LAWS OF KENYA

EXTRADITION (COMMONWEALTH COUNTRIES)ACT

CHAPTER 77

Revised Edition 2012 [1985]

Published by the National Council for Law Reporting
with the Authority of the Attorney-General
www.kenyalaw.org
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CHAPTER 77

EXTRADITION (COMMONWEALTH COUNTRIES) ACT

ARRANGEMENT OF SECTIONS
PART I – PRELIMINARY
Section
1. Short title.
2. Interpretation.
3. Designated countries.
4. Extradition offences.
PART II – RETURN OF FUGITIVES
5. Liability of fugitives to surrender, etc.
6. General restrictions on surrender.
7. Authority to proceed.
8. Arrest for purposes of committal.
9. Proceedings for committal.
10. Application for habeas corpus, etc.
11. Warrant of surrender.
12. Discharge where delay in returning.
13. Custody.
PART III – TREATMENT OF PERSONS RETURNED TO KENYA
14. Person returned not to be tried for other offence.
15. Restoration of person not convicted.
PART IV – SUPPLEMENTAL
16. Evidence.
17. Amendment of Schedule.
18. Regulations.
SCHEDULE –
DESCRIPTION OF EXTRADITION OFFENCES

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CHAPTER 77
EXTRADITION (COMMONWEALTH COUNTRIES) ACT
[Date of assent: 27th December, 1968.]
[Date of commencement: 30th December, 1968.]
An Act of Parliament to make provision for the surrender by Kenya to other
Commonwealth countries of persons accused or convicted of offences
in those countries, to regulate the treatment of persons accused or
convicted of offences in Kenya who are returned to Kenya from such
countries; and for purposes incidental thereto and connected therewith
[Act No. 65 of 1968, Act No. 18 of 1970, Act No. 13 of 1982,
Act No. 11 of 1983, Act 9 of 2009, Act No. 6 of 2010.]

PART I – PRELIMINARY
1. Short title
This Act may be cited as the Extradition (Commonwealth Countries) Act.
2. Interpretation
(1) In this Act, unless the context otherwise requires—
“application forhabeas corpus” means an application for the issue of
directions in the nature of habeas corpus under subsection (1) of section 389
of the Criminal Procedure Code (Cap. 75);
“authority to proceed” means a written authority issued under subsection
(1) of section 7;
“country” includes any state, territory or other part of the country
concerned;
“the Court” means the Resident Magistrate’s Court;
“designated Commonwealth country” means a country designated for
the purposes of this Act under section 3;
“extradition offence” has the meaning assigned thereto in section 4;
“fugitive” means any person who is, or is suspected of being, in or on his
way to Kenya and whose surrender is requested under this Act on the grounds
that he is accused of, or is unlawfully at large after conviction for, an extradition
offence committed within the jurisdiction of the requesting country;
“imprisonment” includes detention of any description by whatever name
called;
“overseas warrant” means a judicial or other document, issued under the
law of a requesting country, authorizing the arrest of a person accused or
convicted of an offence;
“provisional warrant” means a warrant of arrest issued under paragraph
(b) of subsection (1) of section 8 of this Act;
“race” includes tribe;

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“request” means a request made under subsection (1) of section 7 of this

Act by a designated Commonwealth country for the return of a fugitive, and
“requesting country” means a country making the request;
“surrender” means the surrender of a fugitive to a requesting country in
accordance with the provisions of this Act;
“warrant of arrest” means a warrant issued under subsection (1) of section
8 of this Act;
“warrant of surrender” means a warrant issued under subsection (1) of
section 11.
(2) For the purposes of this Act—
(a) a person convicted of an offence in his absence shall be treated as
a person accused of an offence;
(b) a person shall be deemed not to have been convicted of an offence
against the law of a requesting country where the conviction is, under
that law, a conviction for contumacy, but a person so convicted for
contumacy shall be deemed to be accused of an offence against that
law.
3. Designated countries
(1) The Attorney-General may, by order, designate for the purposes of this Act
any country that is, at the date of such order, within the Commonwealth.
(2) An order under subsection (1)—
(a) may be made subject to any specified limitations, exceptions,
conditions or modifications;
(b) may contain such transitional or other incidental or supplementary
provision as the Attorney-General considers expedient.
(3) For the purposes of an order made under this section any territory for the
external relations of which a designated Commonwealth country is responsible
may be treated as part of that country or, if the government of that country so
requests, as a separate country.
(4) An order made under this section shall be laid before the National Assembly
without unreasonable delay and, if a resolution is passed within twenty days on
which the National Assembly next sits after any such order is laid before it that the
order be annulled, it shall thenceforth be void, but without prejudice to the validity
of anything previously done thereunder, or to the making of a new order.
4. Extradition offences
(1) For the purposes of this Act, an offence is an extradition offence if—
(a) it is an offence against the law of a requesting country which, however
described in that law, falls within any of the descriptions contained
in the Schedule to this Act and is punishable under that law with
imprisonment for a term of twelve months or any greater punishment;
and

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(b) the act or omission constituting the offence, or the equivalent act or
omission, would constitute an offence against the law of Kenya if it
took place within Kenya or, in the case of an extra-territorial offence,
in corresponding circumstances outside Kenya.
(2) In determining for the purposes of this section whether an offence falls within
a description contained in the Schedule to this Act, any special intent or state of
mind or special circumstances of aggravating which may be necessary to constitute
that offence under the relevant law shall be disregarded.
(3) The descriptions contained in the Schedule to this Act include in each
case offences of attempting or conspiring to commit, of assisting, counselling or
procuring the commission of or being accessory before or after the fact to the
offence described, and of impeding the apprehension or prosecution of persons
guilty of those offences.
PART II – RETURN OF FUGITIVES
5. Liability of fugitives to surrender, etc.
Every fugitive is liable, subject to this Act and to any limitations, exceptions,
conditions or modifications to which the application of this Act in relation to the
requesting country is subject, to be arrested, detained, and surrendered in the
manner provided by this Act and is so liable whether the offence in respect of which
the surrender is sought is alleged to have been committed, or was committed,
before or after the commencement of this Act or the application of this Act to the
requesting country.
6. General restrictions on surrender
(1) A fugitive shall not be surrendered, or committed to or kept in custody for
the purposes of surrender, if it appears to the court of committal, or to the High
Court on an application for habeas corpus, or to the Attorney-General, that—
(a) the offence of which the fugitive is accused or was convicted is an
offence of a political character; or
(b) the request for his surrender (though purporting to be made on
account of an extradition offence) is in fact made for the purpose
of prosecuting or punishing him on account of his race, religion,
nationality or political opinions; or
(c) that he might, if surrendered, be prejudiced at his trial or punished,
detained or restricted in his personal liberty by reason of his race,
religion, nationality or political opinions.
(2) A fugitive accused of an offence shall not be surrendered, or committed to or
kept in custody for the purposes of surrender, if it appears to the court of committal,
or to the High Court on an application for habeas corpus, or to the Attorney-General,
that he would, if charged with that offence in Kenya, be entitled to be discharged
under any rule of law relating to previous acquittal or conviction.
(3) A fugitive shall not be surrendered, or committed to or kept in custody for
the purposes of surrender, unless provision is made by the law of the requesting
country, or by an arrangement made with that country, for securing that he will

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not, unless he has first been restored or had an opportunity of returning to Kenya,
be dealt with in that country for or in respect of any offence committed before his
surrender, other than—
(a) the offence in respect of which his surrender is requested; or
(b) any lesser offence proved by the facts proved before the Court of
committal; or
(c) any other extradition offence in respect of which the Attorney-General
may consent to his being so dealt with.
(4) An arrangement of the kind mentioned in subsection (3) may be an
arrangement made for the particular case or an arrangement of a more general
nature; and for the purposes of that subsection a certificate issued by or under
the authority of the Attorney-General confirming the existence of an arrangement
with any country and stating its terms shall be conclusive evidence of the matters
contained in the certificate.
7. Authority to proceed
(1) Subject to the provisions of this Act relating to provisional warrants, a
fugitive shall not be dealt with in any manner under this Act except in pursuance
of the written authority of the Attorney-General, issued in pursuance of a request
made to the Attorney-General by or on behalf of the government of the designated
Commonwealth country in which such person is accused or was convicted.
(2) There shall be furnished with any request—
(a) in the case of a fugitive accused of an extradition offence, an overseas
warrant issued in the requesting country;
(b) 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.
(3) On receiving a request, the Attorney-General may issue an authority to
proceed, unless it appears to him that a warrant of surrender in that case could not
lawfully be made, or would not in fact be made, under this Act.
8. Arrest for purposes of committal
(1) A warrant for the arrest of a fugitive may be issued by a magistrate—
(a) on receipt of an authority to proceed; or
(b) without an authority to proceed, upon information that the fugitive is
or is believed to be in or on his way to Kenya.
(2) A warrant of arrest may be issued upon such evidence as would, in the
opinion of the magistrate, authorize the issue of a warrant for the arrest of a person
accused of committing a corresponding offence or, as the case may be, of a person
alleged to be unlawfully at large after conviction of an offence, in Kenya.

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(3) Where the warrant of arrest issued in respect of a fugitive is a provisional

warrant—
(a) 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
(b) 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.
(4) 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 Kenya.
(5) A warrant of arrest may be executed in any place in Kenya by any person
to whom it is directed or by any police officer.
9. Proceedings for committal
(1) A person arrested in pursuance of a warrant of arrest shall (unless
previously discharged under subsection (3) of section 8) be brought as soon as
practicable before the Court.
(2) If a person is arrested in pursuance of this Act and brought before a
magistrate who has no power to exercise jurisdiction under this Act, that magistrate
shall have power to order that person to be brought before some magistrate having
such jurisdiction, and to remand or admit that person to bail, and effect shall be
given to any such order.
(3) For the purposes of proceedings under this section, the court shall have the
like jurisdiction and powers, as nearly as may be, as it has in a trial.
(4) Where a fugitive arrested in pursuance of a provisional warrant is in custody
and the court has not received an authority to proceed, it may fix a reasonable
period (of which it shall give notice to the Attorney-General) after which it will
discharge the fugitive from custody if it has not received an authority to proceed.
(5) Where the court has received an authority to proceed in respect of a fugitive
arrested, and it is satisfied, after hearing 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, and if further satisfied—
(a) where the fugitive is accused of the offence, that the evidence would
be sufficient to warrant his trial for that offence if it had been committed
in Kenya; or
(b) 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 this 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 custody.

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(6) Any property in the possession of a fugitive committed to custody under this
section at the time of his apprehension that may be material as evidence in proving
the offence for which his surrender is requested shall, if the court so directs, be
delivered up with him on his surrender.
[Act No. 13 of 1982, Second Sch.]

10. Application for habeas corpus, etc.

(1) 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 Attorney-General.
(2) A fugitive shall not be surrendered—
(a) in any case, until after the end of fifteen days beginning with the day
on which the order for his committal to custody was made;
(b) if an application for habeas corpus is made in his case, so long as
proceedings on that application are pending.
(3) On an application for habeas corpus, the High Court may, without prejudice
to any other jurisdiction vested in it, order the fugitive to be discharge from custody
if it appears to the High Court that—
(a) by reason of the trivial nature of the offence of which he is accused
or was convicted; or
(b) by reason of 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; or
(c) because the accusation against him is not made in good faith in the
interests of justice,
it would, having regard to all the circumstances, be unjust or oppressive to
surrender him.
(4) On an application for habeas corpus, the High Court may receive additional
evidence relevant to the exercise of its jurisdiction under section 6 or under
subsection (3).
11. Warrant of surrender
(1) Where a person is committed to await his surrender and is not discharged
by order of the High Court, the Attorney-General may by warrant order him to be
surrendered to the requesting country, unless—
(a) the surrender is prohibited, or prohibited for the time being, by any of
the provisions of this Act; or
(b) the Attorney-General decides under this section not to issue the
warrant in his case.
(2) A warrant of surrender shall not be issued in respect of a fugitive if he is
serving a sentence of imprisonment, or is charged with an offence, in Kenya—
(a) in the case of a fugitive serving such a sentence, until the sentence
has been served;

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(b) in the case of a fugitive charged with an offence, until after the charge
has been disposed of or withdrawn and, if it results in a sentence of
imprisonment (not being a suspended sentence), the sentence has
been served.
(3) The Attorney-General shall not issue a warrant of surrender if it appears to
him, on the grounds specified in section 10(3), that it would be unjust or oppressive
to surrender the fugitive concerned.
(4) The Attorney-General may decide not to issue a warrant of surrender if—
(a) 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;
(b) another country, besides the country in consequence of whose
request the fugitive was committed, has made a request for his
surrender, or has made a requisition for his surrender under Part II
of the Extradition (Contiguous and Foreign Countries) Act (Cap. 76),
or has applied for the endorsement of a warrant or the issue of a
provisional warrant under Part III of that Act, and it appears to the
Attorney-General, having regard to all the circumstances of the case
and in particular—
(i) the relative seriousness of the offences in question; and
(ii) the date on which each such request, requisition or application
was made; and
(iii) the nationality or citizenship of the fugitive and his ordinary
residence,
that preference should be given to the other request, requisition or application.
(5) 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, in lieu
of ordering that he be surrendered, by warrant, order that he be held in custody
at the place where he is for the time being, or at any other place to which the
Attorney-General considers that he can be removed without danger to his life or
prejudice to his health, until such time as he can without such danger or prejudice
be surrendered.
(6) Notice of the issue of a warrant under this section shall forthwith be given
to the fugitive who is to be surrendered or held in custody under it and the warrant
may be executed according to its tenor.
12. Discharge where delay in returning
(1) If a fugitive committed to await his surrender is in custody in Kenya under
this Act after the expiration—
(a) in any case, of two months beginning with the first day on which,
having regard to subsection (2) of section 10, he could have been
surrendered; or
(b) where a warrant of surrender has been issued, of one month
beginning with the day of the issue,
he may, after giving at least one week’s notice to the Attorney-General, apply to
the High Court for his discharge.

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(2) Where the High Court hears an application under subsection (1), and is
satisfied that due notice has 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.
13. Custody
(1) A fugitive who is remanded or committed to custody under section 9 shall
be committed to the like institution as a person charged with an offence before the
Court.
(2) If any person who is in custody by virtue any warrant issued under this Act
escapes out of custody, he may be retaken in any part of Kenya in like manner as
a person escaping from custody under a warrant for his arrest issued in respect
of an offence committed therein.
(3) A warrant of surrender shall be sufficient authority for all persons to whom
it is directed and all police officers to receive the fugitive, keep him in custody and
convey him into the jurisdiction of the requesting country.
PART III – TREATMENT OF PERSONS RETURNED TO KENYA
14. Person returned not to be tried for other offence
A person who is accused or convicted of an offence under the Law of Kenya,
and who is returned to Kenya from a designated Commonwealth country under a
law of that country corresponding with this Act, shall not be dealt with in Kenya for or
in respect of any offence committed before he was returned to Kenya, other than—
(a) the offence in respect of which he was returned; or
(b) any lesser offence proved by the facts proved for the purposes of
securing his return; or
(c) any other offence in respect of which the government of the country
from which he was returned may consent to his being dealt with,
during the period beginning with the day of his arrival in Kenya on his return and
ending forty-five days after the first subsequent day on which he has the opportunity
to leave Kenya.
15. Restoration of person not convicted
Where a person accused of an offence under the law of Kenya is returned
to Kenya from a designated Commonwealth country under a law of that country
corresponding to this Act, and either—
(a) proceedings against him for the offence for which he was returned are
not begun within the period of six months beginning with the day of
his arrival in Kenya on his return; or
(b) on his trial for that offence he is acquitted or is discharged under
section 35 of the Penal Code (Cap. 63),
the Attorney-General may, if he thinks fit, on the request of the person, arrange for
him to be sent back free of charge and with as little delay as possible to that country.

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PART IV – SUPPLEMENTAL
16. Evidence
(1) In any proceedings under this Act, including proceedings on an application
for habeas corpus—
(a) a document, duly authenticated, that purports to be an overseas
warrant shall be admissible in evidence;
(b) a document, duly authenticated, which purports to set out evidence
given on oath in a designated Commonwealth country shall be
admissible as evidence of the matters stated in it;
(c) a document, duly authenticated, 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 shall be
admissible in evidence;
(d) a document, duly authenticated, which certifies that a person was
convicted on a specified date of an offence under the law of a
designated Common-wealth country shall be admissible as evidence
of the fact and date of the conviction.
(2) A document shall be deemed to be duly authenticated for the purposes of
subsection (1)—
(a) in the case of a document purporting to set out evidence given in a
designated Commonwealth country, if the document purports to be
certified by a judge or magistrate or officer in or of that country to be
the original document containing or recording that evidence or a true
copy of such a document;
(b) in the case of 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, if the document
purports to be certified as foresaid to have been, or to be a true copy
of a document which has been, so received;
(c) in the case of a document which certifies that a person was convicted
on a specified date of an offence under the law of a designated
Commonwealth country, if the document purports to be certified as
aforesaid,
and in any such case the document is authenticated either by the oath of a witness
or by the official seal of a Minister, secretary or other officer administering a
department of the Government of the country concerned.
(3) For the purposes of this section “oath” includes affirmation and nothing in
this section shall prejudice the admission in evidence of any document which is
admissible in evidence apart from this section.
17. Amendment of Schedule
The Attorney-General may, by order, amend the Schedule by adding to it the
description of any other offence, or by deleting any description from it.

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18. Regulations
The Attorney-General may make regulations prescribing the form of any warrant
or order to be used under this Act.

SCHEDULE
[Section 4.]
[Act No. 18 of 1970, s. 11, Act No. 11 of 1983, Sch., Act No. 9 of 2009, Act No. 6 of 2010, s. 24.]

DESCRIPTION OF EXTRADITION OFFENCES

1. Murder of any degree.
2. Manslaughter or culpable homicide.
3. An offence against the law relating to abortion.
4. Maliciously or wilfully wounding or inflicting grievous bodily harm.
5. Assault occasioning actual bodily harm.
6. Rape.
7. Unlawful sexual intercourse with a female.
8. Indecent assault.
9. Procuring, or trafficking in women or young persons for immoral purposes.
10. Bigamy.
11. Kidnapping, abduction or false imprisonment, or dealing in slaves.
12. Stealing, abandoning, exposing or unlawfully detaining a child.
13. Bribery.
14. Perjury or subornation of perjury or conspiring to defeat the course of justice.
15. Arson or fire-raising.
16. An offence concerning counterfeit currency.
17. An offence against the law relating to forgery.
18. Stealing, embezzlement, fraudulent conversion, fraudulent false accounting,
obtaining property or credit by false pretences, receiving stolen property or any
other offence in respect of property involving fraud.
19. Burglary, housebreaking or any similar offence.
20. Robbery.

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SCHEDULE-continued
21. Blackmail or extortion by means of threats or by abuse of authority.
22. An offence against bankruptcy law or company law.
23. Malicious or wilful damage to property.
24. Acts done with the intention of endangering vehicles, vessels or aircraft.
25. An offence against the law relating to dangerous drugs or narcotics.
26. Piracy.
27. Revolt against the master of a ship or the commander of an aircraft.
28. Contravention of import or export prohibitions relating to precious stones, gold
and other precious metals.
29. Hijacking and offences committed in relation thereto.
30. Offences relating to aircraft set out in section 5 of the Protection of Aircraft
Act (Cap. 68).
31. Any offence that constitutes an offence of money laundering under the
Proceeds of Crime and Anti-Money Laundering Act, 2009.
32. Organised Criminal Group Offences.

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