Chrysanthus Barnabus Okemo &another; v Attorney General & 3 others [2018] KECA 737 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that only the Attorney General, not the DPP, can authorise extradition, invalidating the proceedings against Okemo and Gichuru.
What this practically means
#Executive summary
#Key legal issues
#Whether the DPP had power to issue the 'Authority to Proceed'
The High Court erred; the AG has the sole responsibility to issue the 'Authority to Proceed' and extradition proceedings instituted by the DPP without such authority are a nullity.
Extradition falls wholly within the realm of international law and is conducted by the National Executive, of which the AG is a Cabinet-level member. The DPP, though exercising executive functions, is an independent professional prosecutor, not a political appointee, and it would be anomalous for him to conduct foreign relations. The Extradition Act, revised after the 2010 Constitution, retains the AG as competent authority, and no express provision confers extradition on the DPP.
Whether extradition proceedings are criminal or sui generis
Extradition proceedings are sui generis, not criminal proceedings, and therefore outside the DPP's power to institute and undertake criminal proceedings under Article 157(6).
Extradition is founded on treaties, is administrative in character, involves no determination of guilt or innocence, and the magistrate's role is confined to determining eligibility for surrender, with the ultimate surrender decision vested in the AG. The definition of 'prosecution' in the ODPP Act cannot alone confer extradition power on the DPP.
Whether the High Court correctly declined to determine dual criminality, delay, abuse of process and the Jersey legal system
The High Court justifiably applied constitutional avoidance; those issues must be determined through the mechanisms of the Extradition Act at the appropriate stages.
The primary facts on which the petitions were based were contested and unascertained; the extradition magistrate has jurisdiction over dual criminality and evidential sufficiency, the High Court on habeas corpus over unjust or oppressive surrender (including delay and bad faith), and the AG's surrender decision is subject to judicial review. Courts should not intervene at an intermediate stage absent exceptional circumstances.
Whether the three issues conclusively determined by the High Court (fugitive label, witnesses, adverse publicity) were correctly decided
The Court of Appeal agreed with the High Court's findings on all three issues.
'Fugitive' is a legal term in the Extradition Act not intended to be derogatory or to displace the presumption of innocence; discrimination under Article 27 could not be invoked where criminal liability is attributable to the individual; media publicity per se does not violate the right to fair hearing, and adverse publicity in Kenya could not prejudice a trial in Jersey.
Legal principles established
#- Extradition proceedings are not criminal proceedings but sui generis proceedings; consequently, the power to institute and undertake criminal proceedings under Article 157(6) of the Constitution does not extend to extradition, and the Attorney General alone has the responsibility to issue the 'Authority to Proceed' under section 7(1) of the Extradition (Commonwealth Countries) Act.
- Extradition proceedings instituted without a written 'Authority to Proceed' issued by the Attorney General are a nullity, including any act done by the magistrate in pursuance of such proceedings.
- Section 7(1) of the Extradition Act assigning the 'Authority to Proceed' to the Attorney General is not inconsistent with Article 157(6) of the Constitution.
- Where the Extradition Act provides adequate mechanisms for resolving questions such as dual criminality, delay, abuse of process and challenges to the requesting state's legal system, courts should apply constitutional avoidance and decline to determine those questions at an intermediate stage of the extradition process.
Court orders
#- 1.The appeal succeeds in part and is allowed on the ground that the 'Authority to Proceed' dated 6th July 2011 issued by the DPP is a nullity together with the committal proceedings in Misc. Application No. 9 of 2011 instituted pursuant to such authority and any act done by the magistrate in pursuance of the proceedings
- 2.The order of the High Court dated 18th December, 2015 declaring the committal proceedings to be valid and the order of the extradition magistrate dated 5th February, 2013 requiring the committal proceedings to commence are set aside and in lieu thereof the committal proceedings are declared invalid and struck out
- 3.The other substantive grounds of appeal are dismissed
- 4.There shall be no orders of costs in this appeal
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Application No. 111 of 2013 (consolidated with Constitutional Petitions Nos. 320 of 2011 and 321 of 2011)
- Jurisdiction invoked
- First appeal/supervisory jurisdiction context - appeal from High Court determination under Article 165(6) and (7) of the Constitution; Court of Appeal jurisdiction under Rule 31 of the Court of Appeal Rules to confirm, reverse, vary or remit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chrysanthus Barnabus Okemo &another; v Attorney General & 3 others [2018] KECA 737 (KLR)", Case Analysis (2018). Civil Appeal No. 5 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/737/eng@2018-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.