INTRODUCTION
1. The appeal arises from a decision of the Magistrate’s Court ordering the extradition and surrender of the Appellant to the United States of America where he is wanted in connection with drug related offences.
2. The appellant is an Afghanistan National who was arrested in a Nairobi Hotel where he had checked in as a guest.
3. He was arrested pursuant to an Extradition request made to the Government of Kenya by the United States of America Government.
4. The appellant is a wanted fugitive in the United States of America in connection with drugs related offences.
5. The matter was commenced before the Chief magistrate’s court by the Office of the Director of Public Prosecutions by way of a Notice of Motion seeking an order to have the appellant extradited from the country to go and face trial in the United States of America.
6. The DPP had approached the lower court seeking the following orders;-
a). that pending the hearing and determination of the application, the Honourable Court be pleased to issue an order for the continued detention of ABDUL ZAHIR QADEER a.k.a HAJI ABDUL ZAHIR.
b). that the warrant of arrest issued by the United States District Court for the Southern District of New York in the United States of America on 25th March 2025 be endorsed in accordance with, and in the manner authorized by the law.
c). that the Appellant be ordered to be returned and or conveyed out of Kenya and surrendered to the USA to face charges for the offences of Narcotics Importation Conspiracy under 21 U.S.C 963, Possession of machineguns and destructive devices under 18 U.S.C 924 (c), and conspiracy to possess machineguns and destructive devices under 18 U.S.C 924 (o) for which he was formally charged by indictment vide Case No. 1:2025/28845.
7. The Extradition magistrate after going through the Extradition request found that the request met the necessary threshold to order the removal of the appellant through an Extradition order and be surrendered to the United States of America authorities to face trial in the U.S.
PETITION OF APPEAL
8. T he Appellant, dissatisfied with the Ruling and Order of the Hon. Ben Mark Ekhubi (SPM) delivered on 13th May, 2025 at Milimani Chief Magistrate's Court appealed to this Honourable Court against the said R uling on the following ground s:-
a) The Learned Magistrate erred in law by endorsing the extradition request and granting the surrender of the Appellant to the United States of America despite compelling evidence showing that the charges against the Appellant are politically motivated, contrary to Section 16 of the Extradition (Contiguous and Foreign Countries) Act, Cap 76 Laws of Kenya.
b) The Learned Magistrate erred in law in finding that a prima facie case had been established against the Appellant without adequately considering the political context and international relations between Afghanistan and the United States which formed the basis of the Appellant's persecution.
c) The Learned Magistrate erred in law by endorsing the Warrant of Arrest issued by the US District Court for the Southern District of New York yet the evidence on record supporting the said indictment is materially feeble, improbable and uncorroborated to support the alleged charges.
d) The Learned Magistrate misapprehended and misapplied the doctrine of specialty and non-refoulement under international law and Article 25 of the Constitution of Kenya, thereby failing to protect the Appellant's fundamental rights and freedoms.
e) The Learned Magistrate erred in law by failing to find that the offences for which the Appellant is sought, though not political, but are politically motivated and thus non-extraditable under Section 16 (1) (a) of the Extradition (Contiguous and Foreign Countries) Act.
f) The Learned Magistrate erred in law by treating as admissible the evidence contained in foreign indictments and affidavits without critical scrutiny, contrary to the principles of fair trial and natural justice enshrined under Article 50 of the Constitution.
g) The Learned Magistrate erred by disregarding the Appellant's sworn Replying Affidavit which demonstrated the Appellant's political background, and consistent denunciation of U.S. foreign policy as sufficient proof of persecution, thereby failing to appreciate the political dimension of the extradition request.
h) The Learned Magistrate erred in law by failing to apply the legal principles laid out in Republic v Mutugu & 5 others (Criminal Case E014 of 2024) [2024] KEHC 7548 (KLR) , which delineate the limits of evidentiary thresholds in extradition proceedings, especially where political bias is alleged.
i) The Learned Magistrate erred by failing to appreciate that the Appellant's arrest and continued detention are being used as a tool to silence political dissent, in contravention of international norms against politically motivated prosecutions.
j) The Learned Magistrate failed to adequately analyze the evidentiary gaps, inconsistencies, and questionable credibility of the confidential informant (CS-1), who forms the linchpin of the prosecution case, thus rendering the decision unsafe.
k) The Learned Magistrate erred in law by concluding that mere existence of an extradition treaty and matching offences under Kenyan law was sufficient basis for surrender, without proper analysis of safeguards afforded under international human rights law.
9. At the hearing of the appeal Mr Oonge counsel appearing for the appellant, indicated to this court that he was only interested in pursuing the ground that there is no legal basis for the request for extradition of the appellant to the USA since there is no Extradition treaty between Kenya and the USA.
10. The appellant’s counsel told this court that in the event that this court agrees with him that there was no legal basis for the Order of Extradition, the court should immediately quash the order and set his client free since he had entered in the country legally.
11. The appeal therefore proceeded on that understanding between the parties.
APPELLANT’S SUBMISSIONS
12. Counsel for the appellant relied on the written submissions he had filed on behalf of the appellant, an Afghan national currently detained in Kenya and the subject of an extradition request by the Government of the United States of America.
13. The submissions by the appellant wer e in support o f the Petition of Appeal dated 19 May 2025 and amended on 13 October 2025 .
14. Counsel submitted that the intended extradition of the Appellant from the Republic of Kenya to the United States of America is unlawful and impermissible. He argued that the purported legal basis relied upon by the Respondent is the 1931 Extradition Treaty between the United States and Great Britain .
15. According to Counsel th at treaty is no longer in force and cannot be relied upon as a valid legal basis for the extradition of any person from Kenya to the United States .
16. Counsel further submitted that there being no bilateral extradition treaty between Kenya and the United States , no extradition would be permissible until such time that the two states enter into a bilateral treaty for that purpose.
17. The Appellant's counsel contended that as it is today, Kenya cannot extradite anyone to the United States irrespective of the alleged offence.
18. Counsel further argued that there is no bilateral extradition treaty between Afghanistan and Kenya and that there is similarly no extradition treaty between Afghanistan and the United States thus complicating the matter further considering that the Appellant is an Afghan National arrested within the territory of Kenya.
19. Further, Mr Oonge Advocate submitted that Kenyan domestic law prohibits extradition in the absence of a valid treaty or extradition arrangement thus the order by the learned Honorable Magistrate should be quashed.
20. According to Counsel for the Appellant, the Diplomatic Note No. 0653 issued by the Embassy of the United States dated 14 April 2025 together with the Authority to Proceed dated 16 April 2025 issued by the Director of Public Prosecutions Kenya cannot constitute a lawful basis for extradition of the subject in the absence of a valid treaty.
21. Counsel urged this court to find that if the extradition was to be allowed to proceed as ordered by the learned Honourable Magistrate, it would amount to an unlawful deprivation of liberty of the appellant and a violation of constitutional and international human rights protections of the Appellant.
22. Counsel addressed the treaty relationship between the United States and Kenya and submitted that the 1931 Extradition Treaty was concluded between the United States and the United Kingdom on 22 December 1931 and provided for the reciprocal surrender of fugitives between the two countries and their territories including colonial Kenya. The Treaty according to the appellant remained the sole basis upon which Kenya could conduct an extradition process between herself and the United States of America.
23. The Treaty having lapsed, the appellant took the view that there was a lacuna in law since Kenya had not negotiated any extradition treaty with the United States of America.
24. Counsel argued that after Kenya attained independence in 1963 the new state should have concluded a treaty with the USA to govern matters relating to extradition either from or to Kenya.
25. To buttress his argument Counsel relied on section 3 of the Extradition (Contiguous and Foreign Countries) Act Cap 76 which provides that extradition may only occur where a valid treaty or arrangement exists and where the Attorney General has applied the provisions of the Act.
26. Counsel submitted that Legal Notice No 185 of 1969, published on 19 December 1969, applied Part II of the Act to the United States and referenced the 1931 Treaty. However, counsel argued that this Legal Notice was only intended as an interim measure pending the conclusion of a new agreement and could not operate indefinitely as a legal basis for extraditions between Kenya and the US.
27. Counsel further submitted that subsequent treaties between the United Kingdom and the United States r epealed the 1931 Treaty .
28. Counsel made s pecific reference to the 1972 Extradition Treaty signed on 8 June 1972 which entered into force on 21 December 1977 which expressly provided under Article 17(3) that the provisions of the 1931 Treaty would cease to have effect between the United Kingdom and the United States upon the entry into force of the 1972 treaty.
29. Counsel also referred to the 1985 Supplementary Treaty signed on 25 June 1985 which amended the 1972 Treaty including provisions relating to political offences and evidentiary standards between the US and the United Kingdom.
30. Counsel submitted that no bilateral extradition treaty has been concluded between Kenya and the United States following these developments and that no fresh Legal Notice has been issued under Section 3 of the Extradition Act thus the two countries have no legal arrangement in place to govern Extraditions.
31. According to Mr Oonge the extradition request by the United States lacks a legal basis and should therefore be declined and his client set free for he had lawfully entered into Kenya.
32. Counsel argued that reliance on the 1931 Treaty , which ha d been terminated between the original executing parties, is legally untenable and Kenya cannot purport to rely on the same to grant the request by the US authorities.
33. Counsel further submitted that an extradition process without a valid treaty violates constitutional and international human rights protections afforded to his client by the law.
34. The appellant’s r elied on Article 49(1)(f) of the Constitution of Kenya 2010 which guarantees the right of every arrested person to be released on bond or bail on reasonable conditions pending trial unless there are compelling reasons not to do so.
35. Counsel argued that in the absence of a lawful basis for extradition the continued detention of the Appellant is arbitrary and unconstitutional and the order for his extradition and surrender lacks a legal basis and should be quashed by this court to pave way for the appellant to be immediately released from prison custody.
36. The appellant's Counsel relied on R v Secretary of State ex parte Kirkwood (1984) 2 All ER 390 , where it was held that a court cannot order extradition without a statutory basis derived from a treaty or other lawful arrangement.
37. Counsel for the appellant further invoked Article 2(6) of the Constitution which incorporates international law into Kenyan law and referred to Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) which guarantees the right to liberty and security of the person and prohibits arbitrary arrest or detention.
38. Counsel argued that extradition proceedings founded on a defunct treaty violate both domestic law and international legal obligations. He placed reliance on Article 59 of the Vienna Convention on the Law of Treaties (VCLT) which provides that an earlier treaty is terminated where a later treaty relating to the same subject matter is concluded and the provisions are incompatible.
39. Counsel submitted that the 1931 Treaty was terminated through subsequent treaties between the United Kingdom and the United States and therefore cannot form the legal basis of extradition between Kenya and the United States.
40. Counsel further argued that the doctrine of pacta sunt servanda requires states to act in accordance with valid treaty obligations and that where no treaty exists there is no obligation to extradite.
41. Counsel further submitted that it is the responsibility of the State to demonstrate the existence of a valid extradition treaty. Reliance was placed on Hellen Wangari Wangechi v Carumera Muthini Gathua Civil Appeal No 15 of 2010 [2015] eKLR , where the court held that a party who asserts a fact must prove it. Counsel argued that the Respondent bears the burden of proving the existence of a valid extradition treaty between Kenya and the United States.
42. In conclusion counsel submitted that there exists no valid treaty or arrangement between Kenya and the United States capable of supporting the extradition of the Appellant. Counsel further submitted that there is no extradition treaty between Afghanistan and the United States or between Kenya and Afghanistan that could facilitate the surrender of the Appellant.
43. Counsel therefore urged the court to find that the extradition proceedings lack a legal basis. The court was accordingly urged to allow the appeal , set aside the ruling permitting extradition , and order the unconditional release of the Appellant .
RESPONDENT’S SUBMISSIONS
44. The state through Mr. J. V OWITI Prosecution Counsel submitted that the present appeal challenges the ruling and order of the Chief Magistrate’s Court at Milimani in Republic v Abdul Zahir Qadeer a.k.a. Haji Abdul Zahir , delivered on 13 May 2025 by Hon. Ben Mark Ekhubi (SPM) .
45. In that ruling the learned magistrate allowed the Respondent’s application for the extradition of the Appellant to the United States of America (USA).
46. The court also endorsed warrants of arrest issued by the United States District Court for the Southern District of New York and ordered that upon the lapse of fifteen days the Appellant be extradited to the USA to face charges of Narcotics Importation Conspiracy under 21 U.S.C § 963, Possession of Machineguns and Destructive Devices under 18 U.S.C § 924(c) and Conspiracy to Possess Machineguns and Destructive Devices under 18 U.S.C § 924(o).
47. Counsel f urther submitted that the extradition proceedings were initiated following a request by the USA to Kenya seeking the extradition of the Appellant who is an Afghanistan national to face the stated charges. Pursuant to that request the Respondent applied for the endorsement of the warrants of arrest and for the extradition and surrender of the Appellant which application was allowed by the extradition court.
48. It was further submitted that the Appellant opposed the extradition before the magistrate’s court mainly on the ground that the charges against him were politically motivated.
49. The Appellant claimed that the request for his extradition arose from his alleged opposition to the USA’s interference in Afghanistan during his alleged tenure as a member of the Afghanistan National Assembly.
50. He further denied involvement in drug trafficking or illegal firearms activities and stated that he last visited the USA approximately twenty years ago.
51. In his written submissions, Counsel submitted that in the Petition of Appeal dated 19 May 2025 the Appellant raised three principal grounds of appeal. First, the appellant alleged that the charges were politically motivated contrary to section 16(1)(a) of the Extradition (Contiguous and Foreign Countries) Act.
52. Secondly, that the he alleged that the extradition court failed to properly analyze the evidence and improperly admitted the indictment and the warrants of arrest issued by the US District Court together with the supporting affidavit sworn by a DEA Special Agent.
53. Third he alleged that the extradition court failed to protect his constitutional rights and freedoms.
54. The Respondent counsel ha ving heard the position taken by Counsel for the appellant at the hearing of the appeal, focused on the single issue raised by the appellant who submitted that the re existed no proper legal basis for the request for extradition .
55. On the factual basis for extradition counsel submitted that the request for extradition was supported by the affidavit of DEA Special Agent Nicholas DiFrancesco and a Diplomatic Note issued on behalf of the Central Authority of the USA.
56. He further submitted that the US District Court (Hon. Valerie Figueredo USMJ) indicted the Appellant on 25 March 2025 in Case No. 1:2025/28845 following a criminal complaint filed by the DEA Special Agent.
57. The court issued international warrants of arrest which led to the issuance of Interpol Red Notice No. 2025/28845 dated 14 April 2025 . Counsel stated that the Appellant was later arrested at Safari Park Hotel Nairobi while the warrants and the Red Notice were still valid.
58. Counsel went on to state that the Central Authority of the USA transmitted a Diplomatic Note dated 14 April 2025 formally requesting the extradition of the Appellant.
59. Following the request, the Director of Public Prosecutions issued an Authority to Proceed on 16 th April 2025 pursuant to Article 157(6)(a) of the Constitution, section 7(2)(a) of the Sixth Schedule to the Constitution and section 5(1) of the Extradition Act authorizing the commencement of extradition proceedings.
60. On the legal basis for extradition counsel in his written submissions contended that that the Appellant’s contention that there exist no extradition treaty between Kenya and the USA was erroneous.
61. Mr Owiti J.V however, conceded at the hearing of this appeal that there is no extradition treaty that currently exists between Kenya and the United States of America taking into account that the 1931 Treaty between the UK and the United States of America had lapsed.
62. Counsel submitted that the extradition relationship between the two countries was previously governed by the Extradition Agreement between Kenya and the United States of America and the Extradition Treaty between the United States and Great Britain concluded on 22 May 1931 which applie d to Kenya through Legal Notice No. 185 of 1969 under the Extradition (Contiguous and Foreign Countries) Act.
63. The Treaty having lapsed and with the promulgation of the Constitution of Kenya 2010, the legal basis for extradition in Kenya shifted to the reliance on Article 2 (5) and (6) of the Constitution as well as the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.
64. The convention according to Mr. Owiti, was sufficient for purposes of extradition considering that under Article 6 of the Convention extradition is permissible.
65. Counsel submitted that the Appellant provided no evidence to show that he was ever a member of the Afghanistan National Assembly or that he opposed US foreign policy. Counsel further submitted that the Appellant voluntarily travelled from Kabul Afghanistan to Kenya on 14 April 2025 aboard Qatar Airlines and there was no evidence that the USA orchestrated his arrest.
66. Counsel also argued that there was no proof that the Appellant would face torture discrimination or the death penalty if extradited.
67. Counsel submitted that the offences in question are also offences under Kenyan law through the Narcotic Drugs and Psychotropic Substances (Control) Act No 4 of 1994 and therefore the principle of dual criminality was satisfied.
68. On the allegation that the extradition court failed to protect the Appellant’s rights counsel submitted that the Appellant relied on Articles 25 and 50 of the Constitution, the International Covenant on Civil and Political Rights, the United Nations Convention Against Torture, and Article 33 of the 1951 Refugee Convention.
69. Counsel further submitted that the principle of non -refoulement did not apply because the Appellant was not a refugee but a fugitive facing criminal charges. According to the respondent the court recognized that the United States has a functioning legal system that guarantees fair trial rights.
70. The court was therefore urged to find that the 1988 Convention suffices for purposes extradition for matters relating to Anti -Narcotics thus the request by the USA is proper and that the Ruling by the learned Honorable Magistrate should be allowed to stand.
ANALYSIS AND DETERMINATION
71. The appellant has challenged the lower court decision to order his extradition and surrender to the USA for trial. Counsel for the appellant at the hearing of the appeal abandoned all other grounds of appeal and mainly argued the issue whether in the absence of an Extradition treaty between the USA and Kenya, Kenya can lawfully extradite a person to the USA.
72. The state opposed the appeal arguing that even though there is no bilateral treaty between Kenya and the USA allowing extradition of persons between the two states, Kenya could still extradite the appellant on the basis of Article 6 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.
73. The country Kenya having acceded to the Convention on 19 th October 1992 became bound by its provisions thus the country cannot run away from its obligations under the Convention.
74. The state also cited the provisions of Article 2(5) and (6) of the Constitution and argued that the general rules of international law and any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
75. The state having acceded to the convention was therefore bound by its provisions and by dint of Article 2(6) of the Constitution could not avoid the obligations arising under the Convention.
76. Article 6 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 provides;-
‘’EXTRADITION
1.This article shall apply to the offences established by the Parties in accordance with article 3, paragraph 1.
2. Each of the offences to which this article applies shall be deemed to be included as an extraditable offence in any extradition treaty existing between Par- ties. The Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.
3. If a Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of any offence to which this article applies. The Parties which require detailed legislation in order to use this Convention as a legal basis for extradition shall consider enacting such legislation as may be necessary.
4. The Parties which do not make extradition conditional on the existence of a treaty shall recognize offences to which this article applies as extraditable offences between themselves.
5. Extradition shall be subject to the conditions provided for by the law of the requested Party or by applicable extradition treaties, including the grounds upon which the requested Party may refuse extradition.
6. In considering requests received pursuant to this article, the requested State may refuse to comply with such requests where there are substantial grounds leading its judicial or other competent authorities to believe that compliance would facilitate the prosecution or punishment of any person on account of his race, religion, nationality or political opinions, or would cause prejudice for any of those reasons to any person affected by the request.
7. The Parties shall endeavour to expedite extradition procedures and to simplify evidentiary requirements relating thereto in respect of any offence to which this article applies.
8. Subject to the provisions of its domestic law and its extradition treaties, the requested Party may, upon being satisfied that the circumstances so warrant and are urgent, and at the request of the requesting Party, take a person whose ex- tradition is sought and who is present in its territory into custody or take other appropriate measures to ensure his presence at extradition proceedings.
9. Without prejudice to the exercise of any criminal jurisdiction established in accordance with its domestic law, a Party in whose territory an alleged offender is found shall:
( a) If it does not extradite him in respect of an offence established in accordance with article 3, paragraph 1, on the grounds set forth in article 4, para- graph 2, subparagraph (a), submit the case to its competent authorities for the purpose of prosecution, unless otherwise agreed with the requesting Party;
(b) If it does not extradite him in respect of such an offence and has established its jurisdiction in relation to that offence in accordance with article 4, paragraph 2, subparagraph (b), submit the case to its competent authorities for the purpose of prosecution, unless otherwise requested by the requesting Party for the purposes of preserving its legitimate jurisdiction.
10. If extradition, sought for purposes of enforcing a sentence, is refused because the person sought is a national of the requested Party, the requested Party shall, if its law so permits and in conformity with the requirements of such law, upon application of the requesting Party, consider the enforcement of the sentence which has been imposed under the law of the requesting Party, or the remainder thereof.
11. The Parties shall seek to conclude bilateral and multilateral agreements to carry out or to enhance the effectiveness of extradition.
12. The Parties may consider entering into bilateral or multilateral agreements, whether ad hoc or general, on the transfer to their country of persons sentenced to imprisonment and other forms of deprivation of liberty for offences to which this article applies, in order that they may complete their sentences there.
77. This court has considered the rival arguments by counsel in this matter. Whereas the appellant strongly holds the view that a treaty is a condition sin qua non to any extradition arrangement between Kenya to the USA, on the basis of existing provisions of Section 3 of the Extradition (Contiguous and Foreign Countries) Act Cap76, the appellant has not addressed this court on the fate of requests lawfully received by the Central Authority of Kenya where no treaty or bilateral agreement exists.
78. Listening to the arguments made by the appellant’s counsel one gets the impression that once the 1931 treaty between the UK and the USA was terminated, Kenya was left in a position that it could not extradite any one to the USA regardless of the offense involved.
79. The court notes with appreciation the submissions by both counsel for the parties in this matter. The one thing that neither counsel addressed this court on was the application of Section 7 of the Sixth Schedule to the Constitution in construing the provisions of the Extradition (Contiguous and Foreign Countries) Act Cap 76 in so far as the same relates to Extradition under the framework of the Constitution of Kenya,2010.
80. The country having evolved to recognize the place of international law as being part of our law, a lot changed because the application of municipal law has to be undertaken with the country bearing in mind its obligations under international law in relation to the treaties and conventions that we are a party to.
81. The 1931 treaty was concluded between the USA and the UK who were our colonial masters. We continued to apply the treaty after we attained independence up to the time the same was terminated.
82. However, Kenya as a sovereign state was at liberty upon the attainment of its independence to chart its own path upon the termination of the treaty. The argument by the appellant that since there is no treaty, Kenya cannot extradite anyone to the USA if accepted would mean that there is a vacuum in law. The law abhors a vacuum and by necessary implication the promulgation of the Constitution of Kenya, 2010 opened a new chapter on the application of international law in Kenya.
83. Kenya is a party to the 1988 United Nations Convention against Illicit Traffic in Narco
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1. The appeal arises from a decision of the Magistrate’s Court ordering the extradition and surrender of the Appellant to the United States of America where he is wanted in connection with drug related offences.
2. The appellant is an Afghanistan National who was arrested in a Nairobi Hotel where he had checked in as a guest.
3. He was arrested pursuant to an Extradition request made to the Government of Kenya by the United States of America Government.
4. The appellant is a wanted fugitive in the United States of America in connection with drugs related offences.
5. The matter was commenced before the Chief magistrate’s court by the Office of the Director of Public Prosecutions by way of a Notice of Motion seeking an order to have the appellant extradited from the country to go and face trial in the United States of America.
6. The DPP had approached the lower court seeking the following orders;-
a). that pending the hearing and determination of the application, the Honourable Court be pleased to issue an order for the continued detention of ABDUL ZAHIR QADEER a.k.a HAJI ABDUL ZAHIR.
b). that the warrant of arrest issued by the United States District Court for the Southern District of New York in the United States of America on 25th March 2025 be endorsed in accordance with, and in the manner authorized by the law.
c). that the Appellant be ordered to be returned and or conveyed out of Kenya and surrendered to the USA to face charges for the offences of Narcotics Importation Conspiracy under 21 U.S.C 963, Possession of machineguns and destructive devices under 18 U.S.C 924 (c), and conspiracy to possess machineguns and destructive devices under 18 U.S.C 924 (o) for which he was formally charged by indictment vide Case No. 1:2025/28845.
7. The Extradition magistrate after going through the Extradition request found that the request met the necessary threshold to order the removal of the appellant through an Extradition order and be surrendered to the United States of America authorities to face trial in the U.S.
PETITION OF APPEAL
8. T he Appellant, dissatisfied with the Ruling and Order of the Hon. Ben Mark Ekhubi (SPM) delivered on 13th May, 2025 at Milimani Chief Magistrate's Court appealed to this Honourable Court against the said R uling on the following ground s:-
a) The Learned Magistrate erred in law by endorsing the extradition request and granting the surrender of the Appellant to the United States of America despite compelling evidence showing that the charges against the Appellant are politically motivated, contrary to Section 16 of the Extradition (Contiguous and Foreign Countries) Act, Cap 76 Laws of Kenya.
b) The Learned Magistrate erred in law in finding that a prima facie case had been established against the Appellant without adequately considering the political context and international relations between Afghanistan and the United States which formed the basis of the Appellant's persecution.
c) The Learned Magistrate erred in law by endorsing the Warrant of Arrest issued by the US District Court for the Southern District of New York yet the evidence on record supporting the said indictment is materially feeble, improbable and uncorroborated to support the alleged charges.
d) The Learned Magistrate misapprehended and misapplied the doctrine of specialty and non-refoulement under international law and Article 25 of the Constitution of Kenya, thereby failing to protect the Appellant's fundamental rights and freedoms.
e) The Learned Magistrate erred in law by failing to find that the offences for which the Appellant is sought, though not political, but are politically motivated and thus non-extraditable under Section 16 (1) (a) of the Extradition (Contiguous and Foreign Countries) Act.
f) The Learned Magistrate erred in law by treating as admissible the evidence contained in foreign indictments and affidavits without critical scrutiny, contrary to the principles of fair trial and natural justice enshrined under Article 50 of the Constitution.
g) The Learned Magistrate erred by disregarding the Appellant's sworn Replying Affidavit which demonstrated the Appellant's political background, and consistent denunciation of U.S. foreign policy as sufficient proof of persecution, thereby failing to appreciate the political dimension of the extradition request.
h) The Learned Magistrate erred in law by failing to apply the legal principles laid out in Republic v Mutugu & 5 others (Criminal Case E014 of 2024) [2024] KEHC 7548 (KLR) , which delineate the limits of evidentiary thresholds in extradition proceedings, especially where political bias is alleged.
i) The Learned Magistrate erred by failing to appreciate that the Appellant's arrest and continued detention are being used as a tool to silence political dissent, in contravention of international norms against politically motivated prosecutions.
j) The Learned Magistrate failed to adequately analyze the evidentiary gaps, inconsistencies, and questionable credibility of the confidential informant (CS-1), who forms the linchpin of the prosecution case, thus rendering the decision unsafe.
k) The Learned Magistrate erred in law by concluding that mere existence of an extradition treaty and matching offences under Kenyan law was sufficient basis for surrender, without proper analysis of safeguards afforded under international human rights law.
9. At the hearing of the appeal Mr Oonge counsel appearing for the appellant, indicated to this court that he was only interested in pursuing the ground that there is no legal basis for the request for extradition of the appellant to the USA since there is no Extradition treaty between Kenya and the USA.
10. The appellant’s counsel told this court that in the event that this court agrees with him that there was no legal basis for the Order of Extradition, the court should immediately quash the order and set his client free since he had entered in the country legally.
11. The appeal therefore proceeded on that understanding between the parties.
APPELLANT’S SUBMISSIONS
12. Counsel for the appellant relied on the written submissions he had filed on behalf of the appellant, an Afghan national currently detained in Kenya and the subject of an extradition request by the Government of the United States of America.
13. The submissions by the appellant wer e in support o f the Petition of Appeal dated 19 May 2025 and amended on 13 October 2025 .
14. Counsel submitted that the intended extradition of the Appellant from the Republic of Kenya to the United States of America is unlawful and impermissible. He argued that the purported legal basis relied upon by the Respondent is the 1931 Extradition Treaty between the United States and Great Britain .
15. According to Counsel th at treaty is no longer in force and cannot be relied upon as a valid legal basis for the extradition of any person from Kenya to the United States .
16. Counsel further submitted that there being no bilateral extradition treaty between Kenya and the United States , no extradition would be permissible until such time that the two states enter into a bilateral treaty for that purpose.
17. The Appellant's counsel contended that as it is today, Kenya cannot extradite anyone to the United States irrespective of the alleged offence.
18. Counsel further argued that there is no bilateral extradition treaty between Afghanistan and Kenya and that there is similarly no extradition treaty between Afghanistan and the United States thus complicating the matter further considering that the Appellant is an Afghan National arrested within the territory of Kenya.
19. Further, Mr Oonge Advocate submitted that Kenyan domestic law prohibits extradition in the absence of a valid treaty or extradition arrangement thus the order by the learned Honorable Magistrate should be quashed.
20. According to Counsel for the Appellant, the Diplomatic Note No. 0653 issued by the Embassy of the United States dated 14 April 2025 together with the Authority to Proceed dated 16 April 2025 issued by the Director of Public Prosecutions Kenya cannot constitute a lawful basis for extradition of the subject in the absence of a valid treaty.
21. Counsel urged this court to find that if the extradition was to be allowed to proceed as ordered by the learned Honourable Magistrate, it would amount to an unlawful deprivation of liberty of the appellant and a violation of constitutional and international human rights protections of the Appellant.
22. Counsel addressed the treaty relationship between the United States and Kenya and submitted that the 1931 Extradition Treaty was concluded between the United States and the United Kingdom on 22 December 1931 and provided for the reciprocal surrender of fugitives between the two countries and their territories including colonial Kenya. The Treaty according to the appellant remained the sole basis upon which Kenya could conduct an extradition process between herself and the United States of America.
23. The Treaty having lapsed, the appellant took the view that there was a lacuna in law since Kenya had not negotiated any extradition treaty with the United States of America.
24. Counsel argued that after Kenya attained independence in 1963 the new state should have concluded a treaty with the USA to govern matters relating to extradition either from or to Kenya.
25. To buttress his argument Counsel relied on section 3 of the Extradition (Contiguous and Foreign Countries) Act Cap 76 which provides that extradition may only occur where a valid treaty or arrangement exists and where the Attorney General has applied the provisions of the Act.
26. Counsel submitted that Legal Notice No 185 of 1969, published on 19 December 1969, applied Part II of the Act to the United States and referenced the 1931 Treaty. However, counsel argued that this Legal Notice was only intended as an interim measure pending the conclusion of a new agreement and could not operate indefinitely as a legal basis for extraditions between Kenya and the US.
27. Counsel further submitted that subsequent treaties between the United Kingdom and the United States r epealed the 1931 Treaty .
28. Counsel made s pecific reference to the 1972 Extradition Treaty signed on 8 June 1972 which entered into force on 21 December 1977 which expressly provided under Article 17(3) that the provisions of the 1931 Treaty would cease to have effect between the United Kingdom and the United States upon the entry into force of the 1972 treaty.
29. Counsel also referred to the 1985 Supplementary Treaty signed on 25 June 1985 which amended the 1972 Treaty including provisions relating to political offences and evidentiary standards between the US and the United Kingdom.
30. Counsel submitted that no bilateral extradition treaty has been concluded between Kenya and the United States following these developments and that no fresh Legal Notice has been issued under Section 3 of the Extradition Act thus the two countries have no legal arrangement in place to govern Extraditions.
31. According to Mr Oonge the extradition request by the United States lacks a legal basis and should therefore be declined and his client set free for he had lawfully entered into Kenya.
32. Counsel argued that reliance on the 1931 Treaty , which ha d been terminated between the original executing parties, is legally untenable and Kenya cannot purport to rely on the same to grant the request by the US authorities.
33. Counsel further submitted that an extradition process without a valid treaty violates constitutional and international human rights protections afforded to his client by the law.
34. The appellant’s r elied on Article 49(1)(f) of the Constitution of Kenya 2010 which guarantees the right of every arrested person to be released on bond or bail on reasonable conditions pending trial unless there are compelling reasons not to do so.
35. Counsel argued that in the absence of a lawful basis for extradition the continued detention of the Appellant is arbitrary and unconstitutional and the order for his extradition and surrender lacks a legal basis and should be quashed by this court to pave way for the appellant to be immediately released from prison custody.
36. The appellant's Counsel relied on R v Secretary of State ex parte Kirkwood (1984) 2 All ER 390 , where it was held that a court cannot order extradition without a statutory basis derived from a treaty or other lawful arrangement.
37. Counsel for the appellant further invoked Article 2(6) of the Constitution which incorporates international law into Kenyan law and referred to Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) which guarantees the right to liberty and security of the person and prohibits arbitrary arrest or detention.
38. Counsel argued that extradition proceedings founded on a defunct treaty violate both domestic law and international legal obligations. He placed reliance on Article 59 of the Vienna Convention on the Law of Treaties (VCLT) which provides that an earlier treaty is terminated where a later treaty relating to the same subject matter is concluded and the provisions are incompatible.
39. Counsel submitted that the 1931 Treaty was terminated through subsequent treaties between the United Kingdom and the United States and therefore cannot form the legal basis of extradition between Kenya and the United States.
40. Counsel further argued that the doctrine of pacta sunt servanda requires states to act in accordance with valid treaty obligations and that where no treaty exists there is no obligation to extradite.
41. Counsel further submitted that it is the responsibility of the State to demonstrate the existence of a valid extradition treaty. Reliance was placed on Hellen Wangari Wangechi v Carumera Muthini Gathua Civil Appeal No 15 of 2010 [2015] eKLR , where the court held that a party who asserts a fact must prove it. Counsel argued that the Respondent bears the burden of proving the existence of a valid extradition treaty between Kenya and the United States.
42. In conclusion counsel submitted that there exists no valid treaty or arrangement between Kenya and the United States capable of supporting the extradition of the Appellant. Counsel further submitted that there is no extradition treaty between Afghanistan and the United States or between Kenya and Afghanistan that could facilitate the surrender of the Appellant.
43. Counsel therefore urged the court to find that the extradition proceedings lack a legal basis. The court was accordingly urged to allow the appeal , set aside the ruling permitting extradition , and order the unconditional release of the Appellant .
RESPONDENT’S SUBMISSIONS
44. The state through Mr. J. V OWITI Prosecution Counsel submitted that the present appeal challenges the ruling and order of the Chief Magistrate’s Court at Milimani in Republic v Abdul Zahir Qadeer a.k.a. Haji Abdul Zahir , delivered on 13 May 2025 by Hon. Ben Mark Ekhubi (SPM) .
45. In that ruling the learned magistrate allowed the Respondent’s application for the extradition of the Appellant to the United States of America (USA).
46. The court also endorsed warrants of arrest issued by the United States District Court for the Southern District of New York and ordered that upon the lapse of fifteen days the Appellant be extradited to the USA to face charges of Narcotics Importation Conspiracy under 21 U.S.C § 963, Possession of Machineguns and Destructive Devices under 18 U.S.C § 924(c) and Conspiracy to Possess Machineguns and Destructive Devices under 18 U.S.C § 924(o).
47. Counsel f urther submitted that the extradition proceedings were initiated following a request by the USA to Kenya seeking the extradition of the Appellant who is an Afghanistan national to face the stated charges. Pursuant to that request the Respondent applied for the endorsement of the warrants of arrest and for the extradition and surrender of the Appellant which application was allowed by the extradition court.
48. It was further submitted that the Appellant opposed the extradition before the magistrate’s court mainly on the ground that the charges against him were politically motivated.
49. The Appellant claimed that the request for his extradition arose from his alleged opposition to the USA’s interference in Afghanistan during his alleged tenure as a member of the Afghanistan National Assembly.
50. He further denied involvement in drug trafficking or illegal firearms activities and stated that he last visited the USA approximately twenty years ago.
51. In his written submissions, Counsel submitted that in the Petition of Appeal dated 19 May 2025 the Appellant raised three principal grounds of appeal. First, the appellant alleged that the charges were politically motivated contrary to section 16(1)(a) of the Extradition (Contiguous and Foreign Countries) Act.
52. Secondly, that the he alleged that the extradition court failed to properly analyze the evidence and improperly admitted the indictment and the warrants of arrest issued by the US District Court together with the supporting affidavit sworn by a DEA Special Agent.
53. Third he alleged that the extradition court failed to protect his constitutional rights and freedoms.
54. The Respondent counsel ha ving heard the position taken by Counsel for the appellant at the hearing of the appeal, focused on the single issue raised by the appellant who submitted that the re existed no proper legal basis for the request for extradition .
55. On the factual basis for extradition counsel submitted that the request for extradition was supported by the affidavit of DEA Special Agent Nicholas DiFrancesco and a Diplomatic Note issued on behalf of the Central Authority of the USA.
56. He further submitted that the US District Court (Hon. Valerie Figueredo USMJ) indicted the Appellant on 25 March 2025 in Case No. 1:2025/28845 following a criminal complaint filed by the DEA Special Agent.
57. The court issued international warrants of arrest which led to the issuance of Interpol Red Notice No. 2025/28845 dated 14 April 2025 . Counsel stated that the Appellant was later arrested at Safari Park Hotel Nairobi while the warrants and the Red Notice were still valid.
58. Counsel went on to state that the Central Authority of the USA transmitted a Diplomatic Note dated 14 April 2025 formally requesting the extradition of the Appellant.
59. Following the request, the Director of Public Prosecutions issued an Authority to Proceed on 16 th April 2025 pursuant to Article 157(6)(a) of the Constitution, section 7(2)(a) of the Sixth Schedule to the Constitution and section 5(1) of the Extradition Act authorizing the commencement of extradition proceedings.
60. On the legal basis for extradition counsel in his written submissions contended that that the Appellant’s contention that there exist no extradition treaty between Kenya and the USA was erroneous.
61. Mr Owiti J.V however, conceded at the hearing of this appeal that there is no extradition treaty that currently exists between Kenya and the United States of America taking into account that the 1931 Treaty between the UK and the United States of America had lapsed.
62. Counsel submitted that the extradition relationship between the two countries was previously governed by the Extradition Agreement between Kenya and the United States of America and the Extradition Treaty between the United States and Great Britain concluded on 22 May 1931 which applie d to Kenya through Legal Notice No. 185 of 1969 under the Extradition (Contiguous and Foreign Countries) Act.
63. The Treaty having lapsed and with the promulgation of the Constitution of Kenya 2010, the legal basis for extradition in Kenya shifted to the reliance on Article 2 (5) and (6) of the Constitution as well as the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.
64. The convention according to Mr. Owiti, was sufficient for purposes of extradition considering that under Article 6 of the Convention extradition is permissible.
65. Counsel submitted that the Appellant provided no evidence to show that he was ever a member of the Afghanistan National Assembly or that he opposed US foreign policy. Counsel further submitted that the Appellant voluntarily travelled from Kabul Afghanistan to Kenya on 14 April 2025 aboard Qatar Airlines and there was no evidence that the USA orchestrated his arrest.
66. Counsel also argued that there was no proof that the Appellant would face torture discrimination or the death penalty if extradited.
67. Counsel submitted that the offences in question are also offences under Kenyan law through the Narcotic Drugs and Psychotropic Substances (Control) Act No 4 of 1994 and therefore the principle of dual criminality was satisfied.
68. On the allegation that the extradition court failed to protect the Appellant’s rights counsel submitted that the Appellant relied on Articles 25 and 50 of the Constitution, the International Covenant on Civil and Political Rights, the United Nations Convention Against Torture, and Article 33 of the 1951 Refugee Convention.
69. Counsel further submitted that the principle of non -refoulement did not apply because the Appellant was not a refugee but a fugitive facing criminal charges. According to the respondent the court recognized that the United States has a functioning legal system that guarantees fair trial rights.
70. The court was therefore urged to find that the 1988 Convention suffices for purposes extradition for matters relating to Anti -Narcotics thus the request by the USA is proper and that the Ruling by the learned Honorable Magistrate should be allowed to stand.
ANALYSIS AND DETERMINATION
71. The appellant has challenged the lower court decision to order his extradition and surrender to the USA for trial. Counsel for the appellant at the hearing of the appeal abandoned all other grounds of appeal and mainly argued the issue whether in the absence of an Extradition treaty between the USA and Kenya, Kenya can lawfully extradite a person to the USA.
72. The state opposed the appeal arguing that even though there is no bilateral treaty between Kenya and the USA allowing extradition of persons between the two states, Kenya could still extradite the appellant on the basis of Article 6 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.
73. The country Kenya having acceded to the Convention on 19 th October 1992 became bound by its provisions thus the country cannot run away from its obligations under the Convention.
74. The state also cited the provisions of Article 2(5) and (6) of the Constitution and argued that the general rules of international law and any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
75. The state having acceded to the convention was therefore bound by its provisions and by dint of Article 2(6) of the Constitution could not avoid the obligations arising under the Convention.
76. Article 6 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 provides;-
‘’EXTRADITION
1.This article shall apply to the offences established by the Parties in accordance with article 3, paragraph 1.
2. Each of the offences to which this article applies shall be deemed to be included as an extraditable offence in any extradition treaty existing between Par- ties. The Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.
3. If a Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of any offence to which this article applies. The Parties which require detailed legislation in order to use this Convention as a legal basis for extradition shall consider enacting such legislation as may be necessary.
4. The Parties which do not make extradition conditional on the existence of a treaty shall recognize offences to which this article applies as extraditable offences between themselves.
5. Extradition shall be subject to the conditions provided for by the law of the requested Party or by applicable extradition treaties, including the grounds upon which the requested Party may refuse extradition.
6. In considering requests received pursuant to this article, the requested State may refuse to comply with such requests where there are substantial grounds leading its judicial or other competent authorities to believe that compliance would facilitate the prosecution or punishment of any person on account of his race, religion, nationality or political opinions, or would cause prejudice for any of those reasons to any person affected by the request.
7. The Parties shall endeavour to expedite extradition procedures and to simplify evidentiary requirements relating thereto in respect of any offence to which this article applies.
8. Subject to the provisions of its domestic law and its extradition treaties, the requested Party may, upon being satisfied that the circumstances so warrant and are urgent, and at the request of the requesting Party, take a person whose ex- tradition is sought and who is present in its territory into custody or take other appropriate measures to ensure his presence at extradition proceedings.
9. Without prejudice to the exercise of any criminal jurisdiction established in accordance with its domestic law, a Party in whose territory an alleged offender is found shall:
( a) If it does not extradite him in respect of an offence established in accordance with article 3, paragraph 1, on the grounds set forth in article 4, para- graph 2, subparagraph (a), submit the case to its competent authorities for the purpose of prosecution, unless otherwise agreed with the requesting Party;
(b) If it does not extradite him in respect of such an offence and has established its jurisdiction in relation to that offence in accordance with article 4, paragraph 2, subparagraph (b), submit the case to its competent authorities for the purpose of prosecution, unless otherwise requested by the requesting Party for the purposes of preserving its legitimate jurisdiction.
10. If extradition, sought for purposes of enforcing a sentence, is refused because the person sought is a national of the requested Party, the requested Party shall, if its law so permits and in conformity with the requirements of such law, upon application of the requesting Party, consider the enforcement of the sentence which has been imposed under the law of the requesting Party, or the remainder thereof.
11. The Parties shall seek to conclude bilateral and multilateral agreements to carry out or to enhance the effectiveness of extradition.
12. The Parties may consider entering into bilateral or multilateral agreements, whether ad hoc or general, on the transfer to their country of persons sentenced to imprisonment and other forms of deprivation of liberty for offences to which this article applies, in order that they may complete their sentences there.
77. This court has considered the rival arguments by counsel in this matter. Whereas the appellant strongly holds the view that a treaty is a condition sin qua non to any extradition arrangement between Kenya to the USA, on the basis of existing provisions of Section 3 of the Extradition (Contiguous and Foreign Countries) Act Cap76, the appellant has not addressed this court on the fate of requests lawfully received by the Central Authority of Kenya where no treaty or bilateral agreement exists.
78. Listening to the arguments made by the appellant’s counsel one gets the impression that once the 1931 treaty between the UK and the USA was terminated, Kenya was left in a position that it could not extradite any one to the USA regardless of the offense involved.
79. The court notes with appreciation the submissions by both counsel for the parties in this matter. The one thing that neither counsel addressed this court on was the application of Section 7 of the Sixth Schedule to the Constitution in construing the provisions of the Extradition (Contiguous and Foreign Countries) Act Cap 76 in so far as the same relates to Extradition under the framework of the Constitution of Kenya,2010.
80. The country having evolved to recognize the place of international law as being part of our law, a lot changed because the application of municipal law has to be undertaken with the country bearing in mind its obligations under international law in relation to the treaties and conventions that we are a party to.
81. The 1931 treaty was concluded between the USA and the UK who were our colonial masters. We continued to apply the treaty after we attained independence up to the time the same was terminated.
82. However, Kenya as a sovereign state was at liberty upon the attainment of its independence to chart its own path upon the termination of the treaty. The argument by the appellant that since there is no treaty, Kenya cannot extradite anyone to the USA if accepted would mean that there is a vacuum in law. The law abhors a vacuum and by necessary implication the promulgation of the Constitution of Kenya, 2010 opened a new chapter on the application of international law in Kenya.
83. Kenya is a party to the 1988 United Nations Convention against Illicit Traffic in Narco
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