Extradition (Contiguous and Foreign Countries) Act

Section 1. Short title Section This Act may be cited as the Extradition (Contiguous and Foreign Countries) Act. [Act No. 65 of 1968 , s. 19.]

Section 2. Interpretation Section 2(1) In this Act, unless the context otherwise requires— "Central Authority" has the meaning assigned to it under section 2 of the Mutual Legal Assistance Act ( Cap. 75A ); "conviction" and "convicted" do not include or refer to a conviction which under the law of some other country is a conviction for contumacy, but the term "accused person" includes a person convicted of contumacy; "extradition crime" means a crime which, if committed within the jurisdiction of Kenya, would be one of the crimes described in the Schedule to this Act; "fugitive criminal" means any person accused or convicted of an extradition crime ("a crime which, if committed within the jurisdiction of Kenya, would be one of the crimes described in the Schedule to this Act;") committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime ("a crime which, if committed within the jurisdiction of Kenya, would be one of the crimes described in the Schedule to this Act;") committed within the jurisdiction of that co...

Section 3. Application of Part Section 3(1) Where an agreement has been made with any country other than a designated Commonwealth country within the meaning of the Extradition (Commonwealth Countries) Act ( Cap. 77 ), with respect to the surrender to that country of any fugitive criminal, the Cabinet Secretary may, by order published in the Gazette , declare that this Part of this Act shall apply in the case of that country subject to such conditions, exceptions and qualifications as may be specified in the order, and this Part shall apply accordingly. Section 3(2) An order made under this section shall recite or embody the terms of the agreement and shall not remain in force for any longer period than the agreement. Section 3(3) Every order made under this section shall be laid before the National Assembly. [Act No. 65 of 1968 , s. 19, Act No. 18 of 2018 , Sch.]

Section 4. Liability of fugitive criminals to surrender Section whether the crime in respect of which the surrender is sought was committed before or after the commencement of this Act or the application of this Part of this Act to that country; and

Section 5. Requisition for surrender Section 5(1) A requisition for the surrender of a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") of any country who is in or suspected of being in Kenya shall be made to the Cabinet Secretary by a diplomatic representative or consular officer of that country and, upon receipt of such requisition, the Cabinet Secretary may, by order under his hand, signify to a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") that a requisition has been made and require the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") to issue his warrant for the arrest and detention of the fugitive criminal ("any person accused or convicted of an extradition crime committed w...

Section 6. Issue ofwarrant Section 6(1)(a) on the receipt of the order of the Cabinet Secretary and on such evidence as would, in the opinion of the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") , justify the issue of the warrant if the crime had been committed or the criminal convicted in Kenya; or Section 6(1)(b) on such information or complaint and such evidence or after such proceedings as would, in the opinion of the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") , justify the issue of a warrant if the crime had been committed or the criminal convicted in Kenya. Section 6(2) A magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") issuing a warrant under this section without an order from the Cabinet Secretary shall forthwith send a report of the fact of the issue, together with the evidence and information or complaint or certified copies thereof, to the Cabinet Secretary, who may order the war...

Section 7. Hearing of case and evidence Section 7(1) When a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") is brought before a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") , the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall hear the case in the same manner and have the same jurisdiction and powers, as nearly as may be, as in a trial before a subordinate court. Section 7(2) The magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall receive any evidence which may be tendered to show that the case is one to which the relevant provisions of section 16 apply or that the crime of w...

Section 8. Committal or discharge of prisoner Section 8(1) In the case of a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") accused of an extradition crime ("a crime which, if committed within the jurisdiction of Kenya, would be one of the crimes described in the Schedule to this Act;") , if the foreign warrant authorizing the arrest of the criminal is duly authenticated, and such evidence is produced as, subject to the provisions of this Act, would according to the law of Kenya, justify the committal for trial of the prisoner if the crime of which he is accused was committed in Kenya, the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall commit him to prison, but otherwise shall order him to be discharged. Section 8(2) In the case of a fugitive criminal ("any person accus...

Section 9. Surrender offugitive criminal Section 9(1) Whenever a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") commits a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") to prison under this Part of this Act he shall inform the criminal that he will not be surrendered until after the expiration of fifteen days and that he has a right to apply for the issue of directions in the nature of habeas corpus . Section 9(2) Upon the expiration of the period of fifteen days, or, if directions in the nature of habeas corpus are issued, after the decision of the court upon the return to the directions, as the case may be, or after such further period as may be allowed in either case by the Cabinet Secretary, the Cabinet Secretary may by warrant under his hand order the fugitive criminal...

Section 10. Discharge offugitive criminal Section upon application made to him by or on behalf of the criminal; and

Section 10A. Simplified extradition Section 10A(1) A fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") being sought by a requesting State may consent to be extradited to that requesting State without conducting formal extradition proceedings. Section 10A(2) Where a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") consents to be extradited under subsection (1), that person shall be advised of his or her rights and the legal consequences of the simplified extradition procedure and may expressly renounce his or her entitlement to the rule of speciality. Section 10A(3)...

Section 11. Application of Part Section 11(1) Where the Cabinet Secretary is satisfied that reciprocal provision has been or will be made by or under the law of any contiguous country other than a designated Commonwealth country within the meaning of the Extradition (Commonwealth Countries) Act ( Cap. 77 ), for the backing of warrants issued in Kenya and their execution in that country and that it is appropriate to do so, he may, by order published in the Gazette , declare that this Part of this Act shall apply in the case of that country subject to such conditions, exceptions and qualifications as may be specified in the order, and this Part shall apply accordingly. Section 11(2) Every order made under this section shall be laid before the National Assembly. [Act No. 65 of 1968 , s. 19, Act No. 18 of 2018 , Sch.]

Section 12. Backing of warrants issued in another country Section 12(1) Where a warrant has been issued in a country to which this Part of this Act applies for the arrest of a person accused of an offence punishable by law in that country and he is or is suspected of being in or on the way to Kenya, a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") may, if satisfied that the warrant was issued by a person having lawful authority to issue it, endorse such warrant . Section 12(2) An endorsement of a warrant shall be signed by the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") and shall authorize all or any of the persons named in the endorsement and every police officer to execute the warrant by arresting the person named in it and bringing him before a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") . Section 12(3) A warrant endorsed under this section shall be sufficient authority to arrest, wit...

Section 13. Provisionalwarrant Section 13(1) Notwithstanding that a warrant for the arrest of any person issued in a country to which this Part of this Act applies may not yet have been endorsed in pursuance of this Part, a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") may issue a provisional warrant for the arrest of such person on such information and under such circumstances as would, in his opinion, justify the issue of a warrant if the offence of which that person is accused were an offence punishable by the law of Kenya and had been committed within his jurisdiction; and such warrant may be endorsed in the manner provided in the Criminal Procedure Code ( Cap. 75 ), and may be executed accordingly. Section 13(2)(a) no order may be made under section 14 for his return to the country in which the original warrant was issued unless the original warrant is produced and endorsed in accordance with this Part; and Section 13(2)(b) he shall be discharged unless the original warrant is produced and endorsed within such time as the magistrate ("a chief magistrate, a senior principal magist...

Section 14. Return of prisoner Section 14(1)(a) that the warrant is duly authenticated as directed by this Act and was issued by a person having lawful authority to issue the same; and Section 14(1)(b) by evidence on oath, that the prisoner is the person named or otherwise described in the warrant , order the prisoner to be returned to the country in which the original warrant was issued, and for that purpose to be delivered into the custody of the persons to whom the warrant is directed or any one or more of them and to be held in custody and conveyed into that country. Section 14(2) A person to whom the warrant is directed and the person so authorized may receive, hold in custody and convey into the jurisdiction of that country the prisoner mentioned in the warrant . Section 14(3) A magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall, so far as is requisite for the exercise of the powers of this section, have the same power, including the power to remand and admit to bail a prisoner, as he has in the case of a person arrested under a warrant issued by him. Section 14(4) In proceedin...

Section 15. Discharge of prisoner Section 15(1)(a) upon application by or on behalf of the prisoner; and Section 15(1)(b) upon proof that reasonable notice of the intention to make the application has been given to the person holding the warrant and to the Inspector-General of Police or the Officer Commanding the respective Police Division or Police Station; and Section 15(1)(c) unless sufficient cause is shown to the contrary, order the prisoner to be discharged out of custody. Section 15(2) Without prejudice to any application for directions in the nature of a writ of habeas corpus in respect of anything purporting to be done under this Part of this Act, any order or refusal to make an order of discharge under subsection (1) of this section may be the subject of an appeal to the High Court. Section 15(3) If, in any proceedings under this Part of this Act which are brought to his attention, the Cabinet Secretary is of opinion that the offence is one of a political character, he may order a person arrested under this Part to be discharged from custody. [Act No. 18 of 2018 , Sch.]

Section 16. Restriction on surrender or return Section 16(1)(a) if the offence in respect of which his surrender is required, or the offence specified in the warrant , as the case may be, is one of a political character or if it appears to a court or the Cabinet Secretary that the requisition for the surrender, or the application for endorsement of a warrant and the return of the person named therein, has in fact been made with a view to try or to punish him for an offence of a political character: or Section 16(1)(b) if the fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") or the person arrested is accused of some offence triable by a court in Kenya or is undergoing sentence under any conviction in Kenya, until after he has been discharged, whether by acquittal or on the expiration of his sentence or otherwise. Section 16(2)(a) unless provision is made by the law of the co...

Section 17. Evidence Section 17(1) Depositions or statements on oath or affirmation taken in the country concerned and copies of the original depositions or statements and official certificates of or judicial documents stating the fact of conviction may, if duly authenticated, be received in evidence in any proceedings under this Act. Section 17(2)(a) shall take judicial notice of any law of a country by which the surrender of a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") is required which makes provision for any such matter as is referred to in section 16 (2)(a), if an official copy of such law is produced and certified by the Cabinet Secretary responsible for foreign affairs or a diplomatic representative or consular officer of that country to be in force; Section 17(2)(b) may receive as prima facie evidence of any such agreement as is referred to in the said paragr...

Section 18. Authorization of warrants and depositions Section 18(1)(a) if the warrant purports to be signed by a judge, magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") or officer of the country where it was issued; or Section 18(1)(b) if the depositions or statements or the copies thereof purport to be certified under the hand of a judge, magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") or officer of the country where they were taken to be the original depositions or statements or to be true copies thereof, as the case may require; or Section 18(1)(c) in a case to which Part II of this Act applies, by being sealed with the official seal of the Cabinet Secretary for the time being responsible for legal affairs, or some other Cabinet Secretary of State, of the country concerned; or Section 18(1)(c)(i) in a case to which Part II of this Act applies, by being sealed with the official seal of the Cabinet Secretary for the time being responsible for legal affairs, or some other Cabinet Secretary of...

Section 19. Escape Section If a prisoner escapes, by breach of prison or otherwise, out of the custody of a person acting under a warrant issued or endorsed in pursuance of this Act or out of the custody of a person to whose custody he has been committed in accordance with this Act, he may be retaken in the same manner as a person accused of a crime against the law of Kenya may be retaken upon an escape.

Section 20. Search warrants Section Where a warrant for the arrest of a person accused of an offence has been endorsed in pursuance of Part III of this Act, the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall have the same power of issuing a warrant to search for any property alleged to be stolen or otherwise unlawfully taken or obtained by such person, or otherwise to be the subject of such offence, as that magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") would have if the property had been stolen or otherwise unlawfully taken or obtained, or the offence had been committed, wholly within the jurisdiction of such magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") .

Section 21. Rules Section 21(1) The Chief Justice may make rules of court for appeals to the High Court under this Act. Section 21(2) The Cabinet Secretary may prescribing forms for the purposes of this Act, and forms so prescribed or forms as near thereto as the circumstances permit may be used in all matters to which such forms refer.

Section 22. Declaration of application Section The Cabinet Secretary may from time to time, by order published in the Gazette , declare the countries to which Part II and Part III of this Act apply (including the countries to which Part II applies under section 27 of this Act and, subject to any later order providing for the discontinuance of such application, the declaration shall be conclusive as to the application of the relevant Part to countries to which it relates. [Act No. 9 of 1967 , Sch.]

Section 23. Discontinuance Section Whenever it appears to the Cabinet Secretary that an agreement with a country to which Part II of this Act applies is no longer in force (or in the case of a country to which Part II applies under section 27 (1)(a), that the law of that country no longer contains reciprocal provision), or that the law of a country to which Part III of this Act applies no longer makes reciprocal provision or that such provision has ceased to apply to Kenya or any part thereof, he may, by order published in the Gazette , discontinue the application of the appropriate Part to that country.

Section 24. Obtaining evidence in Kenya Section 24(1) The testimony of any witness may be obtained in relation to any criminal matter pending in any court or tribunal in any other country in like manner as it may be obtained in relation to any civil matter under any rules of court or any enactment for the time being in force in that part of Kenya in which the testimony is to be taken for the taking of evidence in relation to civil and commercial matters pending before the tribunals of other countries. Section 24(2) Nothing in this section shall apply in the case of any criminal matter of a political nature.

Section 25. Taking of evidence in Kenya for foreign criminal matters Section 25(1) Subject to section 24 (2), the Cabinet Secretary may, by order, require a magistrate to take evidence for the purpose of any criminal matter pending in any court or tribunal in any other country. Section 25(2) A magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") , upon the receipt of an order made under this section, shall take down in writing the evidence of every witness appearing before him for the purpose in like manner as if the witness appeared in a preliminary inquiry and shall certify at the foot of the deposition so taken that the evidence was taken before him, and shall transmit it to the Cabinet Secretary. Section 25(3) The evidence may be taken in the presence or absence of the person charged, if any, and the fact of the presence or absence shall be stated in the deposition. Section 25(4) Any person may, after payment or tender to him of a reasonable sum for his costs and expenses in this behalf, be compelled, for the purposes of this section, to attend and give evidence and answer questions and...

Section 26. Trial of criminal surrendered Section 26(1) Subject to subsection (2) of this section, where in pursuance of an agreement with another country any person accused or convicted of any crime described in the Schedule to this Act is surrendered by that country that person shall not, until he has been restored or had an opportunity of returning to that country, be triable or tried for any offence committed before his surrender to Kenya other than such of the crimes as may be proved by the facts on which the surrender is grounded. Section 26(2) Nothing in this section shall apply in relation to a person surrendered or returned to Kenya by a country to which Part III of this Act applies.

Section 27. Transitional Section 27(1)(a) a country to which Part I of the Fugitive Offenders Act, 1881 (No. 44 and 45 Vict., Cap. 69) (as in force in Kenya) applied immediately before the commencement of this Act; and Section 27(1)(b) a country to which the Fugitive Criminals Surrender Act ( Cap. 77 ) (Repealed) applied immediately before the commencement of this Act, Section 27(2)(a) notwithstanding that no agreement has been made with that country or that the terms of an agreement are not embodied in any order; and Section 27(2)(a)(i) notwithstanding that no agreement has been made with that country or that the terms of an agreement are not embodied in any order; and Section 27(2)(a)(ii) notwithstanding that no such provision or agreement as is referred to in section 16 (2)(a) of this Act is in force in or has been made with that country, and, unless provision is made by the Cabinet Secretary in an order under this section applying that paragraph to any such country, the surrender of a fugitive criminal to that country shall not be refused on the grounds set out in that paragraph; Section 27(2)(b) in the case of a country to which subsection (1)(b) of this section refers, as if...

Section 28. Repeals and saving Section 28(1) The Extradition Act ( Cap. 76 ) and the Fugitive Criminals Surrender Act ( Cap. 77 ) are hereby repealed. Section 28(2) The Fugitive Offenders Act, 1881 shall cease to apply to Kenya as part of the law thereof and section 23(3) of the Interpretation and General Provisions Act ( Cap. 2 ) shall apply in relation to this subsection as if that Act had been repealed. Section 28(3) Notwithstanding the repeal or disapplication of the laws set out in subsections (1) and (2) of this section, where, before the commencement of this Act, any request has been made or proceedings have been commenced for the surrender of a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") or the return of a prisoner under any of the said laws to a country to which the relevant Part of this Act applies, the same may be continued under corresponding provisions of...