A demand short levied duty almost 4 years after the initial assessment and payment of the duty was unreasonable and a violation of the right to fair administrative action.
Summary Significance: The petition revolved around the power of the Kenya Revenue Authority to levy a further demand for taxes after a post clearance audit. The circumstances of the case were that KRA wrongfully assed duty at 35% for importation of rice as opposed to 75%. KRA realised their error after an post clearance audit had been conducted, four years after the initial assessment, demand and payment of duty. KRA further levied a tax payment of short levied duty amounting to Kshs. 378,016,680/- as income due from the respondent for rice imported. The Supreme Court held that KRA acted unfairly in demanding for the alleged short levied duty almost 4 years after the initial assessment and payment of the duty so assessed were irrational and did not accord the respondent its right to fair administrative action.

Kenya Revenue Authority v Export Trading Company Limited (Petition 20 of 2020) [2022] KESC 31 (KLR) (Civ) (17 June 2022) (Judgment)
Supreme Court of Kenya
PM Mwilu, DCJ and V-P; MK Ibrahim, SC Wanjala, NS Ndungu and I Lenaola, SCJJ
Reported by John Ribia
Download the Decision

Tax Law – Kenya Revenue Authority – duty - short levied duty – power to demand for short levied duty after an audit – where KRA had demanded for short levied duty and the same had been paid but later after an audit KRA made a further demand for short levied duty - whether the actions of the Kenya Revenue Authority to demand short levied duty almost 4 years after the initial assessment and payment of the duty was unreasonable - East African Community Customs Management Act, 2004 section 135(1)
Constitutional Law – fundamental rights and freedoms – right to fair administrative action – power of the Kenya Revenue Authority to demand for short levied duty - where KRA had demanded for short levied duty and the same had been paid but later after an audit KRA made a further demand for short levied duty - whether the actions of the Kenya Revenue Authority to demand short levied duty almost 4 years after the initial assessment and payment of the duty was a violation of the respondent’s right to fair administrative action – Constitution of Kenya, 2010 article 47
Administrative Law – legitimate expectation – power of the Kenya Revenue Authority to demand for short levied duty - where KRA had demanded for short levied duty and the same had been paid but later after an audit KRA made a further demand for short levied duty - whether the actions of the Kenya Revenue Authority to demand short levied duty almost 4 years after the initial assessment and payment of the duty created a legitimate expectation in favour of the respondent that KRA were not to levy the said taxes - East African Community Customs Management Act, 2004 (EACCMA) section 135(1)
Civil Practice and Procedure – costs of the suit – principle that costs followed the event – application for costs against a parastatals/governmental institution – what was the purpose of levying costs against a party in a judicial action – what were the exceptions to the principle that costs followed the suit – under what circumstances would costs of the suit be levied against parastatals/governmental institutions.
Words and Phrases – legitimate expectation – definition of - a person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he had no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by authority, including an implied representation, or from consistent past practice - Halsbury’s Laws of England, 4th Edition, Vol. 1 (1), page 151, paragraph 81.
Words and Phrases – public interest – definition of - the general welfare of the public that warranted recognition and protection, something in which the public as a whole had stakes, especially that justified governmental regulation. In litigating on matters of general public importance, an understanding of what amounted to public or public interest was necessary. Public was thus defined: concerning all members of the community; relating to or concerning people as a whole; or all members of a community; of the state; relating to or involving government and governmental agencies; rather than private corporations or industry; belonging to the community as a whole, and administered through its representatives in government, e.g. public land - The Black’s Law Dictionary, 9th Edition.

Brief Facts:
In the years 2008 and 2009, the respondent imported various consignment of rice from Burma, Vietnam and Thailand. The appellant, the Kenya Revenue Authority, via its Tradex Simba System, an automated tax collection and import clearance system, levied a duty of 35% on the imported rice, which duty, the respondent paid in full.
Subsequently, in 2013, about four years after the initial tax was assessed, demanded and paid, KRA conducted a post clearance audit. The audit revealed that the applicable import duty rate on the consignment was 75% and not 35%. KRA attributed the error to human and system error in under-collecting import duty at the rate of 35%. Subsequently KRA demanded payment of short levied duty amounting to Kshs. 378,016,680/- as income due from the respondent for rice imported.
Aggrieved the respondent filed a constitutional petition challenging the appellant’s second demand for tax where the High Court held that the demand for taxes by the appellant was unreasonable and a breach of the respondent’s right to fair administrative action. Aggrieved by the decision of the High Court, the appellant filed an appeal at the Court of Appeal. The Court of Appeal upheld the decision of the High Court by finding that the appellant’s actions were irrational, arbitrary and capricious and held that the court’s discretion was well exercised.
Further aggrieved, the appellant (KRA) filed the instant appeal in which they sought to overturn the decisions of the Court of Appeal and the High Court on grounds that the courts misapplied the law in finding that it’s actions were irrational and a breach to fair administrative action. They sought for the Supreme Court to interpret the law as strictly constructed and to hold that legitimate expectation could not operate contrary to statutory provisions and that it was wrong for the Court of Appeal to fail to appreciate that any post clearance audit would necessarily have follow up actions.
Issues:
  1. Whether the actions of the Kenya Revenue Authority to demand short levied duty almost 4 years after the initial assessment and payment of the duty was a violation of the respondent’s right to fair administrative action.
  2. What was the definition and applicability of the principle of legitimate expectation?
  3. Whether the actions of the Kenya Revenue Authority to demand short levied duty almost 4 years after the initial assessment and payment of the duty created a legitimate expectation in favour of the respondent that KRA were not to levy the said taxes.
  4. Whether the actions of the Kenya Revenue Authority to demand short levied duty almost 4 years after the initial assessment and payment of the duty was unreasonable.
  5. What was the purpose of levying costs against a party in a judicial action?
  6. What were the exceptions to the principle that costs followed the suit?
  7. Under what circumstances would costs of the suit be levied against parastatals/governmental institutions?
Relevant Provisions of the Law
East African Community Customs Management Act, 2004
Section 135(1)
135. Short levy or erroneous refund
(1) Where any duty has been short levied or erroneously refunded, then the person who should have paid the amount short levied or to whom the refund has erroneously been made shall, on demand by the proper officer, pay the amount short levied or repay the amount erroneously refunded, as the case may be; and any such amount may be recovered as if it were duty to which the goods in relation to which the amount was short levied or erroneously refunded, as the case may be, were liable.

Held:
  1. Section 135(1) of the East African Community Customs Management Act, 2004 (EACCMA) granted the appellant power to conduct post clearance audit and demand the short levied duty. The appellant acted unfairly in demanding for the alleged short levied duty almost 4 years after the initial assessment and payment of the duty so assessed were irrational and did not accord the respondent its right to fair administrative action.
  2. A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he had no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by authority, including an implied representation, or from consistent past practice. A legitimate expectation arose where a person responsible for taking a decision had induced in someone a reasonable expectation that he would receive or retain a benefit of advantage.
  3. Legitimate expectation may take many forms. It may take the form of an expectation to succeed in a request placed before the decision maker or it may take the objective form that a party may legitimately expect that, before a decision that may be prejudicial was taken, one was to be afforded a hearing.
  4. The question of whether a legitimate expectation arose was more than a factual question. It was not merely confined to whether an expectation existed in the mind of an aggrieved party, but whether viewed objectively, such expectation was in a legal sense, legitimate.
  5. Legitimate expectation would arise when a body, by representation or by past practice, had aroused an expectation that was within its power to fulfill. For an expectation to be legitimate therefore, it had to be founded upon a promise or practice by a public authority that was expected to fulfill the expectation. We then went on to find the emerging principles on legitimate expectation to be that;
    1. there had to be an express, clear and unambiguous promise given by a public authority;
    2. the expectation itself had to be reasonable;
    3. the representation had to be one which it was competent and lawful for the decision-maker to make; and
    4. there cannot be a legitimate expectation against clear provisions of the law or the Constitution.
  6. A legitimate expectation arose since the appellant failed to collect duty at the applicable rate, having applied the rate of 35% in their Tradex Simba System. It was also incomprehensible how the appellant, four years after the assessment of duty, demanded for payment of extra duty when it sat on its laurels having itself assessed the duty payable. This act was unreasonable for the reason that, first, it was totally irrational and unreasonable to require the respondent to carry the burden of being aware of any mistakes made by the Tradex Simba System, a system run by the appellant. It was also incomprehensible how the respondent should be made to suffer the consequences of the actions of the appellant of failing to input the correct rate in a system it had full control over. That line of reasoning was misguided. It missed the point that judicial review is not concerned with the merits of the case but the decision making process.
  7. The appellant gave indication that the respondent had already paid all taxes due to it. From the record, the respondent had also been categorical that it never mis-declared the country of origin of the rice. Even after declaring that the rice was not imported from Pakistan, the system went on to apply the rate of 35% after which, the respondent paid the relevant duty.
  8. The actions of the appellant of failing to respond to the respondent’s letter seeking a clarification on the demanded duty amounted to an expectation that the respondent had paid the correct duty. The expectation was not unreasonable. There was absolute reason given to the respondent to expect that there would not be a further claim for the duty they paid almost four years to the date of importation of the rice.
  9. It was unacceptable that the respondent adopted the view that it did not matter whether there was a mis-declaration, under-declaration or a system error and that the appellant was entitled to demand for any levies discovered following the carrying out of a post-audit at any given time. Anyone who decided anything affecting the right or interest of another person if the person, body or authority against whom it was claimed exercised a quasi-judicial function of function that was likely to infringe on their right to fair administrative action, was entitled to remedies for judicial review.
  10. Ordinarily costs followed the event. However, costs should not be used to penalize the losing party, but to compensate the successful party for the trouble taken in prosecuting or defending a suit.
  11. An award on costs must be judiciously exercised by invocation of the discretion of the court on a case by case basis and it was the practice that, where suits involved genuine public interest, courts were slow to award costs as against the losing party. Condemning an unsuccessful party to pay costs in genuine public interest litigation can act as a deterrent factor preventing parties from instituting proceedings that benefit the public generally for fear of being condemned to pay costs. The general rule on costs was therefore not immutable and although deeply entrenched, certain specific circumstances and considerations may necessitate non application of the principle.
  12. Public bodies and organizations such as parastatals, which ordinarily existed to serve a country’s government, by participating in proceedings, acted purely in a regulatory capacity. Such government organizations acting within their mandate needed not be condemned to pay costs where such an entity had brought or defended proceedings while acting purely in that regulatory capacity. An award of costs against such entities should only be made where such an entity had acted unreasonably or in bad faith.
  13. Public interest litigation exists to serve the purpose of protecting rights of the public at large. Therefore, public bodies instituting or defending proceedings were performing their public function which fell under public interest.
  14. The case was one that raised constitutional issues which were public in nature and while the appellant may have acted unreasonably, no bad faith had been exhibited and in the totality of matters, discretion would tilt in its favour. In the circumstances and in the public interest, each party was to bear its costs.
Appeal dismissed, decision of the Court of Appeal upheld. Each party was to bear its costs.



Kenya Law
Case Updates Issue 016/22-23
Case Summaries
ENVIRONMENTAL LAW

Power to institute extradition proceedings is vested in the Office of the Director of Public Prosecutions.

Summary Significance:   The question before the Supreme Court was whether extradition Proceedings in Kenya were criminal, civil, or sui generis in nature and between the Office of the Attorney General (AG) and the Office of the Director of Public Prosecutions (ODPP) body had authority to issue an Authority to proceed to institute extradition proceedings. The majority arrived at the conclusion that the function to institute and prosecute extradition proceedings lay with the ODPP but differed on the nature of extradition proceedings.  SN Ndungu, SCJJ arrived at the conclusion that extradition proceedings bore elements of criminal law and administrative law while the rest of the majority held that extradition proceedings were criminal in nature. In a dissent, W Ouko, SCJJ held that extradition proceedings were sui generis in nature and that the function institute and litigate extradition proceedings were vested in the AG.

Director of Public Prosecution v Okemo & 4 others (Petition 14 of 2020) [2022] KESC 33 (KLR) (29 July 2022) (Reasons) (with dissent - W Ouko, SCJ)
Supreme Court of Kenya
MK Koome, CJ & P; MK Ibrahim, SC Wanjala, NS Ndungu and W Ouko, SCJJ
Reported by John Ribia and James Nginya

Download the Decision

Constitutional Law – constitutional offices – functions of the Office of the Attorney General – functions of the Office of the Director of Public Prosecutions  - functions Office of the Attorney General vis-à-vis the Office of the Director of Public Prosecutions – extradition - what were the functions of the Attorney General vis-à-vis  the Director of Public Prosecutions as it related to extradition – which body had authority to issue an Authority to proceed to institute extradition proceedings - whether the prosecutorial powers vested in the Director of Public Prosecutions included the initiation and conduct of Extradition Proceedings - Constitution of Kenya (2010) articles 156  and 157, sixth schedule clause 31; Constitution of Kenya (Repealed) sections 26; Office of the Attorney General Act (No. 49 of 2012), section 5(1); Criminal Procedure Code, section 137
Extradition – extradition proceedings – nature of extradition proceedings – civil nature vis-à-vis criminal nature vis-à-vis sui generis proceedings - whether extradition Proceedings in Kenya were criminal, civil, or sui generis in nature -whether an extradition hearing was a plenary proceeding that sought to establish the guilt or innocence of the accused fugitive.
Statues – interpretation of statues – interpretation of the preamble of the Extradition (Commonwealth Countries) Act – nature of extradition proceedings - whether the words, “accused” and “convicted” as used in the preamble of the Extradition Act implied that extradition proceedings were criminal in nature.
Extradition – extradition documents –  authority to proceed – body with mandate to issue the  authority to proceed – what was the effect of issuing an authority to proceed – Extradition (Commonwealth Countries) Act (CAP. 77),  section 7(1); Organization of Government of the Republic of Kenya, Executive Order No. 2/2013 -
Extradition – extradition proceedings – applicable law – applicable process - what was the applicable law in extradition proceedings – what was the applicable process in extradition proceedings in Kenya - Constitution of Kenya (2010) article 2 (6), sixth schedule clause 7 (2); Extradition (Commonwealth Countries) Act (CAP. 77),  sections 6, 7, 9 (3) and (5), 10 (3) and 11; Mutual Legal Assistance Act (No. 36 of 2011) section 51; London Scheme for Extradition within the Commonwealth, 2002; Vienna Convention on Law of Treaties, article 26
Extradition – extradition proceedings – extraditing court – decision of an extraditing court – appealabitlity of such a decision -  which court was responsible to determine extradition proceedings in Kenya – whether the determination of an extraditing court in Kenya was subject to a direct appeal - Extradition (Commonwealth Countries) Act (CAP. 77),  sections 12(1) (a) and (b), 17(1); Extradition (Contiguous and Foreign Countries) Act (CAP. 76), section 21(1)
Extradition – extradition proceedings – circumstances under which extradition may be denied - under what circumstances would a fugitive not be eligible for extradition to a foreign state -  Extradition (Commonwealth Countries) Act (CAP. 77), sections 11(3)(4) and (5)
Law of Evidence – standard of proof – standard of proof in extradition proceedings - what was the standard of proof to be applied in extradition cases in Kenya - London Scheme for Extradition within the Commonwealth, 2002, section 5 (4).
Law of Evidence – rules of evidence – rules of evidence in extradition proceedings - whether the rules of evidence in criminal trials applied to extradition proceedings - whether evidence presented by a fugitive in rebuttal to an extradition request were for the purpose of proving an accused innocence - Extradition (Commonwealth Countries) Act (CAP. 77), sections 9(5) and 16
Words and Phrases – extradition – definition of - the official surrender of an alleged criminal by one state or nation to another having jurisdiction over the crime charged; the return of a fugitive from justice, regardless of consent, by authorities where the fugitive is found - Black’s Law Dictionary, 9th Edition.
Words and Phrases – extradition – definition of - the formal surrender by one country to another, based on reciprocal arrangements partly judicial and partly administrative, of an individual accused or convicted of a serious offence committed outside the territory of the extraditing country and within the jurisdiction of the requesting country which being competent by its own law to try and punish him, demands the fugitive’s surrender -  Halsbury’s Laws of England, 4th Edition Vol. 18 at page 74 paragraph 201
Words and Phrases – criminal proceeding – definition - A proceeding instituted to determine a person’s guilt or innocence or to set a convicted person’s punishment; a criminal hearing or trial - Black’s Law Dictionary 9th Edition at Pg. 1324

Brief facts
On May 26, 2011, the Attorney General of Jersey made a request for the extradition of the Appellants. The Office of the Attorney General (AG) (Kenya) handed over the Department of Public Prosecutions (then a department in the office of the AG) which later became the Office of the Director of Public Prosecutions (ODPP). The DPP issued an authority to proceed to the Chief Magistrate and filed extradition proceedings.
Aggrieved, the 1st and 2nd via judicial review at the High Court challenged the authority of the ODPP to issue an authority to proceed to institute extradition proceedings. Their position was that Extradition (Commonwealth Countries) Act made no mention of the ODPP, they contended that the relevant authority with the power to institute extradition proceedings was the AG. The High Court held that extradition proceedings were of a criminal in character. The High Court further held that extradition proceedings were properly initiated by the ODPP.
Dissatisfied with the High Court’s decision, the 1st and 2nd respondents lodged their respective appeals in the Court of Appeal. The Court of Appeal overturned the High Court’s decision and held that extradition proceedings fell wholly within the ambit of international law and were sui generis in nature; that it was the AG as opposed to the DPP who was empowered to issue the authority to proceed; and therefore, the extradition proceedings in issue were a nullity.
Aggrieved the ODPP filed the instant appeal in which they contended that the Court of Appeal erred in finding that extradition proceedings were sui generis in nature and were to be instituted by the Ag. They sought for the Supreme Court to declare that the function institute and litigate extradition proceedings were vested in the ODPP.

Issues:

  1. What was the applicable law and applicable process in extradition proceedings in Kenya?
  2. Which office between the Attorney General (AG) and the Office of the Director of Public Prosecution (ODPP) had the mandate to process an extradition request?
  3. Whether extradition Proceedings in Kenya were criminal, civil, or sui generis in nature.
  4. Whether the words, “accused” and “convicted” as used in the preamble of the Extradition Act implied that extradition proceedings were criminal in nature.
  5. Whether an extradition hearing was a plenary proceeding that sought to establish the guilt or innocence of the accused fugitive.
  6. Whether the fact that the AG had at the time received and forwarded the extradition requests of the 1st and 2nd respondents to the Department of Public Prosecutions which later became the ODPP meant that the role to issue the authority to proceed with extradition vested in the ODPP.
  7. What was the standard of proof to be applied in extradition cases in Kenya?
  8. Whether the rules of evidence in criminal trials applied to extradition proceedings?
  9. Whether evidence presented by a fugitive in rebuttal to an extradition request were for the purpose of proving an accused innocence.
  10. Under what circumstances would a fugitive not be eligible for extradition to  a foreign state?
  11. Whether the determination of an extraditing court in Kenya was subject to a direct appeal.
  12. What was the nature of prosecutorial powers vested in the Director of Public Prosecutions?
  13. Whether the prosecutorial powers vested in the Director of Public Prosecutions included the initiation and conduct of Extradition Proceedings.
  14. Whether the Director of Public Prosecutions had authority to issue an authority to proceed to institute extradition proceedings. Read More..

Relevant Provisions of the Law
Extradition (Commonwealth Countries) Act (CAP. 77)
Section 7
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.

Office of the Director of Public Prosecutions Act, No. 2 of 2013.
Section 2
2.    Interpretation
"prosecution" means a prosecution under the jurisdiction of the Director, a proceeding respecting any offence, the prosecution or prospective prosecution which is under the jurisdiction of the Director and related to such a prosecution or proceeding and includes extradition proceedings and any appeal, revision or other proceeding related thereto.

Held:

Judgement of the Majority (Per MK Koome, CJ & P; MK Ibrahim and SC Wanjala)

  1. The appeal fell within the parameters of the Supreme Court’s appellate jurisdiction to determine appeals from the Court of Appeal on questions of interpretation and application of the Constitution as delineated under article 163 (4) (a) of the Constitution. The Supreme Court had jurisdiction to entertain not just concluded cases but also interlocutory matters where final orders vesting or divesting rights or obligations had been pronounced.
  2. The issue who between the Office of the Attorney General (AG) and the Office of the Director of Public Prosecution (ODPP) has the power to issue an authority to proceed with extradition proceedings, revolved around the interpretation and application of articles 156 and 157 of the Constitution which not only established the Offices of the AG and DPP but also conferred the said offices with their respective constitutional mandate. Further, it was the interpretation and application of the said articles by the superior courts below that formed the basis of the appeal.
  3. The general definition of extradition included the delivery, handing over or the surrender of an accused or a convicted person to a State where he/she was accused of, or had been convicted of, a crime, by a State in whose territory the person in question happened to be. Extradition was the formal surrender by one country to another, based on reciprocal arrangements partly judicial and partly administrative, of an individual accused or convicted of a serious offence committed outside the territory of the extraditing country and within the jurisdiction of the requesting country which being competent by its own law to try and punish him, demanded the fugitive’s surrender.
  4. The above definition was in tandem with the  (Commonwealth Countries) Act (the Act) in which section 2 the defined term as the surrender of a fugitive to a requesting country in accordance with the provisions of the Act;  while a fugitive was defined as any person who was, or was suspected of being, in or on his way to Kenya and whose surrender was requested under the Act on the grounds that he was accused of, or was unlawfully at large after conviction for, an extradition offence committed within the jurisdiction of the requesting country.
  5. The Act was replete with terms which fell within the sphere of criminal law such as an accused, convicted, remand, bail and committal orders. Section 4 of the Act defined an extradition offence as an offence against the law of a requesting country which, however described in that law, fell within any of the descriptions contained in the schedule to the Act and was punishable under that law with imprisonment for a term of twelve months or any greater punishment; and 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.
  6. The committal proceedings under section 9 of the Extradition Act wherein the subordinate court was seized with the extradition proceedings and which kicked in after the issuance of an authority to proceed, the court was called upon to exercise some aspect of criminal jurisdiction.
  7. The effect of section 9(5) of the Act was that the subordinate court was required to determine whether the offence for which an accused or convicted person was sought to be surrendered or extradited, amounted to an extradition offence; whether there was sufficient evidence that would warrant the trial of the accused person for the said offence had it been committed in Kenya; or whether the convicted person had indeed been convicted in the requesting State and appeared to be at large; and whether to surrender the accused or convicted person. That might have been what informed the Legislature in enacting section 9(3) to recognize that the subordinate court in conducting committal proceedings could exercise similar jurisdiction and powers as in criminal trial.
  8. The Court of Appeal found that extradition proceedings are not criminal proceedings since there was no determination of culpability of the person subject to the said proceedings. It defined a criminal proceeding as a proceeding instituted to determine a person’s guilt or innocence or to set a convicted person’s punishment; a criminal hearing or trial. While the above definition of criminal proceedings in the strict sense was true, it did not derogate that extradition proceedings were akin to a preliminary hearing in a criminal matter. The subordinate court, was charged with the duty of determining whether the evidence presented before it justified the extradition/surrender of an accused or convicted person to face trial or punishment in the requesting State.
  9. Extradition proceedings were preliminary in nature and were analogous to the preliminary hearing in a criminal case. Extradition proceedings in the requested State had decidedly criminal consequences, although they were not criminal proceedings in the technical sense.
  10. Although extradition proceedings in Kenya had some aspects of administrative procedure that involved the Executive arm of government as regards receipt of request, the processing of the request largely fell within the realm of criminal law.
  11. Section 26(3) of the repealed Constitution bestowed the AG with the power to institute and undertake criminal proceedings. The AG was empowered under section 26(5) to delegate the power to institute and undertake criminal proceedings as prescribed under 26(3)(a) to officers’ subordinate to him acting under his instructions or guidance. It was on the basis of the said delegation that the AG exercised his powers in criminal matters through the then Department of Public Prosecutions which was under the OAG.
  12. Following the promulgation of the Constitution, 2010 the Department of Public Prosecution which became the ODPP was separated from the OAG with both offices being distinct and independent of each other.
  13. Extradition proceedings in Kenya were criminal in nature. They fell within the DPP’s mandate. Likewise, it was the DPP as opposed to the AG who could initiate and conduct extradition proceedings.
  14. Per section 7(1) and (3) of the Extradition Act, extradition proceedings were initiated through an authority to proceed. The Court of Appeal was wrong to fault the High Court for invoking section 7(1) of the sixth schedule to the Constitution in order to bring section 7(1) of the Extradition Act into conformity with the Constitution. The Court of Appeal misconstrued the import of section 7 (1) of the sixth schedule to the Constitution that provided that all law in force immediately before the effective date continued in force and was to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.
  15. The Extradition Act was in existence prior to the promulgation of the Constitution, 2010; and that initiation and conduct of criminal matters by virtue of article 157(6) of the Constitution was conferred upon the DPP and not the AG. It was necessary for purposes of bringing section 7(1) of the Act in conformity with the Constitution to construe the provision as prescribing that it was the DPP who could issue an authority to proceed thereunder.
  16. The fact that the Extradition Act had been amended as late as the year 2012 without any alteration to section 7(1) by itself could not warrant interpretation of the said provision in manner that was contrary to the Constitution. That was due to the supremacy of the Constitution.
  17. The Supreme Court was unable to see how holding that it was the DPP who could issue an authority to proceed would render the Extradition Act unworkable or inoperative on account of the other functions conferred therein to the AG as insinuated by the Court of Appeal. Extradition had elements of international relations between States; the AG retained the executive authority to receive requests for extradition and was required to transmit the same to the DPP for the necessary action.
  18. The definition of prosecution under the Office of the Director of Public Prosecutions Act was retained through drafting error, without express statutory power could not confer power on the ODPP to perform extradition proceedings. The position taken by the Court of Appeal was informed by ODPP Bill No. 69 of 2012 which initially under clause 33 provided that all extradition proceedings for all intents and purpose would be deemed to be criminal proceedings. It further provided that it was the function of the ODPP to take steps to secure the extradition of any person required to answer to a charge or an offence, or to serve a sentence imposed, in Kenya or in any other requesting state in accordance with the law. However, the Bill was amended by the Committee of the whole House on 3rd January, 2013 by deletion of the said clause amongst others and which amendment was approved and passed by Parliament culminating in the ODPP Act.
  19. The objective of a court in interpreting legislation was to give effect so far as the language therein permited to the intention of the legislator. Notwithstanding the deletion of clause 33 of the ODPP Bill, the Court of Appeal was wrong in holding that the definition of prosecution under section 2 of the ODPP Act to the extent of including extradition proceedings was a drafting error despite the unambiguous words employed thereunder. Under the presumption against tautology in the interpretation of statutes, every word in a statute was presumed to make sense and to have a specific role to play in advancing the legislative purpose.
  20. Based on the provisions of article 157(6)  of the Constitution as well as the ODPP Act, the DPP was bestowed with the power to prosecute any criminal matter save for matters within the sphere of a court martial and the legislation envisaged to be enacted under article 157 (12) of the Constitution. The breadth of the prosecutorial powers included extradition proceedings. The authority to proceed issued in regard to the extradition proceedings against the 1st and 2nd respondents on July 6, 2011 was valid.

    Per SN Ndungu, SCJ; Concurring Opinion

  21. Extradition proceedings were quasi-criminal having elements of both criminal and administrative law. Extradition was the official surrender of an alleged criminal by one state or nation to another having jurisdiction over the crime charged; the return of a fugitive from justice, regardless of consent, by authorities where the fugitive was found. Extradition was the act of surrendering a person accused of committing a crime to another country having jurisdiction over the crime for trial. To determine whether extradition proceedings were civil, criminal, or sui generis in nature it is important to interrogate the extradition process in Kenya.
  22. According to Commonwealth Scheme for International Cooperation in Criminal Matters, (as adopted in 1966 and amended in 2002) and to which Kenya was a Member State party, outlined the mode of international cooperation in criminal matters between member countries that involve a range of formal and informal actions. Many such actions were governed by national legislation and bilateral or multilateral treaties and involved formal diplomatic and/or judicial functions. Others, such as informal law enforcement cooperation, could not be subject to specific legislative frameworks but were governed by policy and practice, often on the basis of reciprocity or as a prelude to formal cooperation.
  23. The Preamble of the Extradition Act made the function of the Extradition Act to regulate the surrender process of persons accused or convicted of offences in the requesting country and vice versa. The purpose was not to determine the culpability of the person accused of committing a crime, but to, interrogate any evidence tendered in support of the request for the surrender, and to determine whether the evidence was sufficient to warrant his trial for that offence, if it had been committed in Kenya.
  24. The proceedings before the Magistrate were not exclusively criminal in nature because those proceedings did not subject the 1st and 2nd respondents to a trial for a criminal offence in Kenya. The Magistrate’s role was only confined to the interrogation of evidence to ascertain whether they ought to be surrendered to the jurisdiction of the requesting country to face trial for offences as charged before that foreign court. It was before that court, in the requesting country, that extradited persons could be charged with criminal offences, convicted and punished if found culpable.
  25. Pursuant to Section 7 (1) of the Extradition Act, the extradition process began with a request from the requesting country to the Attorney General. Consequently, upon receipt of the request for extradition and if the Attorney General was satisfied that the request should be honoured, it would issue authority to proceed.
  26. On receipt of the authority to proceed a magistrate could issue a warrant of arrest to the fugitive. According to Section 8 of the Extradition Act, such warrant could 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.
  27. A person arrested pursuant to a warrant of arrest was to be brought to court as soon as practicable.
  28. Under section 11 of the Extradition Act, it was the Attorney General who reserved the right to issue the warrants of surrender and that demonstrated that the extradition process involved elements of both criminal proceedings, that was the judicial phase before a criminal court, and administrative proceedings which involved the attention and action by the Attorney General.
  29. The extradition request was made and acted upon pursuant to section 7 of the Extradition Act, the Mutual Legal Assistance Act, 2011, the London Scheme for Extradition Within the Commonwealth, and the Revised Scheme Relating to Mutual Legal Assistance in Criminal Matters within the Commonwealth. The extradition process was commenced based on laws and policies that were based on international agreements that did not fully fall under the purview of domestic criminal law.
  30. The criminal aspect of the judicial phase of extradition begans with the forwarding by the Attorney General of the authority to proceed, to the Director of Public Prosecution, for commencement of committal proceedings.
  31. Extradition proceedings were affected by international considerations including bilateral and multilateral agreements with States to extradite persons considered to have committed extradition offences. Those international agreements consisted of essential conditions in the extradition process. The international agreements constituted the civil elements of extradition.
  32. An extradition proceeding unlike a criminal proceeding, was founded on the concepts of reciprocity, comity, and respect for differences in other jurisdictions. The judicial phase was not a full-fledged trial, nor was it a mere formality, the requesting State must present its case in court. The Attorney General and the Director of Public Prosecution had to play their distinctive roles to ensure that extradition proceedings were carried out in accordance with the law. The extradition process was a quasi-judicial process having both elements of criminal law and administrative law.

Per W. Ouko, SCJJ - Dissenting Opinion

  1. The extradition request from the Attorney- General of Jersey demonstrated how the international community derived substantial benefit from a borderless global world, and how such a world had to deal with the negative impact of globalisation on international crime. Because of recent developments in world politics, business, technology, and elaborate international travel networks, criminal networks had taken advantage and effectively utilised those opportunities to escape and frustrate law enforcement investigations or arrest.
  2. It was easy for crimes like drug trafficking, human trafficking, money laundering, terrorism and cybercrimes to be committed within one State and the effect felt in another or other States across the borders of the state where the offence was committed, hence the need for effective international and transnational criminal justice.
  3. There was no existing right to extradite a fugitive; a sovereign State was not under any compulsion under international law to surrender a fugitive to another sovereign State. The right to do so had to derive as an obligation, either from an existing bilateral or multilateral treaty or on the basis of reciprocity and common understanding in any form between the countries concerned.
  4. The extradition process was governed by international and domestic law. It could also be regulated by general schemes such as the Commonwealth Scheme for the Rendition of Fugitive Offenders of 1990 (the London Scheme for Extradition/ the London Scheme). The Extradition Act (the Act) was enacted pursuant to the London Scheme for Extradition.
  5. The Act is intended, inter alia, to deal with persons accused or convicted of offences in the requesting countries. The London Scheme allowed each country within the Commonwealth to designate a central authority, whose responsibility was to make, receive and transmit requests for assistance and execute or arrange for the execution of such requests. Extradition proceedings and procedures would depend on the domestic legislation of each State. Some States had adopted purely administrative procedure, judicial or mixed procedures. Others had treated extradition as criminal proceedings and in some they were treated as sui generis.
  6. The nature and character of extradition proceedings remained unsettled despite its significance and centrality in international relations. Extradition hearings were multifariously understood from the legislative and jurisprudential divide among the nations of the world, with no uniform procedural and organisational system that was acceptable to all States. When borrowing jurisprudence from other jurisdictions, that fact had to be borne in mind. Some principles, were however common to most municipal laws dealing with extradition.
  7. Because of the disparity, the United Nations Revised Manual on the Model Treaty on Extradition and on the Model Treaty on Mutual Assistance in Criminal Matters, made pursuant to the United Nations Convention against Transnational Organized Crime at article 5 restated the proper channel. A request for extradition was to be made in writing. The request, supporting documents and subsequent communications was to be transmitted through the diplomatic channel, directly between the ministries of justice or any other authorities designated by the parties.
  8. Each member State had the freedom to designate the appropriate ministry or agency to be responsible for receiving and transmitting requests; the authority designated for this function needed not but could be responsible for the execution or creation of the requests. The commentary notes that in many States, the designated channel was the Ministry of Justice, court or even the office of the Attorney-General or equivalent, but that was a matter to be decided by each State.
  9. The proceedings before the magistrate court were in the form of an enquiry, with a view to surrender the fugitive to the requesting foreign State. By section 17(1) of their Extradition Act, the Attorney-General can delegate to any person including any public prosecutor the power to appear at any extradition enquiry held under the Act. It is on the basis of this authority that the DPP appears in extradition proceedings before South African courts. The role of the DPP in extradition proceedings are circumscribed; to present in evidence at the enquiry, any deposition, statement on oath or affirmation taken, or any record of any conviction or any warrant issued in a foreign State, or any copy or sworn translation thereof.
  10. Whether extradition was criminal or sui generis proceedings will depend on the construction of the laws of the requested country. Treaties may provide for the extradition of criminal fugitives between States concerned, but it was for municipal law that will determine whether the fugitive was to be surrendered in accordance with the extradition treaty.
  11. The key actor throughout the Act was the AG, mentioned 25 times. There was no reference whatsoever to the DPP. That could be explained by the symbiotic history of the two offices. Before the ODPP was delinked from the AG’s office in 2011, it was the unit assigned by delegation of the AG’s prosecutorial powers. Under section 26 of the repealed Constitution the AG was  the principal legal adviser to the Government of Kenya, with the power to institute and undertake criminal proceedings; take over and continue any criminal proceedings that had been instituted or undertaken by another person or authority; and to discontinue at any stage before judgment, any such criminal proceedings instituted or undertaken by himself or another person or authority.
  12. The powers of the AG could be exercised by himself in person or by officers subordinate to him acting in accordance with his general or special instructions. Officers subordinate to him were the Solicitor-General, the Deputy Public Prosecutor, the Assistant Deputy Public Prosecutor and all State Counsel. In addition, the AG, by the provisions of section 85 of the Criminal Procedure Code, could appoint public prosecutors for Kenya or for any specified area thereof, and either generally for any specified case or class of cases. He could also appoint any advocate or person employed in the public service, not being a police officer below the rank of Assistant Inspector of Police, to be a public prosecutor for the purposes of any cases. All public prosecutors were subject to the express directions of the AG.
  13. Section 7 was headed, “authority to proceed”. Extradition proceedings were commenced only upon the issuance of authority to proceed. If they were criminal proceedings then it had to follow from the constitutional interpretation of article 157, that the office with the exclusive authority and power to institute and undertake extradition proceedings should be that of the DPP. Whether or not the proceedings were criminal in character would as a consequence depend on the nature of the hearing.
  14. Extradition hearings were related to criminal matters, yet apart from them. The proceedings were not in fact criminal. If they were, then why emphasize its closeness to a trial in the subordinate court. The phrase was restricted to the provisions of section 9 only. Section 9 dealt with matters such as presenting a person arrested before the court as soon as practicable; transferred of the proceedings by a magistrate who had no power to exercise jurisdiction under the Act to one who had jurisdiction; remanding or admitting an arrested person to bail; after being satisfied that the offence to which the authority to proceed relates was an extradition offence, and that the evidence presented by the requesting State would be sufficient to warrant his trial for that offence if it had been committed in Kenya, the court would commit the person arrested to custody to await his surrender, or discharge him if the court was not so satisfied. It was in respect only of the above matters that the court was expected to exercise the like jurisdiction and powers, as nearly as may be, as it would in a trial.
  15. The person in extradition proceedings and in respect of whom extradition was sought had not been charged with an offence under any penal laws of Kenya; there was no complaint, or trial in the criminal procedure sense. Extradition proceedings were summary in character while criminal proceedings involved a full-blown trial, with witnesses and exhibits. The Criminal Procedure Code was a statute that provided for the procedure to be followed in criminal cases. It recognized that trials could be for offences under the Penal Code and under other laws; and that offences under the Penal Code would be inquired into, tried and otherwise dealt with according to the Code; and that offences under other laws would be tried by the court mentioned in those laws. Apart from the single reference to the word “extradited” in section 29 in respect of instances where a police officer could arrest without warrant on suspicion of having committed an extraditable offence under the Extradition (Contiguous and Foreign Countries) Act or the Extradition (Commonwealth Countries) Act, the Criminal Procedure Code did not provide for the procedure of initiating and conducting extradition proceedings.
  16. The rules of criminal procedure were, in a sense, apart from those of extradition. The elaborate extradition-specific procedure contained in part 11 of the Extradition Act were the applicable rules. The existence of a separate body of extradition-specific legislative and procedure apart from strict rules of criminal procedure was significant in proving the designation of extradition proceedings as sui generis. The hearing under the Extradition Act did not take the form envisaged in the Criminal Procedure Code. Part VI was specific to trials before the Magistrate’s Court where the process starts with the making of a complaint under section 89; the proceedings did not entail the determination of a criminal charge and no charges are framed like in section 137 of the Criminal Procedure Code; instead, the basis of the proceedings was an authority to proceed; the fugitive in extradition proceedings was not called upon to plead guilty or not guilty like in a criminal trial; extradition proceedings do not take the form of a prosecution case and defence case as extradition hearings did not lead to or follow a criminal prosecution.
  17. The beyond any reasonable doubt standard remained the foundation of due process in criminal cases in Kenya. That, however was not the standard expected in extradition cases. Though the Extradition Act was silent on the standard of proof, section 5 (4) of the London Scheme for Extradition provides that where a warrant had been endorsed the competent judicial authority could commit the person to prison to await extradition if such evidence was produced as established a prima facie case that the person committed the offence. That was the standard generally adopted in most of extradition cases
  18. The role of the extraditing court was to determine whether there was sufficient evidence (prima facie) to warrant the return of the fugitive to the requesting country. To arrive at its decision, the court was expected to satisfy itself that there was an overseas warrant issued by the requesting country in the case of a fugitive accused of an extradition offence; or to be satisfied that there was a valid certificate of conviction and sentence in the requesting country of a fugitive unlawfully at large after being convicted of an extradition offence in the requesting country. The court had to equally be satisfied that the person named in the request was the same individual who was before it; and that the acts contained in the request constituted an extraditable offence in terms of section 4 and fell within the description in the schedule to the Act.
  19. An extradition hearing was not a plenary proceeding that sought to establish the guilt or innocence of the accused fugitive, and because of the wide latitude that was given to the subordinate court with regard to the production and admissibility of evidence. The rules of evidence in criminal trials did not apply, as the court was permitted to admit evidence in the form of affidavits, depositions or other pertinent documents, subject only to a requirement of authentication. The requesting country needed not produce witnesses to prove the case for which the fugitive would stand trial, but should witnesses be required they can only testify in regard to matters that would assist the court to determine whether or not to remand the fugitive pending extradition but not as to his guilt or innocence.
  20. According to section 16 of the
    Extradition Act the authentication of any document for purposes of evidence in extradition proceedings was 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. It was the authenticated documents that formed part of the evidence anticipated in extradition proceedings.
  21. The fugitive equally had a right to present evidence in rebuttal of the evidence presented against him by, for instance, demonstrating that he was not the actual person sought by the requesting country, or that he served the sentence in question. What both sides, the fugitive and the State, could not do, however, was to present inculpatory or exculpatory evidence since such evidence would have no bearing on the issue before the extraditing court, which was only concerned with the surrender to another country of a person accused or convicted of any offence in that country. Evidence tending to inculpate or exculpate the fugitive would have the effect of transforming purely extradition proceedings into a trial on the merits, as to the culpability or innocence of the fugitive which remained the domain of the requesting country. Extradition proceedings were not to be converted into a dress rehearsal trial.
  22. Where the court had received an authority to proceed in respect of a fugitive arrested, and it was satisfied, after hearing any evidence tendered in support of the request for the surrender, that the offence to which the authority to proceed relates was an extradition offence, and if it was further satisfied that the evidence would be sufficient to warrant his trial for that offence if it had been committed in Kenya; or where the fugitive was alleged to have escaped after his conviction, that he had indeed been so convicted and escaped before sentence, and after receiving evidence on behalf of the fugitive, the court under section 9(5) of the Extradition Act would commit the fugitive to custody to await his surrender, but if the court was not so satisfied, or if the committal was prohibited, the court would discharge him from custody.
  23. Though the Extradition Act did not specifically provide how the evidence envisaged in sections 9(5) and 16 was to be presented, it could not be presented like evidence in a criminal trial to justify the participation of the DPP. The AG was by article 156 of the Constitution the principal legal adviser to the Government. That position allowed him to perform any functions conferred on him by an Act of Parliament; to represent the national government in court or in any other legal proceedings to which the national government was a party, other than criminal proceedings; with the leave of the court, to appear as a friend of the court in any civil proceedings to which the Government was not a party; and to promote, protect and uphold the rule of law and defend the public interest. The AG could also perform such other functions as could be assigned by the President.
  24. In addition, section 5(1) of the Office of the Attorney-General Act delineates the AG’s functions as advising the Government on all matters relating to the Constitution, international law, human rights, consumer protection and legal aid and negotiating, drafting, vetting and interpreting local and international documents, agreements and treaties for and on behalf of the Government and its agencies. Bearing in mind that extradition proceedings were a product of international agreements between states which governed international relations, such proceedings fell within the scope of the national executive authority. International extradition was both a legal and political phenomenon, involving criminal law and political considerations.
  25. The President as head of the Executive branch of Government represented the interest of the people of Kenya in the global arena, as mandated in Under article 132 of the Constitution the President was to present inculpatory or exculpatory evidence since such evidence would have no bearing on the issue before the extraditing court, President was required to submit a report to the National Assembly on the progress made in fulfilling the international obligations of the Republic.
  26. The AG besides being the principal legal adviser to the Government, was a member of the Cabinet by dint of article 152(1) of the Constitution. As the Government’s principal legal adviser, the AG’s other functions included representing the Government in court in civil and other proceedings, except criminal proceedings. In the former capacity the AG was responsible for presentation to the court, on behalf of the Executive branch of Government, of the authority to proceed, and all the evidence the foreign country was relying on in the extradition proceedings.
  27. Given the nature of extradition proceedings, the evidence envisaged was in the form of authenticated affidavits, depositions or other relevant documents. The process was neither civil nor criminal, at the end of which it was the ultimate responsibility and complete discretion of the AG pursuant to section 11 of the Act, to issue a warrant which was an order directing the fugitive to be surrendered to the requesting country. In discharging that mandate, the AG could take into account factors such as competing requests from different countries, humanitarian considerations, or public policy with respect to Kenya’s international relations. It was the Executive (read the AG) that ultimately and independently decided whether to deliver the fugitive to the requesting government.
  28. That decision was not made until all judicial proceedings were completed. It demonstrated the AG’s broad discretion to deny extradition based upon the Executive's view of the facts and interpretation of the treaty. It was apparent from the Act that the AG generally conducted a de novo examination of the request and court proceedings; that he was not bound by the judicial record; and that he could consider other factors before making the final decision.
  29. Under section 11(3) the AG could not issue a warrant of surrender if it appeared to him that it would be unjust or oppressive to surrender the fugitive concerned. He could also decide not to issue a warrant of surrender if the fugitive was accused or convicted of an extradition offence not punishable with death in Kenya, and could be or had been sentenced to death for that offence in the requesting country; or if another country, besides the country in consequence of whose request the fugitive was committed, had also made a request for his surrender under the Extradition Act or under the Extradition (Contiguous and Foreign Countries) Act. The AG was to have regard to all the circumstances of the case and in particular  the relative seriousness of the offences in question, the date on which each such request, requisition or application was made, and the nationality or citizenship of the fugitive and his ordinary residence.
  30. Where the AG was 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 surrendering him, order that he be held in custody at a place until such time as he could, without such danger or prejudice be surrendered. A fugitive would not be surrendered if the AG was of the opinion that the request was politically motivated.
  31. At the conclusion of extradition proceedings, no judgment on the guilt or innocence of the fugitive was entered. Instead, the court could either commit the fugitive to custody to await his surrender, or discharge him from custody. The decision of the extraditing court was final and was not subject to direct appeal to the High Court as is the case in criminal proceedings. That was in contrast with the Extradition (Contiguous and Foreign Countries) Act which under section 21(1) explicitly declared that the Chief Justice could make rules of court for appeals to the High Court under the Act. Although there was authority for stating that the requesting country could, if aggrieved, file its request afresh before a different court. That course was questionable.
  32. A Magistrate's decision in extradition could ultimately terminate the proceedings with no chance for appeal or review. Similarly, the accused fugitive appeared to be precluded from taking a direct appeal, if dissatisfied with the extraditing magistrate’s decision. But he could seek collateral relief under section 10 by applying to the High Court for habeas corpus. The only other instance where the High Court would intervene was where under section 12 of the Act, the High Court could discharge a fugitive who had been committed to await his surrender but was not so surrendered within 2 months, or quash the warrant in a case where a warrant of surrender had been issued, and no action taken within 1 month.
  33. The obligation to issue authority to proceed was placed on the AG, as the designated channel so was the duty to present to the extraditing court the evidence in the form of affidavits and other depositions. It was the AG who was responsible for the designation of commonwealth countries subject to the Act.
  34. There was no justification to place reliance on section 7(1) of the sixth schedule to the Constitution, because it was never the case that the Constitution had assigned the responsibility in matters of extradition to the DPP which responsibilities were vested previously to the AG.
  35. Under the article 157 Constitution, the DPP was an independent office holder. The DPP did not require the consent of any person or authority to institute criminal proceedings and further, in the exercise of his or her powers or functions, he did not do so under the direction or control of any person or authority. If the DPP’s arguments were to be upheld and considering the overarching functions of the AG under the Act, the former would be taking instructions from him, contrary to the Constitution.
  36. The process was far from a criminal trial. Under normal circumstances the finality of judicial decisions could not be changed by executive fiat. The extraditing court could find a fugitive extraditable but the ultimate decision to extradite him lay in the hands of the executive. Contrary to the view held by the High Court in support of the position that the proceedings were criminal, extradition hearings did not determine a criminal charge and the words accused and convicted in the preamble were only in reference to proceedings in the requesting state and not extradition proceedings before the extraditing court. They were designed to facilitate a criminal prosecution or the imposition of a sentence following a criminal conviction in a third country.
  37. The authority to proceed issued by the DPP was irregular. Section 7 of the Extradition Act was expressed in clear terms that extradition process commences, was conducted before the court and finally determined by the AG, with no conflict of interest whatsoever. The extraditing court and the High Court had their respective special powers under the Act separate from those exercised by the AG. The High Court could review the ultimate decision of the AG. The fact that the AG had at the time forwarded the request in question to the Department of Public Prosecutions which later became the ODPP did not and could not vest in the ODPP powers expressly donated to the AG. That could only happen through legislative action of amendment.
  38. Attempts to formally relocate extradition functions to the DPP from the AG did not yield that desire. The published ODDP Bill contained a part on cooperation with other law enforcement agencies under which clauses 33 and 34 provided that the clearest intention of Parliament in so far as the office responsible for extradition matters were concerned. By stating in clause 33(1) that all extradition proceedings that may be instituted under the ODPP Act, once passed or any other law in force before it or enacted after it were to be deemed to be criminal proceedings, was a confirmation that extradition had not always been treated as criminal proceedings.
  39. Both clauses 33 and 34 in their entirety were deleted from the Bill through amendment at the Committee of the whole House stage and the amendment approved by the whole House and the Bill enacted into law. Parliament though aware of the creation by the Constitution of the ODPP and its mandate in all criminal matters was satisfied with and deliberately retained the status quo in the AG’s chambers.
  40. The Extradition Act had been subjected to three amendments in 2010, 2012 and 2017, each time retaining section 7 intact and without assigning the role of issuing authority to proceed under that section to the DPP. If indeed Parliament had been desirous of relocating those functions to the DPP, nothing would have been easier than to expressly do so in all those amendments subsequent to the creation of the ODPP.
  41. From the language of the Extradition Act, the subsequent amendments to the Act and the enactment of the ODPP Act, there was no intention to re- distribute functions between the DPP and the AG in so far as extradition process was concerned.
  42. The object of interpretation of a statute was to determine the intention of the legislature or the parties. That intention had be determined by reference to the precise words used, their context, and, where identifiable, their aim and purpose. The object of the court in interpreting legislation was to give effect, so far as the language permitted, to the intention of the legislature. That intention could be discovered by adopting a purposive approach in the construction of the law, which would include examination of the records of Parliament, the Hansards.
  43. The intention of the court in setting out the debate in Parliament during the enactment of the ODPP Act and the three subsequent amendments to the Extradition Act, was to interrogate and understand the legislative intent. The legislative intent was to retain the entire extradition process in the AG’s domain, in the Executive arm of Government.
  44. Under the Extradition (Contiguous and Foreign Countries) Act, it was the Minister that had the authority to proceed with a requisition for surrender. It was the Minister and not the DPP who, by order under his hand, signified to a magistrate that a requisition has been made and required the Magistrate to issue the warrant for the arrest and detention of the fugitive criminal.
  45. The Mutual Legal Assistance Act, 2011 scope was limited to requests for legal assistance from any requesting state or international entity to which Kenya was obligated on the basis of a legal assistance agreement and to regulate the rendering of legal assistance to any requesting state, unless otherwise regulated by agreement. There were two main bodies established under the Act. Section 5 created the central authority. The office of the Attorney- General was designated as the central authority, with far-ranging functions. Section 6(2) defined legal assistance to mean mutual legal assistance in criminal matters. The second body was the competent authority defined by section 2 to mean the Attorney-General of the Republic of Kenya, any criminal investigation agency established by law, or any other person designated as such by the Attorney-General by notice in the Gazette.
  46. A request for legal assistance from Kenya could only be made by the Competent Authority. But the request may be initiated by any law enforcement agency, or prosecution or judicial authority. Apart from that role, which was limited to initiating a request with the ultimate decision to make the request remaining with the Competent Authority, the DPP had no other role.
  47. The Mutual Legal Assistance Act, 2011 was not concerned with issues of arrest, detention or extradition, but with mutual legal assistance to be given and received by Kenya in investigations, prosecutions and judicial proceedings in relation to criminal matters. Under the International Crimes Act requests for assistance are transmitted to the Attorney General or the Minister responsible for foreign affairs.
  48. Other than the definition of the word prosecution to include extradition proceedings, the word extradition or phrase extradition proceedings was not used anywhere else in the statute. The legislature was presumed to act intentionally and purposely. The missing link could only be explained by the history of law-making as set out earlier, where clauses 33 and 34 of the ODPP Bill were deleted. The definition which appeared to have been retained  by omission, in the statute could not per se convert extradition proceedings to criminal prosecution proceedings, and place it within the sphere of the DPP’s functions.
  49. Whilst extradition hearings resembled criminal proceedings they were apart from them. They were accurately described as sui generis because they were unlike any other type of judicial proceeding. They were neither accusatorial nor civil law inquisitorial, nor even an amalgam of both. They did not have the characteristics of a criminal trial. They were also clearly not orthodox civil proceedings. There could not be any justification for the involvement of the DPP whose docket was purely prosecution of crimes within Kenya. Yet extradition was concerned with whether or not the person whose extradition was sought may be extradited in accordance with the provisions of the extradition treaty, international law and municipal law. It was not a criminal proceeding. Even if the potential extraditee was a criminal fugitive, an extradition proceeding was not by its nature and character criminal, for it was not punishment for a crime, even though such punishment may follow extradition. Its object was to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.
  50. The authority to proceed issued on July 6, 2011 by the DPP was irregular. The DPP had no such powers or even to institute and process extradition proceedings under the Extradition (Commonwealth Countries) Act. The dissenting court would have dismissed the appeal and affirmed the decision of the Court of Appeal.

Appeal allowed. The authority to proceed issued by the Director of Public Prosecutions on July 6, 2011 was valid.
CRIMINAL LAW

Approvals issued by the County and the National Environment Management Authority to develop land adjacent to airports were pegged on the condition that one should obtain a development permit from the Kenya Airports Authority.

Summary Significance:   In a claim for violation of the right to property for a cessation order being issued by the Kenya Airports Authority to stop the development of land adjacent to an airport, the court held that regulatory authorities (NEMA, Counties, KAA) had to work together when issuing development permits. One or two approvals without the concurrence of the other would not do. There was need for close coordination between all the bodies to avoid anarchy, particularly in such sensitive areas as airports. A disjointed approach would compromise the security and safety of the public.
Kanyuira v Kenya Airports Authority (Petition 7 of 2017) [2022] KESC 30 (KLR) (17 June 2022) (Judgment)
Supreme Court of Kenya
PM Mwilu,DCJ & VP; MK Ibrahim, SC Wanjala, SN Ndungu, W Ouko, SCJJ
Reported by John Ribia

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Jurisdiction – jurisdiction of the Supreme Court - appellate jurisdiction – appeals as of right from the Court of the Appeal if they involved constitutional interpretation and application - whether the Supreme Court’s jurisdiction to determine appeals as of right from the Court of the Appeal if they involved constitutional interpretation and application extended to appeals alleging the violation of one’s property rights – Constitution of Kenya, 2010 article 163(4)
Land Law – building permits – permit to develop land adjacent to an airport (aerodrome zones) - whether the Kenya Airports Authority had the power to control the development of land adjacent to airports - whether the Kenya Airports Authority had the power to stop persons with land adjacent to airports from developing their property - whether approvals issued by the County and the National Environment Management Authority to develop land adjacent to airports were pegged on the condition that one would require to obtain a development permit from the Kenya Airports Authority - whether obtaining the necessary approvals from the County and the National Environment Management Authority to develop land adjacent to an airport exempted one from obtaining a development permit from the Kenya Airports Authority – Kenya Airports Authority Act (CAP. 395) sections 13(3), 14, 15 and 33; Civil Aviation Act (No. 21 of 2013), section 56
Constitutional Law – fundamental rights and freedoms – right to property – where one was denied a permit to develop property adjacent to an airport - whether the act of Kenya Airports Authority stopping the development of property adjacent to an airport was a violation of the property holder’s right to property – whether such a violation warranted an a award of damages - what conditions did one need to meet to satisfy an award of damages for violation of one’s constitutional rights - Constitution of Kenya, 2010, article 22, 23 and 40

Brief Facts:
The appellant had undertaken to construct 24 maisonettes on land adjacent to Wilson Airport. The appellant secured financing in the sum of Kshs. 67,671,000.00 and began construction.  No sooner had he commenced the construction than the respondent, in exercise of its powers under the Kenya Airports Authority (the KAA) Act issued a cessation order to stop any construction or development on the ground that the suit property fell within the protected aircraft runway protection zone of the Wilson Airport.
Aggrieved the appellant challenged the cessation order at the High Court via judicial review but the matter was dismissed. Aggrieved by the judgment of the High Court, the appellant filed an appeal at the Court of Appeal which had affirmed the finding of the High Court, that the respondent (Kenya Airports Authority (KAA)) acted within its statutory powers, when it declined to approve the construction of 24 maisonettes by the appellant in a parcel of land adjacent to Wilson Airport, in Nairobi, and; that the respondent’s decision did not amount to compulsory acquisition of the latter’s property to warrant compensation.
Further aggrieved, the appellant filed the instant appeal. The appellant sought a declaration that his right to property had been violated and sought special damages for loss of earnings, a liquidated sum of Kshs. 992,336,004 which he claimed was loss suffered based on violations of his right to property.

Issues:

  1. Whether the Supreme Court’s jurisdiction to determine appeals as of right from the Court of the Appeal if they involved constitutional interpretation and application extended to appeals alleging the violation of one’s property rights.
  2. Whether the Kenya Airports Authority had the power to control the development of land adjacent to airports.
  3. Whether the Kenya Airports Authority had the power to stop persons with land adjacent to airports from developing their property.
  4. Whether approvals issued by the County and the National Environment Management Authority to develop land adjacent to airports were pegged on the condition that one would require to obtain a development permit from the Kenya Airports Authority.
  5. Whether obtaining the necessary approvals from the County and the National Environment Management Authority to develop land adjacent to an airport exempted one from obtaining a development permit from the Kenya Airports Authority.
  6. Whether the act of Kenya Airports Authority stopping the development of property adjacent to an airport was a violation of the property holder’s right to property.
  7. What conditions did one need to meet to satisfy an award of damages for violation of one’s constitutional rights? Read More..

Relevant provisions of the law
Kenya Airports Authority Act (CAP. 395)
Section 15
15. Power to enter land to prevent accidents, etc.
(1) Any authorized employee of the Authority may for the purposes of this Act, enter upon land and—

(a) cut down or remove any tree or other obstruction, not being a building; or
(b) execute such other works as may be necessary to prevent the occurrence of any accident or to repair any damage caused as a result of any accident.

(2) If any tree or other obstruction cut down or removed under subsection (1)(a) came into existence subsequent to the construction of any aerodromes or to the service being provided thereafter, no compensation shall be payable in respect of such entry or the cutting down or removal of such tree or other obstruction.
(3) Where any person erects any building which in any way interferes with the operation of any service provided by the Authority under this Act, the Authority may, unless such person has previously obtained the approval of the managing director to the erection of such building, or has modified it to the satisfaction of the managing director, apply to the High Court for an order for the demolition or modification of such building, or, as the case may require, for the payment to the Authority of the cost incurred in the resetting or replacement necessary to prevent such obstructionor danger and the court at its discretion may grant such order as it may deem fit as to the payment of compensation and costs.

Held:

  1. Jurisdiction was everything. Without it, a court had no power to make one more step. In its absence, the court can do nothing but dismiss the case. Without jurisdiction, the court could not proceed to judgment on the merits; if it did, the result was a nullity.
  2. Appeals from the Court of Appeal would lie, as of right to the Supreme Court under article 163(4) of the Constitution, if they involved constitutional interpretation and application, or upon certification, by either the Court of Appeal or that court, that mattered of general public importance were involved. However there was the need to invoke the correct constitutional or statutory provision that clothed it with jurisdiction to entertain any matter before it. 
  3. The appellant’s claim had throughout been based on the interpretation and application of the Constitution, specifically that his property rights under article 40 were violated by the cessation order and that he was entitled to compensation under article 23 as read with article 24 of the Constitution. The court had jurisdiction under article 163(4)(a) of the Constitution to determine the appeal.
  4. The trial court in R v. Managing Director, Kenya Airports Authority ex-parte Patrick Thoithi Kanyuira, HC Misc. No. 86 of 2009, was right in drawing the distinction between the causes of action in the two suits. In one the appellant had sought the quashing of the cessation order by certiorari, while the petition before the instant court was for compensation for violation of the appellant’s constitutional rights. The cessation order was properly issued by the respondent. To that extent, that issue was res judicata. It was a decision in rem, confirming that one of the bodies whose authorisation had to be obtained before making any development in the vicinity of the airport was the respondent. The appellant ought to have heeded the caution in the execution of the project on the suit property.
  5. The right to own property and develop it to its full potential was a human right, recognized not only by the Constitution but also by international and regional instruments that Kenya was a party to.
  6. The appellant was the holder of a certificate of title to the suit property issued under the repealed Registration of Titles Act, which by section 23 guaranteed its sanctity by providing that the certificate would be conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, only subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon. The terms of the grant of the title permitted the appellant to construct housing units within six months of issue and the suit property was to be used only for residential purposes.
  7. The Kenya Airports Authority Act (KAA Act) provided the Kenya Airports Authority (KAA) with the power to enter upon any land to conduct a survey, to remove or cause to be removed any obstruction, materials, structures or buildings, including slaughterhouses which were likely to attract birds that may be hazardous to aircraft operations; to enter upon any land to prevent accidents by; cutting down or removing any tree or other obstruction, not being a building; or executing such other works as may be necessary to prevent the occurrence of any accident or to repair any damage caused as a result of any accident. The Authority or any of its authorized employees could also enter upon any land and alter the position of any pipe, electric, telephone or telegraphic wire after giving reasonable notice. The wide powers exercised KAA upon private land had the sole aim of making airports adjacent to private land secure and safe.
  8. Section 13(3) of the KAA Act provided that prior approval of the director was a necessary pre-condition and requirement. Only for the purpose of demolition or modification of any building within the proximity of the airport which could pose aviation risk, was the respondent required to obtain an order of the court. It was precisely because of that that the respondent filed in a suit that sought an order of the court to demolish the structures on the suit property which stood spent after the appellant ingeniously withdrew the suit taking away the forum for hearing of the application.
  9. All the powers vested in the respondent by sections 14, 15 and 16 of the KAA Act were aimed at guaranteeing the safety of aircrafts, vehicles and persons using the aerodrome as well as to prevent danger to the public. There was no logic in the argument that there was no basis for the respondent to stop the construction without evidence of how it would interfere with aviation safety and security.
  10. In the instant case, however, there was proof presented to the trial court by three pilots that the construction would be a danger to aircrafts using Wilson Airport. One of the pilots shared their practical ordeal following a plane crash in which he was personally involved near the suit property; that upon crashing, his aircraft burst into flames that would have consumed the suit property had it been constructed.
  11. Prior approval or rejection had to of necessity be based on the independent assessment by the respondent of architectural designs of any proposed construction from which matters like the height of the proposed building could be ascertained. It would be irrational for an investor to put up a building and then seek authorization with the attendant risk of rejection by the authorizing agency.
  12. Because the suit property was adjacent to the airport, it was common factor that the appellant sought approval from the respondent pursuant to the provisions of section 15 of the KAA Act. At no point, in the course of exchanging correspondence did the appellant question the respondent’s authority to control the use of land adjacent to airports.
  13. It was as perplexing as it was disconcerting that the appellant would, after all the exchanges and engagement with the respondent turn around and claim that the respondent had no role in approving his project and insist that, the KCAA, as the only body, in law from which he required approval, and from which he had in fact obtained such authorization, there was no basis for the respondent to insist on compliance with the cessation order.
  14. It was unfortunate for the appellant to contend that the project having been approved by the then City Council of Nairobi and by National Environment Management Authority (NEMA), that he did not require approval from the respondent. By the time the appellant applied to the respondent for approval on January 10, 2008 and even as NEMA gave its approval the appellant had commenced the construction in 2007.
  15. Apart from the respondent, there were other regulatory agencies whose authorization would be necessary for and must be obtained before any development could be commenced within the proximity of the aerodrome areas in Kenya, such as the KCAA, NEMA and NCC, it was the approval of each that would give a licence for any proposed develop in such areas.
  16. One or two approvals without the concurrence of the other would not do, hence the need for close coordination between all the bodies to avoid anarchy, particularly in such sensitive areas as airports. A disjointed approach would compromise the security and safety of the public.
  17. Sections 9 of the repealed Civil Aviation Act which was worded in the same terms as section 56 of the Civil Aviation Act, 2013, and despite the provisions of any law, or the terms of any deed, grant, lease or license concerning the use and occupation of land, the Cabinet Secretary could, where he considered it to be necessary in the interests of the safety of air navigation, by order published in the Gazette, prohibit the erection within a declared area of any building or structure above a height specified in the order. A declared area was any area adjacent to or in the vicinity of an aerodrome.
  18. On the other hand, section 10 of the repealed Civil Aviation Act, which was reproduced in section 57 of the 2013 Act, if the Director-General considered that provisions for civil aviation safety and security or efficiency of air navigation ought to be made, whether by lighting or otherwise for giving aircraft warning of the presence of any building, structure, tree or natural growth or formation on or in the vicinity of an aerodrome; or by the removal or reduction in height of any such obstruction or surface, he or she may by order, and subject to any conditions specified in the order, require or authorise either the owner or occupier of the land on which the obstruction was situated or any person acting on behalf of the Director-General to enter upon the land and carry out such work as was necessary to enable the warning to be given or the obstruction to be reduced in height. Further, the Cabinet Secretary under section 82(2)(x) could regulate or prohibit in the vicinity of any aerodrome the emission or causing of smoke, soot, ash, grit, dust and any other substance whatever which obscures or may obscure visibility.
  19. NEMA was responsible for promoting the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable basis. That in turn ensured the improvement of the quality of human life in Kenya.  The approval had to be obtained prior to commencement of a project. It was the duty of the proponent of a project to undertake an environmental impact assessment study and submit a report for consideration by NEMA.  The approval of a proposed project by NEMA was subject to approval by any other body authorized to do so by any law; and that approval by NEMA was subject to environmental impact of the project.
  20. Similarly County of Nairobi, the predecessor of Nairobi City County, as a local authority had the sole mandate of physical planning in the city. Under the repealed Physical Planning Act, no development within the city could be carried out without a development permission granted by Nairobi City County (NCC). It was a punishable offence to contravene that requirement. Therefore, any person that intended to carry out any development in the city could only do so after obtaining what the Act termed development permission from the Director of Physical Planning. Before granting permission NCC was required by section 32(2) to consult several bodies.
  21. Each of the multi-actor regulatory agencies inevitably involved highly-specialized expertise, with different legal mandate and framework. Their mandates could at times overlap or contradict. That was instead of looking at single institutions. One had to map the full and relevant existing legislative spectrum to appreciate their linkage.
  22. The fragmentation of roles between the regulators only went to blur their jurisdictional boundaries, often making it difficult to decipher when the jurisdiction of one regulator ended and that of the other began. To avoid that, the agencies had to develop and maintain synchrony with each other.
  23. Such synergy was created, for instance in section 10(1) of the repealed Civil Aviation Act, where the National Civil Aviation Security Committee responsible for, among other things, co-ordinating security activities between agencies and other organizations, airports and aircraft operators and other entities concerned with or responsible for the implementation of various aspects of the civil aviation security was established. Its membership, appointed by the Minister, included the respondent. Section 32(2) of the repealed Physical Planning Act was another example.
  24. Section 6 of the Physical and Land Use Planning Act, 2019, which repealed the Physical Planning Act established the National Physical and Land Use Planning Consultative Forum, whose functions were, inter alia, to provide a forum for consultation on the national physical and land use development plan; promote effective co-ordination and integration of physical and land use development planning and sector planning; and consider national security and advise on strategic physical and land use development projects of national, inter-county, county, or transnational importance.
  25. It was in acknowledgment and appreciation of the need for synergy between the regulating agencies that NEMA that the approval was subject to the appellant complying with all the relevant principal laws, by-laws and guidelines issued for the development of the project by all relevant authorities.
  26. Further evidence showed that the regulatory agencies had to work and that in the instant case they worked in coordination.  An example was a letter by  the respondent in response to the Director General KCAA’s letter explaining to the latter that it had not approved the on-going developments on the suit property for the reason that it lay within the approach funnel of the main runway of Wilson Airport. It was surprising that there would be an approval by KCAA that the appellant was exclusively relying on to continue with the construction in the absence of one from the respondent. The appellant was on a bad and unhelpful frolic. The respondent lawfully and within the remit of the Constitution issued cessation order in issue.
  27. The compensation contemplated by articles 22 and 23 of the Constitution could only be awarded where there was proof that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed, or was threatened.
  28. A claim in public law for the deprivation of fundamental rights and freedoms, compensation could include loss of earnings.  There was nothing in section 33 of the KAA Act that would entitle the appellant to be compensated in the claimed sum of Kshs. 992,336,004. That was because his loss, injury or damage, if any, were as a result of his own subversive actions.
  29. The right to property under article 40 of the Constitution was not an absolute right. In appropriate circumstances it could be limited by the law. The respondent had produced evidence in support of the justification to stop the project pursuant to the KAA Act. The security and safety of flight paths was in public interest which permitted the limitation on enjoyment of the right and freedoms in the Bill of Rights of a private individual.
  30. In determining whether the limitation of a right was justifiable, a court had to consider the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, and the fact that the need for enjoyment of the right by one individual did not prejudice the rights of others.
  31. The respondent’s action did not extinguish the appellant’s ownership rights to the suit property nor did it technically amount to acquisition of the suit property by the respondent. The cessation order only sought to restrict the activities that, in the view of the respondent would compromise aviation safety and security.

Appeal dismissed, costs awarded to the respondent