Director of Public Prosecutions v Okemo & 4 others
The bottom line
#DPP, not Attorney General, has sole power to handle extradition cases in Kenya.
What this practically means
#The Supreme Court ruled that extradition proceedings are criminal matters. This means the Director of Public Prosecutions (DPP) must handle them, not the Attorney General. The DPP can issue the 'Authority to Proceed' to start extradition. The Attorney General only receives and forwards extradition requests to the DPP. The Court overturned a lower court ruling and ordered the stalled extradition case to continue quickly.
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
#Whether Extradition Proceedings in Kenya are criminal, civil, or sui generis in nature.
Extradition proceedings are criminal in nature.
The majority held that a reading of Article 157 of the Constitution, relevant extradition treaties, and other applicable laws leaves no doubt that extradition proceedings are criminal. This conclusion is based on the constitutional framework governing prosecutorial powers and the nature of the proceedings themselves, which involve the surrender of a person for criminal prosecution in another jurisdiction.
Whether it is the Attorney General or the Director of Public Prosecutions to initiate and conduct Extradition Proceedings.
The Director of Public Prosecutions, not the Attorney General, has the authority to initiate and conduct extradition proceedings.
The majority reasoned that because extradition proceedings are criminal in nature, the Attorney General is divested of any authority to involve himself in their initiation or conduct before a court. However, the Attorney General retains the executive authority to receive extradition requests and transmit them to the DPP for necessary action.
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.
The DPP's prosecutorial powers include the initiation and conduct of extradition proceedings.
The majority held that under the current constitutional dispensation, the powers to prosecute any conduct of a criminal nature is the exclusive preserve of the DPP, subject only to court martial proceedings under Article 157(6)(a) and any legislation enacted by Parliament under Article 157(12) that is consistent with the preceding sub-articles.
Whether the 'Authority to Proceed' issued on the 6th of July 2011, by the Director of Public Prosecutions was valid.
The 'Authority to Proceed' issued by the DPP on 6th July 2011 was valid.
Flowing from the finding that extradition proceedings are criminal and that the DPP has exclusive prosecutorial powers, the majority concluded that the DPP's issuance of the 'Authority to Proceed' was valid.
Legal principles established
#- Extradition proceedings are criminal in nature.
- The DPP has exclusive constitutional authority to prosecute all criminal conduct, including extradition.
- The Attorney General cannot initiate or conduct extradition proceedings.
- The DPP's 'Authority to Proceed' is valid for extradition cases.
- The Attorney General's role is limited to receiving and transmitting extradition requests to the DPP.
Court orders
#- 1.The appeal dated 10th August, 2020 is hereby allowed;
- 2.The Judgment of the Court of Appeal dated 2nd March, 2018 is hereby overturned;
- 3.The Proceedings before the Magistrates Court which had been triggered by the Authority to Proceed issued on 6th July 2011 by the Director of Public Prosecutions are to continue forthwith on a priority basis either in the same court or court of competent jurisdiction;
- 4.For the avoidance of doubt the word 'continue' in 3 above includes 'commencing afresh' which course of action is to be determined by the Director of Public Prosecutions, should it be necessary.
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the judgment
Extradition proceedings are quasi-criminal in nature, having elements of both criminal and administrative law. On the one hand, they commence as foreign policy issues including execution of international treaties and bilateral agreements between governments. On the other hand, they conclude as criminal processes. Therefore, they give equal but complementary roles to both the Attorney General and the Director of Public Prosecutions, with each office required to play its part in the sequence of events that in totality amount to an act of extradition.
Extradition proceedings are quasi-criminal in nature, having elements of both criminal and administrative law. On the one hand, they commence as foreign policy issues including execution of international treaties and bilateral agreements between governments. On the other hand, they conclude as criminal processes. Therefore, they give equal but complementary roles to both the Attorney General and the Director of Public Prosecutions, with each office required to play its part in the sequence of events that in totality amount to an act of extradition.p. 5
Wrote the judgment
Extradition proceedings are special international legal proceedings based on reciprocity and originating from bilateral and multilateral treaties and agreements between nations, making them matters of international relations which involve the exercise of ministerial or executive responsibility. Because extradition is a process and not a prosecution undertaken in the jurisdiction of the requested state, it is only the office of the Attorney-General, in our case, as the principal legal adviser to the Government that has the authority to commence and undertake such proceedings.
Extradition proceedings are special international legal proceedings based on reciprocity and originating from bilateral and multilateral treaties and agreements between nations, making them matters of international relations which involve the exercise of ministerial or executive responsibility.p. 5
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
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.
A reading of article 157 of the Constitution, the relevant Extradition Treaties, and other applicable laws, leaves no doubt that Extradition Proceedings are criminal in nature.
The fact that Extradition Proceedings are criminal in nature, divests the Attorney General of any authority to involve him/herself in their initiation (ie issuance of 'authority to proceed) and conduct before a court of law.
Under the current constitutional dispensation, the powers to prosecute any conduct of a criminal nature is the exclusive preserve of the Director of Public Prosecutions.
The costs of this appeal shall be borne by the 1st and 2nd respondents.
Key timeline
#Practical implications
#DPP's exclusive extradition role
Lawyers must now direct all extradition matters to the DPP, not the Attorney General. The DPP's Authority to Proceed is legally valid. Ensure that any challenge to extradition proceedings focuses on the DPP's actions, as the AG lacks prosecutorial authority. Review ongoing cases where the AG was involved and consider raising this constitutional point.
Extradition risks for firms
Businesses with international operations should note that extradition is now treated as criminal proceedings under the DPP's control. This may affect compliance with cross-border legal requests. Ensure your legal teams understand that the DPP handles extradition, not the AG, to avoid procedural delays. Update internal policies for handling extradition requests from foreign partners.
Know who handles your extradition
If you face extradition, know that the DPP, not the Attorney General, controls the process. The DPP's decision to issue an Authority to Proceed is valid. Your lawyer should ensure any involvement by the AG is challenged. This ruling may speed up your case since the Supreme Court ordered priority treatment. Seek legal advice tailored to this new framework.
Frequently asked questions
#Who handles extradition requests in Kenya after the Supreme Court ruling?+
The Director of Public Prosecutions (DPP) now handles extradition proceedings. The Attorney General only receives and forwards requests to the DPP. This was confirmed by the Supreme Court in Republic v. Director of Public Prosecutions & 2 others.
Are extradition proceedings considered criminal in Kenya?+
Yes, the Supreme Court ruled that extradition proceedings are criminal in nature. This means the DPP, who has exclusive prosecutorial powers, must initiate and conduct them. The Attorney General cannot be involved in the process.
What is the 'Authority to Proceed' in extradition cases in Kenya?+
It is a document issued by the DPP to start extradition proceedings. The Supreme Court confirmed its validity, ruling that the DPP alone can issue it. The Attorney General lacks authority to do so.
What happened in the Republic v. Director of Public Prosecutions case in Kenya?+
The Supreme Court allowed the DPP's appeal, overturning the Court of Appeal. It held that extradition is criminal, so the DPP has exclusive power. The Court ordered the stalled extradition case to continue on a priority basis.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ingang’a & 6 others v James Finlay (Kenya) Limited[2023] KESC 22 (KLR)31 Mar 2023followed
Cite this brief
#Cite this brief
Caselaw, "Director of Public Prosecutions v Okemo & 4 others", Case Analysis (2021). Petition 14 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/13/eng@2021-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.