[2023] KEHC 25697 (KLR)

Nzuki v General & 2 others (Criminal Miscellaneous Application E430 of 2023) [2023] KEHC 25697 (KLR) (Crim) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25697 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Miscellaneous Application E430 of 2023

LN Mutende, J

November 20, 2023

Between

John Wambua Nzuki

Applicant

and

Attorney General

1st Respondent

Inspector General of Police

2nd Respondent

Director of Criminal Prosecutions

3rd Respondent

Ruling

1. Through an application dated 9th November, 2023, the applicant seeks stay of execution of the Ruling delivered in Milimani Miscellaneous Criminal Case No. 15 of 2015 where the applicant faced extradition proceedings following a request for extradition by the Solicitor General of the Republic of Zambia brought to this country and later processed by the ODPP, the 3rd respondent herein.

2. The request was allowed by the trial magistrate as per the ruling of Honourable Onyina, Chief Magistrate delivered on 30th October, 2023.

3. The applicant also seeks bail/bond pending filing of an intended appeal on lenient terms.

4. The application is premised on grounds that the intended appeal has high chances of success; that the applicant stands to be extradited on 15th November, 2023 and unless stay is issued the application would be rendered nugatory and the appeal an academic process. That the application should be granted to avert a grave miscarriage of justice.

5. The applicant deponed an affidavit in support of the application where he deposes that his case has unusual and exceptional circumstances in that he is not a flight risk and that stay of the extradition would protect him. That he adhered to bond terms before the trial court, he is a single parent and that the children who are still minors lacked parental care during his detention.

6. Further, that he is neither a remandee or a convict and his incarceration at the police custody is for an indefinite period. That he cannot access medical care at the police cells.

7. Lastly, that it is not certain if the foreign court will consider the period he has spent in custody.

8. The applicant refers to his grounds of appeal listed in the depositions and draft petition of appeal annexed to the affidavit to argue that the appeal has high chances of success in that the decision was against the weight of evidence, the documents were not authenticated and that only copies were produced and the makers were not called. That the charge sheet was not brought and the prosecution failed to call crucial evidence.

9. The application is opposed by the 3rd Respondent who filed grounds of opposition dated 16th November, 2023, through Mary Magdalene Nduati, Senior Prosecution Counsel, where she stated that the application is misconceived for noncompliance with provisions of Section 354 of the Criminal Procedure Code and that the application is founded on misapprehension and/or misinterpretation of the law.

10. The allegation against the applicant is that he is to be indicted before the Lusaka District Subordinate Court for the offence of theft by Servant contrary to Section 278 of the Zambian Penal Code. The particulars of the charges were that, the applicant during his employment at Internet Bank in Zambia as head of Information Technology fraudulently transferred 13 Zambian Kwacha from Intermarket Bank suspense account. Additionally, it is stated that the applicant evaded arrest and has been in Kenya while his accomplice was tried and convicted on 95 counts.

11. The application was disposed through oral submissions. It is urged by the applicant that under section 7 (2) of the Extradition (Contagious and Foreign Countries) Act, the fugitive should be informed of the charges he will face but in his case no charge sheet has been availed to date and he does not know what he will be facing if he is taken to Zambia.

12. That regarding a warrant of arrest and evidence that the applicant was mentioned in a different case as the person who transferred money, the Investigating Officer from Zambia never testified although he had come to court.

13. That the applicant challenges the extradition process and urges that the ruling was unfair and this court has jurisdiction to safeguard the process by granting the appeal.

14. The 3rd Respondent submitted that the application is an abuse of court process made in ignorance of the law. That the applicant filed an application for habeas corpus where parties have filed submissions and has a mention date. That section 10 (2) of the Act provides that a fugitive shall not be surrendered if an application for habeas corpus is pending. That the law provides mechanisms where the application for habeas corpus is to be determined before the applicant is released. That Section 10 of the Act does not provide for appeal and it takes precedence.

15. That the applicant relies on section 354 of the Criminal Procedure Code but the proceedings were not brought under the Criminal Procedure Code and the person in court is a fugitive and not an accused person.

16. Further that the issues here have been made in the habeas corpus application and the applicant’s affidavit conceals material particulars that he filed an application for habeas corpus. That there are two applications relying on the same facts and before the same court which could lead to an embarrassing situation.

17. The prosecution argues that the proper Act is the Extradition (Commonwealth Countries) Act, cap 77 of the laws of Kenya and that the issue of bond does not arise.

18. That the magistrate found that the trial would be fair.

19. In response, the applicant’s counsel argued that the supreme court found that extradition proceedings are criminal in nature and it is wrong to say that the criminal procedure code does not apply.

20. That Chapter 77 of the laws of Kenya is subject to the Constitution and the applicant has liberty as a convicted person has a right to bail pending appeal. That whether the application for habeas corpus may proceed, the applicant reiterates that he may choose to abandon the application.

21. I have considered rival arguments. All extradition proceedings where facts relate to Commonwealth countries are subject to the Extradition (Commonwealth Countries) Act cap 77 of the Laws of. The preamble reads:…An Act of Parliament to make provision for the surrender by Kenya to other Commonwealth countries of persons accused or convicted of offences in those countries, to regulate the treatment of persons accused or convicted of offences in Kenya who are returned to Kenya from such countries; and for purposes incidental thereto and connected therewith.

22. Whereas article 50(2)(q) of the Constitution provide for the accused constitutional right to appeal or seek review to a higher court, it is trite that the court’s jurisdiction is legislated by statute. This brings into play section 7, 9 and 10 of the Extradition (Commonwealth Countries) Act. Section 7 (2) (3) of the Act provide that:(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.

23. The provision of the law refers to the Authority to proceed which was complied with when the request for extradition and warrant of arrest was presented before court and served on the applicant.

24. Section 9 of the Extradition (Commonwealth Countries) Act mentioned above provides for committal proceedings before a court of law.Section 9(3) provides:That the court shall have like jurisdiction and powers, as nearly as may be, as it has in a trial.Section 9 (5) provides that:where a fugitive arrested in pursuance of a provisional warrant is in custody and the court has received an authority to proceed in respect of a fugitive arrested, and it is satisfied, after hearing any evidence tendered in support of the request for the surrender or on behalf of the fugitive, that the offence to which the authority to proceed relates is an extradition offence, and if further satisfied -Where the fugitive is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed in Kenya; orThe court shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his surrender, but if the court is not so satisfied, or if the committal is so prohibited, the court shall discharge him from custody.

25. The section does not refer to a right to appeal from the order of the court.

26. The Criminal procedure code was enacted as:… Act of Parliament to make provision for the procedure to be followed in criminal cases.

27. Section 347 provides that(1)Save as is in this Part provided: -(a)Person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court; and(2)An appeal to the High Court may be on a matter of fact as well as on a matter of law.

28. The criminal procedure code refers to the statutory right of appeal against conviction, acquittal or sentence. The nature of proceedings under the Extradition Act applicable here do not lead to a conviction. In fact the magistrate court only carries out an inquisitorial exercise to determine if it is appropriate to subject the respondent to extradition.

29. Although the applicant’s right to appeal is bound by statute, where the right is not provided and statute is silent, the interpretation must be to give effect to the intention of statute which must also align with the constitution. The constitution provides for the general right to appeal.

30. The Extradition (Contiguous and Foreign Countries) Act, Chapter 76 of the Laws of Kenya, a similar statute governing extradition proceedings with same intention as the cap 77 applicable here provides under section 16(4) of the Act, that:“Without any prejudice to any application for directions in the nature of a writ of habeas corpus in respect of anything purporting to be done under Part III of this Act, an order or refusal to make an order of discharge under subsection (3) may be the subject of an appeal to the High Court."

31. In the case of Tanga Mundeke D. K. alias Bende alias Jean Claude alias Iboro Barodo vs Republic(1998) eKLR, where the High Court rejected the appeal, the Court of Appeal held that there was right of appeal from extradition orders which would lead to a second appeal. The court referred to the decision in Kunga v Republic (1995) E.A 151, Kneller J. as he then was, at 152 , held that:“Returning now to the Act, but still dealing with procedural matters, it will seem that this application for directions in the nature of a writ of habeas corpus appears available to John Benjamin Mule Kunga as well as the right to appeal from the order of the senior resident magistrate: s.16 (4) . . .An appeal would probably have been admitted by the judge and heard by two and then given rise to a right of appeal to the court of Appeal of East Africa: s. 361 of the Code."

32. As stated, no law has been referred to that limit the applicant’s right to appeal to this court.

33. It has also been argued that extradition proceedings are criminal proceedings by nature. In the case of Chrysanthus Barnabus Okemo & Another vs. Attorney General & 3others [2021] KESC 13 (KLR) Petition 14 of 2020, the Supreme court, by majority decision overturned the decision of the court of appeal finding that Extradition proceedings are not criminal proceedings but rather are sui generis bound by treatise and agreement and that they are brought under the Extradition act which is itself sui generis.

34. In this case, orders in issue emanate from the subordinate court and also proceedings which are bound by the Constitution with demand that the Accused right to fair trial be seen to be upheld. The right is listed among rights which are non derogable and which cannot be taken away.

35. On whether the filing of an application for habeas corpus removes the right to appeal, the application for habeas corpus is also a constitutional right which has been expressly facilitated in the Extradition Act.

36. Section 9 of the Act does not expressly provide that an appeal shall not be filed, but Section 10 recognizes that the court may in the process of determining habeas corpus sit in other jurisdictions over the issues.

37. There seems to be no overlap of jurisdictions considering that Article 165 as read with Article 50 of the Constitution; and, Section 347 of the Criminal Procedure Code provide for High court appellate jurisdiction. Article 24 of the Constitution and the provisions of Section 389 (1) of the Criminal Procedure Code and relevant Directions in the Nature of habeas corpus Rules, as read together with Section 10 refer to a distinguished jurisdiction where the court sits to enforce fundamental rights and freedoms. Under Section 10 the court may receive further evidence.

38. The court’s duty in an application for habeas corpus is to interrogate whether it would be unjust or oppressive to surrender the respondent. The appellate court’s duty is not cast in stone, it interrogates the decision to allow the request and overhaul the evidence. This is not available in the habeas corpus application.

39. On the application for stay of the warrant of surrender, Section 10 of the Extradition (Commonwealth countries) Act provides that:Where the applicant has filed an application habeas corpus, the warrant of surrender shall be suspended.

40. As correctly argued by the 3rd Respondent, Section 10 is the machinery provided by the Statute to stay or suspend the extradition.

41. Section 10 (b) of the Act particularly provides that the surrender becomes suspended (by operation of law) on filing and during the pendency of the application for habeas corpus. Conversely, the Constitution provides for the general right to appeal with possibility that orders may be stayed.

42. As stated, facts in both applications are similar and are pending before a court of concurrent jurisdiction. The intention in bringing them is similar in that the applicant seeks to stop and untimely impugn the process of extradition in both cases. It was submitted from the bar that he challenges the process in his appeal. He also depones in his affidavit:“That he is not certain if he will get fair trial before the foreign court and whether the period of custody would be considered”.

43. Section 10(3) of the Extradition Act provides that while the court has power to determine the proceedings before and order discharge from custody, the court also recognizes other jurisdictions on the same issue. It provides interalia that:"…on an application for habeas corpus, the High Court may, without prejudice to any other jurisdiction vested in it, order the fugitive to be discharged from custody if it appears to the High Court that…"

44. Also, in the case of Muriithi (Suing as the Legal Representative of the Estate of Mwangi Stephen Muriithi) vs. Janmohamed SC, (Suing as the Executrix of the Estate of Hon. Daniel Toroitich Arap Moi) Petition 41/2018 , [2023] KESC 61 (KLR) the supreme court held that:“The writ of habeas corpus, once granted or denied, could not operate as a bar to any further proceedings. The appellant had right to seek compensation after he is released from unlawful detention”.

45. This therefore brings us to the issue whether the application for bond pending appeal and stay is merited. The application for bond pending appeal must be merited and brought on strong and persuasive grounds, the applicant must prove that the appeal has overwhelming chances of success and whether there are exceptional circumstances that will move the court to grant the order.

46. The applicant has annexed to the application a copy of a draft petition of appeal. It was also submitted that he has an appeal number which has been admitted with directions taken. The substantial appeal is not on record and there is no explanation. If indeed it has been filed, the existence of a competent appeal would grant this court jurisdiction to determine an application for bond and where necessary stay execution of orders which would render the appeal nugatory.

47. Exceptional circumstances that the applicant is a single parent and that his children have been denied parental care have been put forth. Further that there is no medical facility at the police cells.

48. In the case of Daniel Dominic Karanja vs. Republic [1986] eKLR it was held by this Court that the most important issue here is if the appeal has such overwhelming chances of success that there is no justification for depriving the applicant of his liberty. The minor relevant considerations would be whether there are exceptional or unusual circumstances. The previous good character of the applicant and the hardship, if any, facing the wife and children of the applicant are not exceptional or unusual factors.Further that, “a solemn assertion by an applicant that he will not abscond if he is released is not sufficient ground, even with support of sureties, for releasing a convicted person on bail pending appeal.”

49. The court also found that the applicant had not been taken ill and that there exists medical facilities for prisoners in the country.

50. The exceptional grounds argued here are not persuasive, and there is no evidence that the applicant requires medical attention.

51. The applicant also argues that he is neither a convict or a remandee and therefore his incarceraton is exceptional.

52. In the case of Juma v Republic (Criminal Application E023 of 2023) [2023] KECA 1138 (KLR) (22 September, 2023) where the applicant filed an intended appeal against the decision to extradite him. The court of appeal found that the situation where the applicant, who was not a convict but was held at the police station for an indefinite period pending hearing and determination of his appeal fell within the 'exceptional and unusual circumstances.' The court found that the applicant had an arguable appeal.

53. In this case, the applicant’s retention is not outside the law or oppressive and is also not indefinite as urged.

54. Section 13(1) of the Extradition Act (CAP 77) provides that:1. A fugitive who is remanded or committed to custody under section 9 shall be committed to the like institution as a person charged with an offence before the Court.

55. The applicant’s incarceration was to be limited for a period of 15 days after which he would be extradited. The court would also issue relevant orders such that no vaccum would be created. The applicant’s contention that he might not get a fair trial in the foreign court and that the period of custody might not be considered is not exceptional or persuaive as it may be determined during the trial.

56. That notwithstanding, this court is a municipal court under the relevant treatise and it cannot interrogate the laws of the requesting State. It would be preemptive to determine whether a trial which is yet to begin would be fair and compliant. The applicant may argue this in his application for habeas corpus brought under Section 10 of the Act.

57. The question as whether the applicant’s grounds of appeal have chances of success may result into this court delving in what will be addressed in the application for habeas corpus, therefore, I decline to venture into it.

58. From the foregoing, the prayer for stay of execution of the warrant of surrender is unmerited as it is brought in abuse of the court process considering that it is indistinguishable with the substantive issue in Miscellaneous Case No. 418/23 which preceded this application.

59. Therefore, the application is hereby dismissed.

60. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI,THIS 20TH DAY OF NOVEMBER, 2023. L. N. MUTENDEJUDGE