Extradition (Contiguous and Foreign Countries) Act

The Act may be cited as the Extradition (Contiguous and Foreign Countries) Act.

Jurisdiction: Kenya
Instrument: Act or statute
Citation: Cap. 76
Version: 15 Sept 2023
Language: en
Official source: View official record ↗

Source attribution: Source: Kenya Law

Statute overview

About this statute

The Act may be cited as the Extradition (Contiguous and Foreign Countries) Act. Section 2 provides definitions (including "Central Authority", "extradition crime", "fugitive criminal", and "magistrate") and gives magistrates the power to order persons arrested under this Act to be brought before a magistrate with jurisdiction, to remand or admit them to bail. A fugitive criminal may consent to be extradited to a requesting State without formal extradition proceedings; if consenting they must be told their rights and legal consequences, may renounce the rule of speciality, the consent (and any renunciation) is recorded by a magistrate and may not be revoked, a copy is sent to the Central Authority for surrender arrangements, they have the opportunity to seek independent legal advice and an interpreter at no cost if needed, the consent must outline the extraditable charges and be witnessed by an adult of sound mind, and “consent” is defined as an express, unequivocal, free, specific and informed indication by statement or clear affirmative action. Discharge of fugitive criminal upon application made to him by or on behalf of the criminal; The Cabinet Secretary may, by order published in the Gazette, declare this Part applies to a non-Commonwealth country with which an agreement exists; such orders must embody the agreement's terms, must not outlast the agreement, and must be laid before the National Assembly.

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Provisions of Extradition (Contiguous and Foreign Countries) Act

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Part I

PRELIMINARY

1
PRELIMINARY - 1. Short title
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The Act may be cited as the Extradition (Contiguous and Foreign Countries) Act.

Section 1. Short title Section This Act may be cited as the Extradition (Contiguous and Foreign Countries) Act. [Act No. 65 of 1968 , s. 19.]
2
PRELIMINARY - 2. Interpretation
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Section 2 provides definitions (including "Central Authority", "extradition crime", "fugitive criminal", and "magistrate") and gives magistrates the power to order persons arrested under this Act to be brought before a magistrate with jurisdiction, to remand or admit them to bail.

Section 2. Interpretation Section 2(1) In this Act, unless the context otherwise requires— "Central Authority" has the meaning assigned to it under section 2 of the Mutual Legal Assistance Act ( Cap. 75A ); "conviction" and "convicted" do not include or refer to a conviction which under the law of some other country is a conviction for contumacy, but the term "accused person" includes a person convicted of contumacy; "extradition crime" means a crime which, if committed within the jurisdiction of Kenya, would be one of the crimes described in the Schedule to this Act; "fugitive criminal" means any person accused or convicted of an extradition crime ("a crime which, if committed within the jurisdiction of Kenya, would be one of the crimes described in the Schedule to this Act;") committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime ("a crime which, if committed within the jurisdiction of Kenya, would be one of the crimes described in the Schedule to this Act;") committed within the jurisdiction of that country; "magistrate" means a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate; "reciprocal backing of warrants" means warrants from contracting nations issued in accordance with the contracting agreement; "warrant" in the case of any other country includes any judicial document authorizing the arrest of a person accused or convicted of a crime. Section 2(2) If any fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") or other person is arrested in pursuance of the provisions of this Act and brought before a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") who has no power to exercise jurisdiction under this Act, that magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall have power to order such person to be brought before some magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") having such jurisdiction, and to remand or admit such person to bail, and effect shall be given to any such order. [Act No. 22 of 1987 , Sch., Act No. 2 of 2002 , Sch., Act No. 19 of 2014 , s. 22, Act No. 10 of 2023 , Sch.]

Part II

SURRENDER OF FUGITIVE CRIMINALS

10
SURRENDER OF FUGITIVE CRIMINALS - 10. Discharge offugitive criminal
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Discharge of fugitive criminal upon application made to him by or on behalf of the criminal;

Section 10. Discharge offugitive criminal Section upon application made to him by or on behalf of the criminal; and
10A
SURRENDER OF FUGITIVE CRIMINALS - 10A. Simplified extradition
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A fugitive criminal may consent to be extradited to a requesting State without formal extradition proceedings; if consenting they must be told their rights and legal consequences, may renounce the rule of speciality, the consent (and any renunciation) is recorded by a magistrate and may not be revoked, a copy is sent to the Central Authority for surrender arrangements, they have the opportunity to seek independent legal advice and an interpreter at no cost if needed, the consent must outline the extraditable charges and be witnessed by an adult of sound mind, and “consent” is defined as an express, unequivocal, free, specific and informed indication by statement or clear affirmative action.

Section 10A. Simplified extradition Section 10A(1) A fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") being sought by a requesting State may consent to be extradited to that requesting State without conducting formal extradition proceedings. Section 10A(2) Where a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") consents to be extradited under subsection (1), that person shall be advised of his or her rights and the legal consequences of the simplified extradition procedure and may expressly renounce his or her entitlement to the rule of speciality. Section 10A(3) The consent and, where appropriate, the renunciation of the entitlement to the rule of speciality shall be recorded by a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") and may not be revoked. Section 10A(4) A copy of the consent referred to under subsection (3) shall be transmitted to the Central Authority with a view to arranging his or her surrender to the requesting State. Section 10A(5)(a) the opportunity to seek independent legal advice; and Section 10A(5)(b) an interpreter at no cost if the fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") is unable to understand the language used. Section 10A(6)(a) outline the extraditable charges that it relates to; and Section 10A(6)(b) be witnessed by an adult of sound mind. Section 10A(7) For the purposes of this section “consent” means the manifestation of express, unequivocal, free, specific and informed indication of the fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") ’s wishes by a statement or by a clear affirmative action, signifying agreement to be extradited to the requesting state. [Act No. 10 of 2023 , Sch.]
3
SURRENDER OF FUGITIVE CRIMINALS - 3. Application of Part
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The Cabinet Secretary may, by order published in the Gazette, declare this Part applies to a non-Commonwealth country with which an agreement exists; such orders must embody the agreement's terms, must not outlast the agreement, and must be laid before the National Assembly.

Section 3. Application of Part Section 3(1) Where an agreement has been made with any country other than a designated Commonwealth country within the meaning of the Extradition (Commonwealth Countries) Act ( Cap. 77 ), with respect to the surrender to that country of any fugitive criminal, the Cabinet Secretary may, by order published in the Gazette , declare that this Part of this Act shall apply in the case of that country subject to such conditions, exceptions and qualifications as may be specified in the order, and this Part shall apply accordingly. Section 3(2) An order made under this section shall recite or embody the terms of the agreement and shall not remain in force for any longer period than the agreement. Section 3(3) Every order made under this section shall be laid before the National Assembly. [Act No. 65 of 1968 , s. 19, Act No. 18 of 2018 , Sch.]
4
SURRENDER OF FUGITIVE CRIMINALS - 4. Liability of fugitive criminals to surrender
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Establishes liability of fugitive criminals to surrender, regardless of whether the crime was committed before or after commencement or application of this Part of the Act to that country.

Section 4. Liability of fugitive criminals to surrender Section whether the crime in respect of which the surrender is sought was committed before or after the commencement of this Act or the application of this Part of this Act to that country; and
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SURRENDER OF FUGITIVE CRIMINALS - 5. Requisition for surrender
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Diplomatic or consular officers must send a requisition to the Cabinet Secretary to request surrender; the Cabinet Secretary may notify a magistrate to issue an arrest warrant, may refuse if the offence is political, and may order discharge of a fugitive criminal.

Section 5. Requisition for surrender Section 5(1) A requisition for the surrender of a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") of any country who is in or suspected of being in Kenya shall be made to the Cabinet Secretary by a diplomatic representative or consular officer of that country and, upon receipt of such requisition, the Cabinet Secretary may, by order under his hand, signify to a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") that a requisition has been made and require the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") to issue his warrant for the arrest and detention of the fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") . Section 5(2) If the Cabinet Secretary is of the opinion that the offence is one of a political character he may refuse to make an order and may also at any time order a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") accused or convicted of such offence to be discharged from custody.
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SURRENDER OF FUGITIVE CRIMINALS - 6. Issue ofwarrant
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Magistrates issuing warrants without the Cabinet Secretary's order must promptly report the issue and supporting material to the Cabinet Secretary; the Cabinet Secretary may cancel such warrants and order discharge; magistrates must discharge detainees arrested under such warrants unless a surrender requisition order is received within a reasonable time.

Section 6. Issue ofwarrant Section 6(1)(a) on the receipt of the order of the Cabinet Secretary and on such evidence as would, in the opinion of the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") , justify the issue of the warrant if the crime had been committed or the criminal convicted in Kenya; or Section 6(1)(b) on such information or complaint and such evidence or after such proceedings as would, in the opinion of the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") , justify the issue of a warrant if the crime had been committed or the criminal convicted in Kenya. Section 6(2) A magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") issuing a warrant under this section without an order from the Cabinet Secretary shall forthwith send a report of the fact of the issue, together with the evidence and information or complaint or certified copies thereof, to the Cabinet Secretary, who may order the warrant to be cancelled and the person who has been arrested and detained on the warrant to be discharged. Section 6(3) A fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") when arrested on a warrant under this section shall be brought before a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") as soon as possible. Section 6(4) A fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") arrested and detained on a warrant issued without the order of the Cabinet Secretary shall be discharged by the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") unless the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") , within such reasonable time as, with reference to the circumstances of the case, he may fix, receives from the Cabinet Secretary an order signifying that a requisition has been made for the surrender of the criminal. Section 6(5) The warrant of a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") issued in pursuance of this Part of this Act may be executed in any part of Kenya in the same manner as if it had been originally issued or subsequently endorsed by a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") having jurisdiction in the place where it is executed.
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SURRENDER OF FUGITIVE CRIMINALS - 7. Hearing of case and evidence
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When a fugitive criminal is brought before a magistrate, the magistrate must hear the case with the same jurisdiction and powers as in a trial before a subordinate court and must receive any evidence to show applicability of section 16 or that the offence is not an extradition crime.

Section 7. Hearing of case and evidence Section 7(1) When a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") is brought before a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") , the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall hear the case in the same manner and have the same jurisdiction and powers, as nearly as may be, as in a trial before a subordinate court. Section 7(2) The magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall receive any evidence which may be tendered to show that the case is one to which the relevant provisions of section 16 apply or that the crime of which the prisoner is accused is not an extradition crime. [Act No. 13 of 1982 , 2nd Sch.]
8
SURRENDER OF FUGITIVE CRIMINALS - 8. Committal or discharge of prisoner
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Magistrate must commit a fugitive criminal to prison to await a surrender warrant if authenticated foreign arrest warrant and evidence justify committal; otherwise discharge.

Section 8. Committal or discharge of prisoner Section 8(1) In the case of a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") accused of an extradition crime ("a crime which, if committed within the jurisdiction of Kenya, would be one of the crimes described in the Schedule to this Act;") , if the foreign warrant authorizing the arrest of the criminal is duly authenticated, and such evidence is produced as, subject to the provisions of this Act, would according to the law of Kenya, justify the committal for trial of the prisoner if the crime of which he is accused was committed in Kenya, the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall commit him to prison, but otherwise shall order him to be discharged. Section 8(2) In the case of a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") alleged to have been convicted of an extradition crime ("a crime which, if committed within the jurisdiction of Kenya, would be one of the crimes described in the Schedule to this Act;") , if such evidence is produced as, subject to the provisions of this Act would, according to the law of Kenya, prove that the prisoner was convicted of such crime, the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall commit him to prison, but otherwise shall order him to be discharged. Section 8(3) If the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") commits such criminal to prison, he shall commit him to prison to await the warrant of the Cabinet Secretary for his surrender; and the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall forthwith send to the Cabinet Secretary a certificate of the committal and such report on the case as he may think fit.
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SURRENDER OF FUGITIVE CRIMINALS - 9. Surrender offugitive criminal
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Magistrates must inform a fugitive criminal that surrender will not occur until fifteen days have expired and that the criminal may apply for habeas corpus; after the fifteen days (or after court decision on habeas corpus or any further period allowed by the Cabinet Secretary) the Cabinet Secretary may, by warrant, order surrender; persons named in the warrant may receive, hold and convey the fugitive criminal.

Section 9. Surrender offugitive criminal Section 9(1) Whenever a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") commits a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") to prison under this Part of this Act he shall inform the criminal that he will not be surrendered until after the expiration of fifteen days and that he has a right to apply for the issue of directions in the nature of habeas corpus . Section 9(2) Upon the expiration of the period of fifteen days, or, if directions in the nature of habeas corpus are issued, after the decision of the court upon the return to the directions, as the case may be, or after such further period as may be allowed in either case by the Cabinet Secretary, the Cabinet Secretary may by warrant under his hand order the fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") , if not set at liberty on the decision of the court, to be surrendered to such person as is in his opinion, duly authorized to receive the fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") by the country from which the requisition for the surrender proceeded, and the fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") shall be surrendered accordingly. Section 9(3) Any person to whom such warrant is directed, and the person so authorized as aforesaid, may receive, hold in custody and convey into the jurisdiction of that country the criminal mentioned in the warrant .

Part III

RECIPROCAL BACKING OF WARRANTS

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RECIPROCAL BACKING OF WARRANTS - 11. Application of Part
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If the Cabinet Secretary is satisfied that a contiguous (non-designated-Commonwealth) country has or will make reciprocal provision for backing and executing Kenyan warrants, he may, by order published in the Gazette, declare this Part applies to that country subject to conditions, exceptions and qualifications; every such order must be laid before the National Assembly.

Section 11. Application of Part Section 11(1) Where the Cabinet Secretary is satisfied that reciprocal provision has been or will be made by or under the law of any contiguous country other than a designated Commonwealth country within the meaning of the Extradition (Commonwealth Countries) Act ( Cap. 77 ), for the backing of warrants issued in Kenya and their execution in that country and that it is appropriate to do so, he may, by order published in the Gazette , declare that this Part of this Act shall apply in the case of that country subject to such conditions, exceptions and qualifications as may be specified in the order, and this Part shall apply accordingly. Section 11(2) Every order made under this section shall be laid before the National Assembly. [Act No. 65 of 1968 , s. 19, Act No. 18 of 2018 , Sch.]
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RECIPROCAL BACKING OF WARRANTS - 12. Backing of warrants issued in another country
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A magistrate may endorse a foreign arrest warrant for a person in or coming to Kenya if satisfied the warrant was lawfully issued; an endorsed warrant must be signed and authorises named persons and police to arrest and bring the person before a magistrate.

Section 12. Backing of warrants issued in another country Section 12(1) Where a warrant has been issued in a country to which this Part of this Act applies for the arrest of a person accused of an offence punishable by law in that country and he is or is suspected of being in or on the way to Kenya, a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") may, if satisfied that the warrant was issued by a person having lawful authority to issue it, endorse such warrant . Section 12(2) An endorsement of a warrant shall be signed by the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") and shall authorize all or any of the persons named in the endorsement and every police officer to execute the warrant by arresting the person named in it and bringing him before a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") . Section 12(3) A warrant endorsed under this section shall be sufficient authority to arrest, within the jurisdiction of the endorsing magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") , the person named in the warrant and to bring him before a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") . Section 12(4) This Part of this Act shall apply whatever the date of the warrant and whether the offence is alleged to have been committed before or after the commencement of this Act or the application of this Part of this Act to the country concerned.
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RECIPROCAL BACKING OF WARRANTS - 13. Provisionalwarrant
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A magistrate may issue a provisional warrant for arrest even if the original warrant has not yet been endorsed, where in his opinion the information and circumstances would justify a warrant.

Section 13. Provisionalwarrant Section 13(1) Notwithstanding that a warrant for the arrest of any person issued in a country to which this Part of this Act applies may not yet have been endorsed in pursuance of this Part, a magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") may issue a provisional warrant for the arrest of such person on such information and under such circumstances as would, in his opinion, justify the issue of a warrant if the offence of which that person is accused were an offence punishable by the law of Kenya and had been committed within his jurisdiction; and such warrant may be endorsed in the manner provided in the Criminal Procedure Code ( Cap. 75 ), and may be executed accordingly. Section 13(2)(a) no order may be made under section 14 for his return to the country in which the original warrant was issued unless the original warrant is produced and endorsed in accordance with this Part; and Section 13(2)(b) he shall be discharged unless the original warrant is produced and endorsed within such time as the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") thinks reasonable in the circumstances.
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RECIPROCAL BACKING OF WARRANTS - 14. Return of prisoner
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Allows persons named in a warrant and authorized persons to receive, hold and convey the prisoner; grants magistrates the same powers (including remand and bail) as for persons arrested under a warrant.

Section 14. Return of prisoner Section 14(1)(a) that the warrant is duly authenticated as directed by this Act and was issued by a person having lawful authority to issue the same; and Section 14(1)(b) by evidence on oath, that the prisoner is the person named or otherwise described in the warrant , order the prisoner to be returned to the country in which the original warrant was issued, and for that purpose to be delivered into the custody of the persons to whom the warrant is directed or any one or more of them and to be held in custody and conveyed into that country. Section 14(2) A person to whom the warrant is directed and the person so authorized may receive, hold in custody and convey into the jurisdiction of that country the prisoner mentioned in the warrant . Section 14(3) A magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall, so far as is requisite for the exercise of the powers of this section, have the same power, including the power to remand and admit to bail a prisoner, as he has in the case of a person arrested under a warrant issued by him. Section 14(4) In proceedings under this section, the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall receive any evidence which may be tendered to show that the case is one to which the relevant provisions of section 16 apply.
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RECIPROCAL BACKING OF WARRANTS - 15. Discharge of prisoner
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The Cabinet Secretary may order that a person arrested under this Part be discharged from custody if the Cabinet Secretary considers the offence to be political in character.

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

Part IV

MISCELLANEOUS PROVISIONS RELATING TO SURRENDER AND RETURN

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MISCELLANEOUS PROVISIONS RELATING TO SURRENDER AND RETURN - 16. Restriction on surrender or return
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Section 16 restricts surrender or return where the offence is political or where a court or the Cabinet Secretary finds the requisition was made to try or punish for a political offence; magistrates may discharge or delay return of prisoners in certain circumstances; there is a 15‑day waiting rule for committal to prison to await surrender and protections against post‑surrender detention or trial except as provided by the receiving country's law or agreement.

Section 16. Restriction on surrender or return Section 16(1)(a) if the offence in respect of which his surrender is required, or the offence specified in the warrant , as the case may be, is one of a political character or if it appears to a court or the Cabinet Secretary that the requisition for the surrender, or the application for endorsement of a warrant and the return of the person named therein, has in fact been made with a view to try or to punish him for an offence of a political character: or Section 16(1)(b) if the fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") or the person arrested is accused of some offence triable by a court in Kenya or is undergoing sentence under any conviction in Kenya, until after he has been discharged, whether by acquittal or on the expiration of his sentence or otherwise. Section 16(2)(a) unless provision is made by the law of the country to which he is to be surrendered, or by agreement, that the fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") shall not, unless he has been restored or had an opportunity of returning to Kenya, be detained or tried in that country for any offence committed before his surrender other than an extradition crime ("a crime which, if committed within the jurisdiction of Kenya, would be one of the crimes described in the Schedule to this Act;") proved by the facts on which the surrender is grounded; or Section 16(2)(b) until the expiration of fifteen days from the date of his being committed to prison to await his surrender. Section 16(3) Where the return of a prisoner is sought or arranged under Part III, and it appears to the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") that by reason of the trivial nature of the case, or by reason of the application for the return of the prisoner not being made in good faith in the interests of justice, or otherwise, it would, having regard to the distance, to the facilities of communication and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the prisoner either at all or until the expiration of a certain period, the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") may discharge the prisoner either absolutely or on bail or order that he shall not be returned until after the expiration of the period named in the order or may make such other order in the matter as the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") thinks proper. Section 16(4) Without prejudice to any application for directions in the nature of a writ of habeas corpus in respect of anything purporting to be done under 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.
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MISCELLANEOUS PROVISIONS RELATING TO SURRENDER AND RETURN - 17. Evidence
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Depositions, authenticated copies and official certificates or judicial documents stating convictions may be received as evidence in proceedings under this Act; the provision also addresses judicial notice of foreign law when an official certified copy is produced and certified by the Cabinet Secretary responsible for foreign affairs or a diplomatic/consular officer, and allows a certificate by such officials to be received as prima facie evidence of agreements referred to earlier.

Section 17. Evidence Section 17(1) Depositions or statements on oath or affirmation taken in the country concerned and copies of the original depositions or statements and official certificates of or judicial documents stating the fact of conviction may, if duly authenticated, be received in evidence in any proceedings under this Act. Section 17(2)(a) shall take judicial notice of any law of a country by which the surrender of a fugitive criminal ("any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Kenya, and a reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that country;") is required which makes provision for any such matter as is referred to in section 16 (2)(a), if an official copy of such law is produced and certified by the Cabinet Secretary responsible for foreign affairs or a diplomatic representative or consular officer of that country to be in force; Section 17(2)(b) may receive as prima facie evidence of any such agreement as is referred to in the said paragraph a certificate to that effect by such Cabinet Secretary or diplomatic representative or consular officer aforesaid.
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MISCELLANEOUS PROVISIONS RELATING TO SURRENDER AND RETURN - 18. Authorization of warrants and depositions
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All courts and magistrates must take judicial notice of the specified official seal and signature and admit documents so authenticated in evidence without further proof.

Section 18. Authorization of warrants and depositions Section 18(1)(a) if the warrant purports to be signed by a judge, magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") or officer of the country where it was issued; or Section 18(1)(b) if the depositions or statements or the copies thereof purport to be certified under the hand of a judge, magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") or officer of the country where they were taken to be the original depositions or statements or to be true copies thereof, as the case may require; or Section 18(1)(c) in a case to which Part II of this Act applies, by being sealed with the official seal of the Cabinet Secretary for the time being responsible for legal affairs, or some other Cabinet Secretary of State, of the country concerned; or Section 18(1)(c)(i) in a case to which Part II of this Act applies, by being sealed with the official seal of the Cabinet Secretary for the time being responsible for legal affairs, or some other Cabinet Secretary of State, of the country concerned; or Section 18(1)(c)(ii) in a case to which Part III of this Act applies, by sealing in the manner aforesaid or by the signature of the Attorney-General, Solicitor- General or Director of Public Prosecutions of the country concerned. Section 18(2) All courts and magistrates shall take judicial notice of the official seal and signature referred to in paragraphs (i) and (ii) of subsection (1) and shall admit any such document so authenticated in evidence without further proof.
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MISCELLANEOUS PROVISIONS RELATING TO SURRENDER AND RETURN - 19. Escape
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If a prisoner escapes from custody under this Act, he may be retaken in the same manner as a person accused of a crime may be retaken upon an escape.

Section 19. Escape Section If a prisoner escapes, by breach of prison or otherwise, out of the custody of a person acting under a warrant issued or endorsed in pursuance of this Act or out of the custody of a person to whose custody he has been committed in accordance with this Act, he may be retaken in the same manner as a person accused of a crime against the law of Kenya may be retaken upon an escape.
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MISCELLANEOUS PROVISIONS RELATING TO SURRENDER AND RETURN - 20. Search warrants
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If an arrest warrant is endorsed under Part III, the magistrate has the same power to issue a search warrant for property alleged to be stolen or otherwise the subject of the offence.

Section 20. Search warrants Section Where a warrant for the arrest of a person accused of an offence has been endorsed in pursuance of Part III of this Act, the magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") shall have the same power of issuing a warrant to search for any property alleged to be stolen or otherwise unlawfully taken or obtained by such person, or otherwise to be the subject of such offence, as that magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") would have if the property had been stolen or otherwise unlawfully taken or obtained, or the offence had been committed, wholly within the jurisdiction of such magistrate ("a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate;") .
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MISCELLANEOUS PROVISIONS RELATING TO SURRENDER AND RETURN - 21. Rules
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The Chief Justice may make rules of court for appeals to the High Court under this Act; the Cabinet Secretary may prescribe forms for the purposes of this Act.

Section 21. Rules Section 21(1) The Chief Justice may make rules of court for appeals to the High Court under this Act. Section 21(2) The Cabinet Secretary may prescribing forms for the purposes of this Act, and forms so prescribed or forms as near thereto as the circumstances permit may be used in all matters to which such forms refer.
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MISCELLANEOUS PROVISIONS RELATING TO SURRENDER AND RETURN - 22. Declaration of application
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The Cabinet Secretary may, by order published in the Gazette and from time to time, declare the countries to which Part II and Part III of this Act apply.

Section 22. Declaration of application Section The Cabinet Secretary may from time to time, by order published in the Gazette , declare the countries to which Part II and Part III of this Act apply (including the countries to which Part II applies under section 27 of this Act and, subject to any later order providing for the discontinuance of such application, the declaration shall be conclusive as to the application of the relevant Part to countries to which it relates. [Act No. 9 of 1967 , Sch.]
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MISCELLANEOUS PROVISIONS RELATING TO SURRENDER AND RETURN - 23. Discontinuance
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The Cabinet Secretary may, by order published in the Gazette, discontinue applying the relevant Part of the Act to a country when reciprocal provisions or an agreement with that country cease to operate.

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

Part V

TAKING OF EVIDENCE FOR CRIMINAL TRIALS IN OTHER COUNTRIES

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TAKING OF EVIDENCE FOR CRIMINAL TRIALS IN OTHER COUNTRIES - 24. Obtaining evidence in Kenya
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Testimony of any witness in relation to a criminal matter pending in a foreign court or tribunal may be obtained in Kenya in the same manner as for civil matters, but the section does not apply to criminal matters of a political nature.

Section 24. Obtaining evidence in Kenya Section 24(1) The testimony of any witness may be obtained in relation to any criminal matter pending in any court or tribunal in any other country in like manner as it may be obtained in relation to any civil matter under any rules of court or any enactment for the time being in force in that part of Kenya in which the testimony is to be taken for the taking of evidence in relation to civil and commercial matters pending before the tribunals of other countries. Section 24(2) Nothing in this section shall apply in the case of any criminal matter of a political nature.
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TAKING OF EVIDENCE FOR CRIMINAL TRIALS IN OTHER COUNTRIES - 25. Taking of evidence in Kenya for foreign criminal matters
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The Cabinet Secretary may order a magistrate to take evidence for foreign criminal matters; on receiving such an order the magistrate must record the evidence in writing, certify the deposition, and send it to the Cabinet Secretary.

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

Part VI

CRIMINALS SURRENDERED TO KENYA

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CRIMINALS SURRENDERED TO KENYA - 26. Trial of criminal surrendered
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A person surrendered to Kenya shall not be triable or tried for offences committed before surrender, until restored or given opportunity to return, except for crimes proved by the facts on which the surrender is grounded (subject to subsection (2)).

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

Part VII

TRANSITIONAL, REPEAL AND APPLICATION

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TRANSITIONAL, REPEAL AND APPLICATION - 27. Transitional
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Preserves prior application of the Fugitive Offenders Act, 1881 and the Fugitive Criminals Surrender Act as they applied immediately before this Act commenced, and provides that surrender to those countries shall not be refused on specified grounds unless the Cabinet Secretary makes an order.

Section 27. Transitional Section 27(1)(a) a country to which Part I of the Fugitive Offenders Act, 1881 (No. 44 and 45 Vict., Cap. 69) (as in force in Kenya) applied immediately before the commencement of this Act; and Section 27(1)(b) a country to which the Fugitive Criminals Surrender Act ( Cap. 77 ) (Repealed) applied immediately before the commencement of this Act, Section 27(2)(a) notwithstanding that no agreement has been made with that country or that the terms of an agreement are not embodied in any order; and Section 27(2)(a)(i) notwithstanding that no agreement has been made with that country or that the terms of an agreement are not embodied in any order; and Section 27(2)(a)(ii) notwithstanding that no such provision or agreement as is referred to in section 16 (2)(a) of this Act is in force in or has been made with that country, and, unless provision is made by the Cabinet Secretary in an order under this section applying that paragraph to any such country, the surrender of a fugitive criminal to that country shall not be refused on the grounds set out in that paragraph; Section 27(2)(b) in the case of a country to which subsection (1)(b) of this section refers, as if the terms of the relevant agreement and the conditions, exceptions and qualifications specified in any order made under the Fugitive Criminals Surrender Act and in force immediately before the commencement of this Act, had been specified by order made under this Act.
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TRANSITIONAL, REPEAL AND APPLICATION - 28. Repeals and saving
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Repeals specified extradition and fugitive-offender Acts, preserves continuation of pending surrender or return proceedings under corresponding provisions of this Act.

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

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