dutch Common Law), one of the limitations
to a court’s exercise of jurisdiction in
criminal cases is that even if an offence was
committed within the area of jurisdiction of
the court, a court had no jurisdiction to try a
person who was abducted from another
jurisdiction by agents of the State authority
exercising power in the area of the
jurisdiction of the court.
It was stated “Several fundamental legal principles
are implicit in those rules (of the Roman Dutch law),
namely, the preservation and promotion of human
rights, good international relations, and the sound
administration of justice. The individual must be
protected against unlawful detention and against
abduction, the boundaries of jurisdiction must not be
violated, state sovereignty must be respected, the
legal process must be fair towards those who are
affected by it and the misuse of the legal process
must be avoided in order to protect and promote the
dignity and integrity of the administration of justice.
The state is also bound thereby. When the state itself
is a party to a case, as for example in criminal cases,
it must as it were come to court with ‘clean hands’.
When the state is itself involved in abduction over
territorial boundaries, as in the present case, its hands
are not clean(emphasis added). Rules such as those
mentioned are evidence of sound legal development
of high quality.”
The appellant in this case was arraigned
in the High Court of Zimbabwe on a
charge of contravening section 50(1) of
the Law and Order (Maintenance) Act
(cap 65). He was convicted of terrorism.
He appealed against the conviction.
The appellant was the leader of a group of
armed terrorists. The indictment alleged
that the appellant, acting in concert with
other persons and with intent to endanger
the maintenance of law and order in
Zimbabwe, attempted to commit an act of
terrorism or sabotage when he conspired
with others to forcibly effect the release
from the lawful custody of the Zimbabwe
certain South African agents detained on
the charges relating to their involvement in
acts of terrorism, sabotage or espionage,
and to remove them outside the borders of
Zimbabwe.
It was further alleged that in pursuance of the
plan, he entered Zimbabwe on June 27, 1988
at Kazungula border post, and acted in a
manner that was likely to cause serious bodily
injury to or endanger the safety of any person
within Zimbabwe, and did cause such serious
bodily injury.
In pursuance of the conspiracy, it was alleged,
the appellant entered Zimbabwe with a co-
conspirator. On being questioned by the
Zimbabwean Police and immigration officials,
he fled to Botswana.
The other members of the group remained in
Zimbabwe and attempted by force to effect
the release of the South African agents, but
were thwarted by the Zimbabwe security
agencies
At the time of his arrest, the appellant was a
resident of South Africa and a citizen of the
United Kingdom. He was arrested in
Botswana and remained in the custody of
the Botswana Police for 5 days. During that
period, he did not appear in court nor did
he have access to legal representation. He
was handed to the Zimbabwe Republic
Police on the 5th day.
There was no extradition treaty between
Zimbabwe and Botswana. The government
of Zimbabwe did not make a request to the
Government of Botswana for the extradition
of the appellant from Botswana to
Zimbabwe.
He was found guilty of the involvement in
the shooting of a security guard at the
ZISCO Airstrip at Kwe Kwe and deliberate
damage to the National Air Force's Bell
helicopter and sentenced to life
imprisonment with labor. One of the
issues on appeal was whether the High
Court had jurisdiction to try the appellant
The court however distinguished the
circumstances under which the appellant
had been brought to Zimbabwe from the
case of State v. Ibrahim and noted the
following facts.
The appellant in the Zimbabwe case was a
fugitive from Zimbabwe, who had entered
Botswana illegally in transgression of the
immigration laws.
He was apprehended by members of the
Botswana defense force and handed over
to the Botswana police, who were aware
that the authorities in Zimbabwe were
anxious that he be returned to stand trial.
The appellant was conveyed in the custody
of the Botswana police to the border
between the two countries and voluntarily
surrendered to the Zimbabwe Republic
police, who then promptly arrested him. The
agents of Zimbabwe did not use force or
deception to recover the appellant from
Botswana.
The Court concluded that the failure by the
Botswana authorities to have recourse to
proper deportation procedures did not
constitute a bar to the High Court in
Zimbabwe exercising jurisdiction over him
It was stated that “In my opinion it is essential that in
order to promote confidence in and respect for the
administration of justice and preserve the judicial
process from contamination, a court should decline to
compel an accused person to undergo a trial in
circumstances where his appearance before it has been
facilitated by an act of abduction undertaken by the
prosecuting state. (Emphasis ours).There is an inherent
objection to such a course both on grounds of public
policy pertaining to international ethical norms and
because it imperils and corrodes the peaceful co-
existence and mutual respect of sovereign nations. For
abduction is illegal under international law, provided the
abductor was not acting on his own initiative and without
authority or connivance of his government (sic). A
contrary view would amount to a declaration that the
end justifies the means, thereby encouraging states to
become law-breakers in order to secure the conviction
of a private individual”.
The defendant was a Canadian citizen
named Helen Susan Schmidt, who along
with her son Charles Gress and his friend
Paul Hildebrand had kidnapped a
young girl in Cleveland, Ohio. Schmidt
claimed to believe the girl was her
granddaughter and that the girl's
biological mother kept her in a home ill
suited for a child.
They were arrested in New York on 1982
She was charged with kidnapping (a
federal offence in the United States) and
with child-stealing (an offence in Ohio).
That same year she was acquitted of
kidnapping, but she fled to Canada
before her state trial commenced. She
was captured in Ontario and was
prepared to be extradited.
After the Supreme Court found it had
jurisdiction to review the case, it considered
whether extradition law was violated.
Under extradition law, a hearing in Canada
would ascertain if there was sufficient
evidence of a crime that could be criminal
in Canada as well as in the other nation.
It was decided that Schmidt "failed to
establish that the offence in Ohio is the
same offence as the offence under the
United States Code. The majority found that
the charge would be in accordance with
"traditional procedures" in Ohio.
Wilfred Onyango and Patrick Ayisi Ingoi were wanted
by law enforcement agencies in Tanzania for
allegedly stealing money in excess of Tshs. 5 billion
from the National Bank of commerce at Moshi on
21st May 2004. Subsequent investigations led to
arrests of certain Tanzanian suspects inside Tanzania
and the two Kenya respondents concerned with the
instant ruling inside Kenya.