https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12171

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E448 OF 2026** ***(In the matter of Articles 2(5), 2(6), 3, 10, 19, 20, 21, 22, 23, 27, 28, 29(a) and (f), 47, 50(1), 73, 159,165(3)(b) and (d) and 258 of the Constitution of Kenya, 2010; and in the matter of the threatened contravention of the fundamental rights and freedoms of Francis Mobisa Asanyo arising from extradition proceedings instituted against him without lawful basis vide Misc. Criminal application No.E695 of 2026 in the Chief Magistrate's Court at Milimani, Nairobi, at the instance of the United States of America)*** **BETWEEN** **FRANCIS MOBISA ASANYO…………………………..………PETITIONER** **VERSUS** **REPUBLIC OF KENYA**………………………………….…**1ST RESPONDENT** **THE DIRECTOR OF PUBLIC PROSECUTIONS……..………2ND RESPONDENT** **THE HONOURABLE ATTORNEY GENERAL**………….…....**3RD RESPONDENT** **THE SOLICITOR GENERAL**………………………...……..**4TH RESPONDENT** **JUDGMENT** **Introduction** 1. The petition dated 3rd July,2026 and is supported by the petitioner’s affidavit is accompanied by a Notice of Motion application dated and even date, and a further rejoinder dated 26th July,2026.It is expressed to be brought under Articles 2(5), 2(6), 3, 10, 19, 20, 21, 22, 23, 27, 28, 29(a) and (f), 47, 50(1), 73, 159,165(3)(b) and (d) and 258 of the Constitution of Kenya, 2010. 2. He thus prays for the grant of the following reliefs: 3. ***A DECLARATION that there is no valid, subsisting or domestically operative extradition treaty or arrangement between the Republic of Kenya and the United States of America within the meaning of Article 2(6) of the Constitution and the Extradition (Contiguous and Foreign Countries) Act, Cap 76.*** 4. ***A DECLARATION that the letter dated 26th February 2026, reference AG/CONF/6/C/51/14 VOL.1, from the 4th Respondent to the 2nd Respondent is unlawful, ultra vires, and contravenes Article 47 of the Constitution.*** 5. ***A DECLARATION that the Order of the 2nd Respondent dated 27th February 2026 in Misc. Criminal Application No. E695 of 2026 was made in contravention of Articles 47 and 2(6) of the Constitution and is therefore unconstitutional, null and void.*** 6. ***A DECLARATION that proceeding to committal upon the Hood Affidavit and the Ngigi Affidavit would contravene the Petitioner's rights under Articles 50(1) and 28 of the Constitution, the said affidavits disclosing no prima facie case against the Petitioner within the meaning of Section 9 of Cap 76.*** 7. ***A DECLARATION that any offences allegedly committed by the Petitioner, if at all, were committed within the territorial jurisdiction of the Republic of Kenya, and that his surrender to the United States of America would contravene Article 29(f) of the Constitution and Section 6 of the Extradition (Contiguous and Foreign Countries) Act, Cap 76.*** 8. ***AN ORDER of CERTIORARI pursuant to Article 23(3)(f) of the Constitution removing into this Honourable Court and quashing the Order of the 2nd Respondent dated 27th February 2026 and all proceedings in Misc. Criminal Application No. E695 of 2026.*** 9. ***AN ORDER of PROHIBITION pursuant to Article 23(3)(c) of the Constitution restraining the Respondents, whether by themselves, their agents, officers or servants, from taking any further step in the extradition proceedings against the Petitioner or otherwise giving effect to the extradition request.*** 10. ***THAT the costs of and incidental to this Petition be borne by the Respondents.*** 11. ***THAT this Honourable Court be pleased to grant such further or other reliefs as it may deem just and expedient in the circumstances.*** 12. Contemporaneously with the filing of the petition, the petitioner filed a notice of motion application dated 3rd July 2026 seeking interim conservatory orders pending the hearing and determination of the petition. The respondents replied to the said application, opposing it vigorously. The court gave directions on the filing of submissions on both the application and the petition. Parties have since filed submissions on both the motion and the petition. Even though parties filed submissions on both the application and the petition, the court erroneously set the matter down for a ruling instead of a judgment. Since all parties made final submissions on both the motion and the petition, and in the interest of expeditious disposal of the suit which was certified as urgent, the court has found it apt to write a judgment on the main petition. **Petitioner’s Case.** 1. The petitioner deposed that on 9th February 2026, the United States of America published INTERPOL Red Notice No. A-2106/2-2026 designating him a fugitive wanted for prosecution and on 15th February 2026, he was arrested at Rongai, Nairobi, by officers of the Joint Anti-Terrorism Task Force. On 16th February 2026, Honourable Irene Thamara, Senior Resident Magistrate, granted custodial orders for 14 days pending receipt of a formal extradition request where he was detained but later released on bail pending the extradition proceedings in **Misc. Criminal Application No. E695 of 2026**, which is listed for hearing on **6th August 2026.** 2. The Petitioner depones that upon his perusal ofMisc**. Criminal Application No. E695 of 2026,** he learnt that on 26th February 2026 the 4th Respondent, the Solicitor General, addressed a letter, reference AG/CONF/6/C/51/14 VOL.1, to the 2nd Respondent, the Director of Public Prosecutions. The letter forwarded extradition requests from the United States of America in respect of the Petitioner and five other Kenyan nationals, and purported to invoke as the legal basis the Extradition Treaty between the United States and the United Kingdom of 22nd December 1931, said to have been made applicable to Kenya on 24th June 1935 and to continue in force pursuant to an agreement concluded on 19th August 1965. 3. The Petitioner avers that Kenya and the United States of America have no valid, formal, ratified, or domestically operative extradition treaty as ,according to him, the 1931 treaty was concluded between the United States and the United Kingdom, to neither of which independent Kenya is a successor for purposes of bilateral treaty obligations. That the extension to Kenya in 1935 was a unilateral colonial act to which Kenya gave no consent and that upon independence on 12th December 1963, Kenya was not bound by that arrangement and hence, there is no treaty with the United States has ever been ratified by Kenya as required by **Article 2(6) of the Constitution of Kenya, 2010.** 4. The petitioner avers that it is the 4th Respondent’s letter to the 2nd Respondent that commenced the criminal proceedings yet the 4th Respondent has no independent statutory authority to initiate, direct, or transmit extradition proceedings. He states that the function vested exclusively in the 2nd Respondent as a constitutionally independent officer under Article 157 of the Constitution and therefore, the Order of the 2nd Respondent following one day later raises serious concern as to whether the 2nd Respondent's independence under Article 157 was genuinely exercised. 5. The Petitioner states that the Affidavit in Support of Request for Extradition sworn by Brian R. Hood, Assistant United States Attorney for the Eastern District of Virginia, on 26th June 2025 (the **Hood Affidavit**), at paragraphs 2 to 4 of his affidavit that his knowledge of the case derives from his duties as a prosecutor and not from personal investigation. That the same relies on the anticipated future testimony of numerous unnamed cooperating witnesses, whose statements are not exhibited anywhere in the extradition bundle, and that material of this character does not establish a prima facie case against the Petitioner. 6. The Petitioner further avers that theAffidavit of IP No. 239478 Nickson Ngigi sworn on 2nd March 2026 and filed in Misc. Criminal Application No. E695 of 2026 (the **Ngigi Affidavit**), relies on hearsay and not on the deponent's personal knowledge or investigation. 7. The Petitioner avers that Section 6 of the **Extradition (Contiguous and Foreign Countries) Act**, Cap 76, bars the surrender of a person for an offence committed within Kenya and with him being based in Kenya, as both the Hood Affidavit and the Ngigi Affidavit themselves state, any alleged crimes were performed from within Kenya and not the United States of America. The Petitioner is ready to face criminal charges in Kenya. 8. The Petitioner avers that the hearingin Misc. Criminal Application No. E695 of 2026 is scheduled for 6th August 2026and if this Honourable Court does not intervene by way of conservatory orders before that date and committal orders are issued, he shall be arrested and surrendered to the United States authorities, and this Petition together with any relief this Honourable Court might grant would be rendered wholly and irreversibly nugatory. 9. The Petitioner states that theextradition proceedings are a violation of his rights under Articles 2(6), 28, 29(a) and (f), 47 and 50(1) of the Constitution of Kenya, 2010, and the petition is brought in good faith and asks the court to allow the Application and Petition as prayed. ***Respondents’ Case*** 1. In response, the 2nd Respondent, hereinafter, ’the Respondent’ through the Principal Prosecution Counsel, **Magdalene Nduati** led a replying affidavit sworn on 25th July, 2026 accompanied by grounds of opposition dated an even date. 2. The Respondent avers that they acted strictly within the constitutional and statutory mandate provided by Article 157 of the Constitution of Kenya, the Office of the Director of Public Prosecution Act and the Extradition (Contiguous and Foreign Countries) Act. That the decision by the 2nd Respondent issuing the Order dated 27th February 2026, to signify the requisition for the extradition and surrender of the Petitioner herein before the Chief Magistrate's Court was undertaken pursuant to the applicable legal framework governing extradition proceedings and do not violate the Petitioners rights. 3. The Petition improperly invites this Honourable Court to interfere with matters that fall within the independent constitutional mandate and prosecutorial discretion of the Director of Public Prosecutions contrary to Article 157(10) of the Constitution and seeks to invoke the constitutional jurisdiction of this Honourable Court prematurely while the extradition proceedings before the Chief Magistrate's Court remain pending and the Petitioner has adequate opportunity to raise all factual and legal objections before that Honourable Court. 4. The Respondent states that the issues raised in the Petition, including the validity, applicability and interpretation of the legal instruments underpinning the extradition request, constitute matters falling for determination in the first instance within the pending extradition proceedings and Petition seeks to circumvent the statutory procedure established under the Extradition (Contiguous and Foreign Countries) Act CAP 76 Laws of Kenya by inviting this Court to determine issues that are properly before the extradition court without demonstrating that the extradition proceedings have been conducted unlawfully, arbitrarily, irrationally, in bad faith or in violation of the rules of natural justice. 5. The Respondent states that the Petitioner has failed to establish any violation or threatened violation of Articles 27, 28, 29, 47 or 50 of the Constitution attributable to the conduct of the 2nd Respondent and ,institution of extradition proceedings pursuant to a request for extradition made through the prescribed governmental channels does not, without more, amount to a violation of constitutional rights. 6. The Respondent avers that the Petition improperly seeks this Honourable Court's determination on disputed questions of fact which require evidentiary proof and are unsuitable for determination through bare constitutional allegations. 7. The Respondent avers the Petition is founded upon contested legal and factual assertions regarding the existence, validity and applicability of the extradition arrangements between the Republic of Kenya and the United States of America, which cannot be resolved in the Petitioner's favour without a full evidentiary inquiry. That the Petitioner has failed to demonstrate that the 2nd Respondent acted ultra vires, illegally, irrationally, unreasonably or in abuse of the provisions of Article 157 of the Constitution. 8. The Respondent avers that the function of the extradition court is not to determine guilt or innocence of a fugitive criminal but to establish whether statutory requirements for extradition have been fulfilled and hence this Honourable Court has no jurisdiction to usurp the powers and functions reserved for the trial court which in exercise of its jurisdiction has heard the matter and is pending ruling on the substantive application for extradition on 6th August 2026, involving the Petitioner herein 4 others. 9. The Respondent admits that the chronology of those events as narrated by the Petitioner are substantially correct except that the extradition suit, Miscellaneous Criminal Application No. E685 of 2026 comes up for ruling on 6th August, the Respondent therefore asserts that the Petitioner was accorded time to defend himself against the trial court and challenges the merits of the Petition which seems to preempt the outcome of the extradition proceedings .The Petitioner cannot invite this Honourable Court, in constitutional proceedings, to conduct a detailed evaluation of the evidentiary merits of the extradition request before the extradition court has discharged its statutory mandate. 10. As regards the Ngigi Affidavit forms part of the record in Miscellaneous Criminal Application No. E685 of 2026 was solely sworn for the purposes of opposing bail/bond and the main Motion was accompanied by y the Supporting Affidavit of Fatma Shaban Prosecution Counsel sworn on 2nd March 2026.Nevertheless that the information in that affidavit came from guidance of counsel, the 2nd Respondent or other official channels. 11. The Respondent deposes that the precise characterization of the Petitioner's alleged role within the conspiracy is indicated under paragraphs 8-20 of the supporting affidavit sworn by Fatma Shaban dated 2nd March 2026, and that it is an evidential issue to be determined in accordance with the applicable extradition law and does not constitute a constitutional violation. That the Petitioner will suffer no prejudice because he is entitled to challenge the legal sufficiency of the material placed before the extradition court, which remains seized of jurisdiction to determine whether the statutory threshold for committal has been established. 12. The Respondent states that that the offence were committed in Kenya does not make extradition unlawful and the question whether an offence is an extraditable offence, the place where the offence was committed, and whether any statutory bar to extradition applies are matters specifically reserved for determination within the extradition proceedings .The Respondent further denies that the existence of possible offences under Kenyan law automatically bars extradition where the requesting State alleges offences within its jurisdiction and where the applicable extradition requirements are satisfied. 13. The Respondent further deny that the arrest, detention and prosecution of the Petitioner was arbitrary and that he currently is out on bail pending the decision of court hence enjoying the protection of the law, including the right to appear before the extradition court, make representations, challenge the evidence relied upon and pursue any lawful remedies available to him. That he has failed to prove any violation and or imminent violation of his rights, extradition proceedings do not amount to violation of his rights. 14. The Respondent further states that the Constitution does not shield any person from lawful legal proceedings commenced in accordance with the law, including extradition proceedings and the Petitioner's constitutional rights must be balanced against the constitutional obligation of the State to cooperate with other nations in the investigation and prosecution of crime, subject always to the safeguards provided by law mentioning that the extradition process itself incorporates procedural safeguards intended to protect the rights of the requested person. 15. The Respondent states that the Petitioner has not been denied the opportunity to raise the abovementioned issues for the Chief Magistrate's Court in Miscellaneous Criminal Application No. E685 of 2026 where he may object to the legality, evidence, sufficiency and propriety of the extradition request and proceedings thereto and the existence of Articles 22 and 258 of the Constitution does not convert every legal complaint arising in pending proceedings into a constitutional petition. The Respondent therefore prays that the competent court be allowed to render its decision and for the petition and application to be dismissed in their entirety. 16. Parties filed submissions for both the Application and Petition. ***Petitioner’s Submissions*** 1. The Petitioner filed submissions dated 26th July,2024 whey he list the following issues for determination: 2. ***Whether there exists any extradition treaty ratified by Kenya as against the United States of America within the meaning of Article 2(6) of the Constitution, capable of founding the extradition proceedings in Misc. Criminal Application No. E695 of 2026;*** 3. ***Whether the Petition is premature or barred by the doctrines of exhaustion and constitutional avoidance;*** 4. ***Whether the letter of the 4th Respondent dated 26th February 2026 and the Order of the 2nd Respondent dated 27th February 2026 constitute administrative action that contravenes Article 47;*** 5. ***Whether the Petitioner has demonstrated a threatened contravention of his rights under Articles 28, 29(a) and (f), 47 and 50(1) with the precision the law requires; and*** 6. ***Whether the conservatory and declaratory reliefs sought ought to issue.*** 7. The Petitioner states that the Petition's central complaint is that no such treaty exists as between Kenya and the United States of America and the 2nd yet across all of that material it has not named, exhibited, or proved the ratification of any extradition treaty. That no instrument is identified. No date of ratification is given. No Gazette notice is produced. The party asserting the existence of a legal foundation bears the burden of establishing it, and the omission, in a Petition whose central complaint is precisely the absence of a treaty, is not an oversight but a concession. 8. The petitioner that no ratification under Article 2(6), or under the Treaty Making and Ratification Act, No. 45 of 2012, has ever occurred. Citing **Samuel Kimicho Gichuru v Republic**, that held that: “***extradition proceedings are lawful only where there exists a valid, formal and domestically operative extradition arrangement between Kenya and the requesting State, and that a colonial-era treaty extension not re-ratified by independent Kenya through the proper constitutional and legislative processes cannot found the jurisdiction to commit a person for extradition.”*** 1. The Petitioner contends that the Respondents improperly rely on the United Nations Convention Against Transnational Organized Crime because: Article 16 of the Convention is permissive "may" rather than mandatory, Kenya has not demonstrated that it elected to rely on the Convention as the legal basis for extradition, the offences alleged have not been shown to fall within the Convention's scope, the extradition request itself was not made pursuant to the Convention and accordingly, the Convention cannot cure the absence of a valid bilateral extradition treaty. 2. The Petitioner submits that the doctrine of exhaustion does not apply because a Constitutional court may intervene where an alternative forum cannot grant the relief sought, the Petition raises pure constitutional questions concerning the legality of the extradition proceedings, the extradition court cannot determine whether the constitutional foundation for the proceedings exists, if there is no valid treaty, then the extradition court never acquired jurisdiction in the first place, the Petitioner therefore argues that constitutional intervention is justified at this stage. 3. On the third issue, the Petitioner rejects the argument that the proceedings interfere with the independence of the Director of Public Prosecutions ,they submit that Article 157(11) requires the DPP to act in accordance with the Constitution, public interest, and the need to prevent abuse of legal process and Prosecutorial independence does not shield unconstitutional or unlawful decisions from judicial scrutiny and therefore, that the Court is not being asked to direct prosecutorial discretion but to determine whether the DPP acted without a lawful legal foundation. 4. Relying on the principle in *Owners of the* ***Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd*,** the Petitioner argues that jurisdiction is everything and since the alleged extradition proceedings are founded on a non-existent treaty, they are void ab initio, and all subsequent proceedings are equally invalid. 5. The Petitioner submits that the unlawful extradition proceedings threaten several constitutional rights, including: the right to dignity, freedom and security of the person, fair administrative action, the right to a fair hearing and protection under the Constitution against unlawful exercise of State power. 6. The Petitioner asks for prayers as sought in the petition. **Respondent’s Submissions** 1. The Respondent filed submissions dated 24th July,2026 condensing the issues for determination as follows: 2. ***Whether the Petition is premature and an abuse of the court process.*** 3. ***Whether this Honourable Court should interfere with pending extradition proceedings before the Chief Magistrate’s Court.*** 4. ***Whether the 2nd Respondent acted within his constitutional and statutory mandate in commencing extradition proceedings.*** 5. ***Whether the Petitioner has demonstrated any violation or threatened violation of his constitutional rights.*** 6. ***Whether the legal basis and evidentiary sufficiency of the extradition request are matters for determination in the constitutional Petition*** 7. The Respondent on issue 1 submits that,the Petition is premature because the Petitioner has approached this Honourable Court before exhausting the statutory process established under the Extradition (Contiguous and Foreign Countries) Act, Cap. 76which establishes a complete legal framework governing extradition proceedings, including the proper court, presentation of evidence, objections by the person sought to be extradited, and determination by the extradition court. 8. The Respondent states that the issues raised by the Petitioner in this Petition substantially relate to matters expressly reserved for determination by the extradition court, including: 9. ***whether the extradition request is legally founded;*** 10. ***whether the offences are extradition offences;*** 11. ***whether there exists sufficient evidence linking the Petitioner to the alleged offences; and*** 12. ***whether the statutory requirements for surrender have been met.*** 13. Citing **Director of Public Prosecutions v Okemo & 4 Others [2022] KESC 33 (KLR)**, where the Supreme Court affirmed that extradition is a specialized statutory process governed by the applicable extradition law and that courts must respect the procedure established by Parliament the Respondent states that the Petitioner cannot bypass the statutory process by transforming objections properly belonging before the extradition court into constitutional allegations. 14. On whether this court should interfere with the pending extradition proceedings, the Respondent relying on the doctrine of constitutional avoidance, states that the constitutional jurisdiction of the High Court is not intended to replace ordinary statutory mechanisms provided by Parliament. A party who is dissatisfied with a process must first pursue the remedies available within that process unless a clear violation of constitutional rights has been demonstrated. They cited the case of **Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR and** **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR.** 15. The Respondent submits that present Petition falls squarely within the mischief addressed by the doctrine of constitutional avoidance. The Petitioner has raised complaints concerning the legality, sufficiency and admissibility of material supporting the extradition request. Those matters are expressly provided for under the Extradition Act and ought to be determined by the extradition court which the Petitioner still retains audience before to challenge the request, contest the evidence, raise legal objections and pursue any available appellate remedies if dissatisfied with the outcome. The constitutional mandate of this Honourable Court should therefore not be invoked to terminate a lawful process before the court. 16. On whether the 2nd Respondent acted within his constitutional and statutory mandate, the Petitioner alleges the 2nd Respondent acted on instructions of the solicitor general and not independently. The Respondent submits that the decision to commence extradition proceedings was made pursuant to the constitutional and statutory mandate of the DPP and in response to a formal request transmitted through the recognised governmental channels and that the DPP did not determine the guilt or innocence of the Petitioner. The role of the DPP at this stage was limited to initiating proceedings before the competent extradition court which court will determine if the Petitioner should or should not be extradited. 17. The Respondent submits that the Petitioner has not produced any evidence demonstrating that the DPP acted in bad faith; for an improper purpose; irrationally; arbitrarily; or outside the powers conferred by Article 157 of the Constitution and that the Petitioner bears the burden to proof the alleged violations to the standard laid down in **Anarita Karimi Njeru v Republic [1979] KLR 154.** 18. The Respondent affirms that there exists a clear legal foundation for the proceedings, citing Article 2(6) of the Constitution which provides that: ***“Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”*** 1. That Kenya and the United States have longstanding extradition arrangements founded upon the applicable extradition instruments between the two States. The extradition framework is further recognised under the Extradition (Contiguous and Foreign Countries) Act, Cap. 76, which provides the procedure for dealing with requests from foreign States. The proceedings are also supported by Kenya’s international obligations under the United Nations Convention against Transnational Organized Crime (UNTOC), to which Kenya and the United States are parties and Article 16(4) of UNTOC recognises that where a State makes extradition conditional upon the existence of a treaty, the Convention may constitute the legal basis for extradition in respect of offences covered by the Convention. 2. The Respondent relied in the case of **Gunter Grochowski v Attorney General & Another [2009] eKLR** where courtrecognized that international conventions may provide a legal basis for extradition where applicable, they argue that therefore, the Petitioner’s argument that there is no legal foundation for extradition is without merit. 3. As regards whether the petitioner’s constitutional rights have been violated, the Respondent submit that the petitioner’s rights under Articles 27, 28, 29, 47 and 50 of the Constitution, as the extradition process itself accord the Petitioner safeguards to protect him including bail and the DPP’s action of commencing the proceedings is lawful administrative action undertaken pursuant to legislation and constitutional authority and thus cannot be unfair, because it is due process. The Constitution protects individuals from unlawful state action, not from lawful accountability mechanisms established by law. 4. The Respondent also submits that this court cannot examine facts, evidence and its sufficiency, admissibility and reliability of the material presented by the United States authorities in support of the extradition request, the extradition court is not required to determine whether the Petitioner is guilty. That determination belongs to the trial court in the requesting State. The present Petition seeks to reverse this established legal position by inviting the High Court to conduct an assessment of evidence before the extradition court has completed its mandate and which power rests with the court in the requesting state. They relied on the decision in **Patrick Ayisi Ingoi v Republic, Criminal Appeal No. 131 of 2008 [2018] eKLR and Director of Public Prosecutions v Okemo & 4 Others [2022] KESC 33 (KLR).** 5. The Respondent submits that petitioner has not established a basis for constitutional reliefs sought the Petition contains broad allegations but does not identify any specific unlawful action by the 2nd Respondent that has infringed the Petitioner’s rights and the mere fact that the Petitioner faces extradition proceedings cannot constitute discrimination, violation of dignity, arbitrary deprivation of liberty or denial of fair hearing. 6. Finally, the Respondent avers that the Petitioner improperly seeks to limit international cooperation in combating transnational crime stating that modern criminal activity, particularly cybercrime and financial fraud, frequently transcends national borders and effective prosecution of such offences requires cooperation between States. 7. The Respondent states that Kenya, as a member of the international community, has undertaken obligations to cooperate in combating organised transnational crime, terminating the extradition proceedings before the statutory process is concluded would undermine Kenya’s international obligations and the legislative scheme governing extradition , in any case, the Petitioner will have the opportunity to defend himself fully before the United States District Court, where the allegations will be tested through a criminal trial. 8. Consequently, the Respondents prayer is that the Notice of Motion Application dated 3rd day of July 2026 and the Petition of the instant date be dismissed. # Analysis and Determination 1. It is my considered view that the issues that arise for determination in this matter are: 2. ***The place of extradition proceedings.*** 3. ***Whether the Petition meets the threshold of a Constitutional Petition , if so, whether respondents’ violated the petitioner’s rights under Articles 2(5), 2(6), 3, 10, 19, 20, 21, 22, 23, 27, 28, 29(a) and (f), 47, 50(1), 73, 159,165(3)(b) and (d) and 258.*** With regard to the extradition proceedings i.e. ***Miscellaneous Application No.E695 of 2026*** which lies at the core of the determination of this Petition, I wish to consider as follows: 1. **Halsbury’s Laws of England, 4th Edition Vol 18** at page 74 paragraph 201 describes extradition as follows: “*Extradition is 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.”* 1. It was submitted that the extradition proceedings as filed were unfair and discriminative. That they contravened the Constitution on equality before the law by purporting to charge the Applicant/Petitioner. 2. By dint of **Article 165(3) (d)**of the**Constitution**, this Court is under a constitutional duty to protect the mandate and integrity of all constitutional institutions, offices and state organs. This role, by extension, falls on all courts. However the High Court has been placed at the heart of this duty as the entry point in constitutional issues. That is why the Supreme Court observed as follows in **Peter Oduor Ngoge vs Francis Ole Kaparo & 5 others [2012] eKLR**: ***“In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.”*** 1. Under the **Constitution 2010,** the Office of the Director of Public Prosecution has been created by **Article 157.** The powers of the DPP are provided thus: **157(6) *he Director of Public prosecutions shall exercise State powers of prosecution and may-*** ***(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;*** ***(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and*** ***(c) subject to clause (7) and (8), discontinue at any stage before judgement is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).*** 1. It therefore follows that the Office of the Director of Public Prosecution is an Independent office distinct from the Attorney General’s office and this Court has a duty to protect all institutions and offices created by the Constitution from infringement on their mandate including that of the DPP. However, while the DPP has the mandate to institute and authorize extradition proceedings, the two offices must and still work together. This must be done within the confines of the law and the Constitution. 2. The international element in extradition proceedings means that Countries may continue to send requests through the Attorney General and the Attorney General is under a duty to respect the Constitution by forwarding such requests for action by the DPP as he has in fact been doing. That is the spirit of co-operation and harmony that runs through the Constitution and which explains why and how the 4th Respondent forwarded the letter to the 2nd Respondent to commence the extradition proceedings against the Petitioner herein. This cannot be faulted by the Petitioner. 3. **Section 2**of the **Extradition (Commonwealth Countries) Act (cap 77)** defines the Court thus; **“the ‘court’ means the Resident Magistrate’s Court.”** This is important so as to clearly indicate the Court which has the jurisdiction to hear and determine extradition proceedings. This places the magistrate’s court as the proper court to handle extradition applications and or proceedings. 4. What is clear from provisions of the law is that the subordinate court is required to determine whether the offence for which an accused or convicted person is sought to be surrendered or extradited, amounts to an extradition offence; whether there is 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 has indeed been convicted in the requesting State and appears to be at large; and whether to surrender the accused or convicted person, as is in this case. 5. I therefore find that extradition proceedings in ***Miscellaneous Application No.E695 of 2026***, which have been instituted in the Magistrate’s Court, are valid as the authority to proceed was issued by the DPP who has the legal authority to issue such an authority. ***Unfair and discriminative proceedings*** 1. It was submitted that the extradition proceedings as filed were unfair and discriminative. That the Respondents contravened the Constitution by purporting to charge the Applicant/Petitioner before a court of law. 2. This right is envisaged under Article 27 of the Constitution. The relevant sub-articles as referenced by the petitioner read as follows: *(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.* *(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.* *(3) …* *(4) …* *(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).* *(6) …* *(7) …* *(8)* … 1. The Constitutional Court of South Africa discoursing on this right in the case of **Prinsloo v Van der Linde and Another (CCT4/96) [1997] ZACC 5** opined as follows: ***“17. If each and every differentiation made in terms of the law amounted to unequal treatment that had to be justified by means of resort to section 33, or else constituted discrimination which had to be shown not to be unfair, the courts could be called upon to review the justifiability or fairness of just about the whole legislative programme and almost all executive conduct. As Hogg puts it:*** ***“What is meant by a guarantee of equality? It cannot mean that the law must treat everyone equally. The Criminal Code imposes punishments on persons convicted of criminal offences; no similar burdens are imposed on the innocent. Education Acts require children to attend school; no similar obligation is imposed on adults. Manufacturers of food and drugs are subject to more stringent regulations than the manufacturers of automobile parts. The legal profession is regulated differently from the accounting profession. The Wills Act prescribes a different distribution of the property of a person who dies leaving a will from that of a person who dies leaving no will. The Income Tax Act imposes a higher rate of tax on those with high incomes than on those with low incomes. Indeed, every statute or regulation employs classifications of one kind or another for the imposition of burdens or the grant of benefits. Laws never provide the same treatment for everyone”*** 1. Having noted that the nature of extradition proceeding are ***sui generis*** in nature and having satisfied that the magistrate’s court is the proper avenue to hear and determine these proceedings, onus was upon the Petitioner that he has been treated differently from other Kenyans or his fellow accused persons . 2. Each party to court proceedings has a duty to make out its case before court by adducing evidence and calling witnesses. Criminal liability is personal even in instances of offences committed by people jointly. 3. Further, extradition proceedings are not in the business of determining the guilt or innocence of a party before them, discrimination can hardly be invoked in circumstances where criminal liability is attributable to an individual. Neither the Magistrate’s Court nor this Court can therefore properly at this stage of the extradition proceedings purport to determine the criminal liability of persons who are not before them as there is no evidence to enable the Court make such a determination. 4. In the circumstances, I am unable to find any basis for finding that there was any discrimination in the institution of the extradition proceedings. ***The right to fair hearing*** 1. On fair hearing, no case was advanced by the Petitioner to show that the proceedings before the magistrate’s court were unfair or that the actions of either of the Respondents to commence proceedings was unfair towards the Petitioner. 2. The Respondents has stated that they followed process in commencing the extradition proceedings and that the Petitioner has been admitted to bail pending ruling on 6th August, 2026. Therefore, the Petitioner is still presumed innocent until such orders are issued by court. 3. Merely feeling threatened or inconvenienced by investigations, criminal proceedings and court attendance is not sufficient reason to claim lack of fair hearing. Proof of violation, infringement or threat or contravention of a person’s rights under the Constitution of Kenya is required. 4. Aspersions were made against the indictment and the ‘HOOD affidavit’ that the listing of undisclosed reliable witnesses would constitute unfair hearing enshrined under Article 50 of the Constitution. **.** They further argued that the alleged offences against them were committed in Kenya and therefore, the competent jurisdiction in which they should face trial should be Kenya and not USA. 5. It emerges that the Applicant/Petitioner is attempting to make their case against their extradition before this Court, the High Court. I have already stated that the Court with jurisdiction in extradition matters is the Magistrate’s Court. The High Court’s jurisdiction is limited under **Sections 10, 11**and **12**of the Extradition (Commonwealth Countries)Act and while this Petition is rightfully before the court as a constitutional matter, the argument by the Petitioner flies on the face of the law because it has not yet been decided by the extradition Court that the he will definitely be extradited. His apprehensions which can be competently dealt with by the Magistrate’s Court are therefore misplaced. As a Court established by **Article 169**of the**Constitution**, the Magistrate’s Court is bound in exercise of its mandate to protect and defend the Constitution. The contrary has not been shown in this case as against that Court. 6. The fundamental question is, does Kenya have an extradition agreement with the United States? If the answer is yes, it befalls all State organs to have to honor that agreement. It would be amiss for Kenya to enter into an agreement with a State and turn its back on it. 7. The court in**Samuel Kimuchu Gichuru & another v Attorney General & 3 others [2015] KEHC 700 (KLR),** said as much, holding **“*73.*** ***Secondly, before a State like Kenya ratifies any treaty or enters into any contractual and the ministry in charge of foreign affairs must do due diligence. Before Kenya agreed to enter into an extradition agreement with the Island of Jersey it is right to assume that it was satisfied that its legal system met all the rules of fairness and legality.*** ***74. As a matter of fact, I dare say that it does not fall within the jurisdiction of a municipal Court to question and put to trial the legal system of another sovereign State. That power and matter falls within the confines of international law and International Courts and Tribunals. It is clear to me therefore that while the right forum to address the issue is the Magistrate’s Court without representation from the State authorities of Jersey, this Court or any other Court in Kenya would not be acting fairly if it purports to determine how the legal system of Jersey works. I say so guardedly as the Magistrate’s Court will ultimately make its own decision on the matter despite any comments made by me in this matter and I have stated why.”*** 1. To this end, I find that the Petitioner has made mere allegations but has not provided any proof of unfairness within Kenya or an imminent one they could face if extradited to the United States for hearing and the prayer fails. ***Right to Human dignity and freedom and security of a person*** 1. The Petitioner pleaded that the actions of the Respondents in his extradition were arbitrary and devoid of lawful justification and that there are adequate legal mechanisms within Kenya to deal with the alleged offences without the arbitrary removal which shall contravened Articles 28 and 29 of the constitution. 2. As already dealt with above, it is not in doubt that the Respondents followed procedure in instituting the extradition proceedings, the Petitioner has failed to demonstrate how arbitrary the actions by the Respondents were and or how the said actions have affected his dignity. 3. Arrest and investigations are legal processes within our justice system that are aimed at fact finding of a commission of crime and do not translate to infringement of rights and fundamental freedoms. In any case, if there is no evidence, a person cannot be arrested and if arrested, the Applicant has a right to be admitted to bail by Court. As long as investigations are carried out in accordance with the law and rules, the processes thereto must be allowed to run their course for proper administration of justice. 4. Article 25 of the Constitution protects against torture, cruel and inhuman as well as degrading treatment. Proof of harassment, humiliation, cruelty and reputational harm by the Respondent hasn’t been tabled by the petitioner and this prayer equally fails. 5. The Respondents submitted that the Petition was unfounded and without merit as the Petitioner failed to prove any of the violations alleged, which does not meet the threshold for grant of the orders sought. 6. This issue brings to the fore the manner in which a factual issue in a constitutional Petition ought to be proved. The Courts in **Anarita Karimi Njeru vs Republic (1976- 80) 1 KLR 1272, Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others,** have exhaustively dealt with this. 7. *Sections 107 (1), (2) and 109 of the Evidence Act speak to the manner of discharging burden of proof. The provisions state as follows: -* *107. (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.* *(1) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. and* *109. Proof of particular fact The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.* 1. In **Christian Juma Wabwire v Attorney General [2019] eKLR** expressed itself thus: - “***24. I am alive to the fact, that the petitioner in his petition alluded to various constitutional violations, but without having availed tangible evidence of violation of his rights and freedoms, I find the allegation by mere words without any other evidence, the court cannot find that the petitioner has proved violations of his rights and freedoms. The petitioner herein ought to have produced documentary evidence such as medical reports and called witnesses to ensure court considers the same. The courts of law are deaf to speculations and irregularities as it must always base its decision on evidence. I therefore find and hold that the petitioner failed to discharge the burden of proof to the required standard of proof. I find that the petitioner did not give evidence of probative value to enable this court decide the petition in his favour and grant the orders sought.”*** 1. The Petitioner in the instant petition cited and listed Constitutional provisions allegedly contravened by the Petitioner but failed to adduce any evidence to succeed in any of them, they remain speculative and unproven. 2. The upshot of the foregoing is that I hereby make the following orders; 3. ***The petition and Notice of Motion application both dated and filed on 3rd July, 2026 lack merit and are hereby dismissed.*** 4. ***There shall be no orders as to costs.*** ***Dated, signed and delivered Virtually at Nairobi this 31st day of July 2026***. **DAVID MBURU** **JUDGE**