Director of Public Prosecution v Okemo & 4 others
The bottom line
#The Supreme Court ruled that the DPP, not the Attorney General, is the proper authority for extradition cases.
What this practically means
#The Supreme Court has settled a dispute over who can begin extradition proceedings in Kenya. It ruled that the Director of Public Prosecutions (DPP) has the power to issue the 'authority to proceed' because extradition is a criminal matter. The Attorney General’s role is limited to receiving foreign requests and passing them to the DPP. This decision overturns a Court of Appeal ruling and allows the extradition of two suspects to Jersey to continue.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether extradition proceedings in Kenya are criminal, civil, or sui generis in nature.
- 2.Whether it is the Attorney General or the Director of Public Prosecutions to initiate and conduct extradition proceedings.
- 3.What is the nature of prosecutorial powers vested in the Director of Public Prosecutions, and if the same include the initiation and conduct of extradition proceedings?
- 4.Whether the 'authority to proceed' issued on the 6th of July 2011, by the Director of Public Prosecutions was valid.
Key legal issues
#Nature of extradition proceedings in Kenya
Extradition proceedings are criminal in nature, not sui generis or civil.
The court examined the Extradition Act and found it replete with criminal law terms such as 'accused', 'convicted', 'remand', 'bail', and 'committal orders'. Section 9(5) requires the court to determine if evidence would warrant trial if the offence had been committed in Kenya, and section 9(3) gives the court jurisdiction and powers as in a trial. The court distinguished extradition proceedings as akin to a preliminary hearing in a criminal matter, with decidedly criminal consequences, though not criminal proceedings in the technical sense. The administrative aspects involving the Executive do not negate the criminal character of the judicial phase.
Which office has the mandate to issue an 'authority to proceed' in extradition proceedings
The Director of Public Prosecutions, not the Attorney General, has the mandate to issue the authority to proceed.
Since extradition proceedings are criminal in nature, they fall within the DPP's exclusive prosecutorial powers under Article 157(6) of the Constitution. Section 7(1) of the Extradition Act, which refers to the Attorney General, must be construed in conformity with the Constitution under section 7(1) of the Sixth Schedule to refer to the DPP. The AG retains the executive role of receiving requests and transmitting them to the DPP. The Court of Appeal erred in holding that the definition of 'prosecution' in the ODPP Act including extradition was a drafting error; every word in a statute is presumed to have a role.
Validity of the authority to proceed issued by the DPP on July 6, 2011
The authority to proceed issued by the DPP was valid.
Flowing from the finding that the DPP has the mandate to issue the authority to proceed, the specific authority issued on July 6, 2011 regarding the extradition of the 1st and 2nd respondents was valid. The court rejected the argument that the Act had been amended without altering section 7(1), noting the supremacy of the Constitution over statutory provisions.
Legal principles established
#- Extradition proceedings in Kenya are criminal in nature and fall within the DPP's mandate.
- The DPP, not the Attorney General, has the authority to issue an 'authority to proceed' under the Extradition Act.
- The Attorney General retains the executive role of receiving extradition requests and transmitting them to the DPP.
- The Constitution overrides the Extradition Act where it refers to the Attorney General; it must be read as referring to the DPP.
- Extradition proceedings are akin to a preliminary hearing in a criminal matter.
- Every word in a statute is presumed to have a role, so the ODPP Act's inclusion of extradition in 'prosecution' is not a drafting error.
Court orders
#- 1.The appeal dated August 10, 2020 is hereby allowed;
- 2.The Judgment of the Court of Appeal dated March 2, 2018 is hereby overturned;
- 3.The proceedings before the Magistrates Court which had been trigged by the Authority to Proceed issued on July 6, 2011 by the Director of Public Prosecution are to continue forthwith on a priority basis either in the same court or court of competent jurisdiction;
- 4.The costs of this appeal shall be borne by the 1st and 2nd respondents.
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the judgment
I hold the view that extradition proceedings are quasi-criminal having elements of both criminal and administrative law.
I hold the view that extradition proceedings are quasi-criminal having elements of both criminal and administrative law.p. 30
Wrote the judgment
Extradition proceedings are neither civil nor criminal, but sui generis, involving treaties between nations for which reason only the AG can initiate the process.
I held a contrary view; that extradition proceedings are neither civil nor criminal, but sui generis, involving treaties between nations for which reason only the AG can initiate the process, concluding that 'the Authority to Proceed' was irregularly issued by the DPP.p. 34
- On appeal from
- Court of Appeal
- Civil Appeal No. 5 of 2016 as consolidated with Civil Appeal No. 23 of 2016
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Declaration that the Attorney General has neither any responsibility nor role in extradition proceedings.
The court held that the AG retains the Executive Authority to receive requests for extradition and to transmit the same to the DPP for necessary action.
Declaration that the Mutual Legal Assistance Act, 2011 is inconsistent with the Constitution and null and void.
The court did not grant this relief; the dissenting opinion noted the Act was not concerned with extradition but mutual legal assistance.
Declaration that section 7(1) of the Extradition Act is inconsistent with the Constitution and null and void.
The court instead construed section 7(1) in conformity with the Constitution to refer to the DPP, rather than striking it down.
Costs
The costs of this appeal shall be borne by the 1st and 2nd respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
it is the DPP as opposed to the AG who can initiate and conduct extradition proceedings.
the Attorney General however retains the Executive Authority to receive requests for extradition and to transmit the same to the Director of Public Prosecutions for necessary action.
extradition proceedings are akin to a preliminary hearing in a criminal matter.
Key timeline
#Practical implications
#Extradition now a DPP domain
When handling extradition matters, always obtain the authority to proceed from the DPP, not the AG. The Supreme Court has settled that extradition is criminal in nature, so the DPP's constitutional powers apply. Challenge any proceedings started by the AG as ultra vires. Note that the AG still plays a role in receiving requests, but cannot initiate.
Extradition risks clarified
Businesses facing potential extradition requests from foreign countries should know that the DPP is the sole authority to start proceedings. The AG acts as a conduit. This decision streamlines the process and may speed up extradition for white-collar crimes like money laundering. Ensure compliance with international requests through the DPP.
Your rights in extradition cases
If you are subject to an extradition request, check that the authority to proceed was issued by the DPP, not the Attorney General. The Supreme Court confirms that extradition is a criminal process, so you have all the protections of criminal procedure, including the right to a fair hearing. The DPP must follow criminal law standards.
Frequently asked questions
#Who has the power to start extradition in Kenya?+
The Supreme Court ruled that the Director of Public Prosecutions (DPP) has the power to issue the authority to proceed, not the Attorney General. Extradition is a criminal matter, so the DPP handles it.
What is the difference between the Attorney General and DPP in extradition Kenya?+
The Attorney General receives extradition requests from foreign countries and passes them to the DPP. The DPP then decides whether to issue an authority to proceed and conduct the proceedings, as they are criminal in nature.
Can the Attorney General start extradition proceedings in Kenya?+
No, after the Supreme Court case DPP v Okemo, only the DPP can start extradition proceedings. The Attorney General's role is limited to receiving requests and transmitting them to the DPP.
Does the Constitution override the Extradition Act in Kenya?+
Yes, the Supreme Court held that the Extradition Act's reference to the Attorney General must be read as referring to the DPP to comply with the Constitution. The Constitution gives the DPP exclusive prosecutorial powers.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others[2026] KESC 33 (KLR)15 May 2026
- Juma v Republic (Criminal Application E023 of 2023) [2023] KECA 1138 (KLR)[2023] KECA 1138 (KLR)22 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Director of Public Prosecution v Okemo & 4 others", Case Analysis (2022). Petition 14 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/33/eng@2022-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.