- The applicant by way of a NOTICE OF MOTION dated 25th day of April 2025 expressed to be brought under Articles 19, 20, 21, 22, 23, 24, 25, 27, 50 & 51 of the Constitution of Kenya 2010 and section 9 of Contiguous and Foreign Countries Act Cap 76 and all other enabling provisions of the Law, sought for the following ORDERS THAT:
- a). This Application be certified as urgent, be heard ex-parte and
- disposed of in the first instance.
- b). The Director of Criminal Investigations to produce the Applicant in
- Court for habeas corpus.
- c. The Director of Criminal Investigations to release the applicant
- henceforth.
- d. The Director of Immigration to allow the applicant to exit to his home
- country, Lebanon.
- e. To quash endorsement of the warrants of arrest by the Magistrate
- Court.
- f. Any other orders in the advancement of justice.
- g. The cost of this Application be provided for.
- 2. The application was is based on grounds THAT: -
- a). The Applicant was arrested on 26th February 2025 at Windsor Hotel
- in Nairobi and the Respondent sought detention order pending the processing of the extradition documents.
- b). The Respondent sought extension of the detention order on 18th March 2025 which application was dismissed and the Court ordered the release of the applicant unless the extradition proceeding were initiated.
- c). The Respondent made an application for extradition of the applicant vide Miscellaneous Criminal Application No. E1025 of 2025 which application was allowed on 16th April 2025.
- d). The Learned Magistrate Court endorsed the warrants of arrest in
- absence of the original warrants from the District Court in Virginia.
- f). The Learned Magistrate endorsed the warrants of arrest in absence of
- a formal request from the United States of America.
- g). The Learned Magistrate endorsed the warrants of arrest without
- declaring the timelines for the alleged surrender.
- h). The alleged requesting state has not shown any interest to surrender
- the applicant.
- i). The Applicant is still in custody since the time of his arrest and his
- health is deteriorating each and every day.
- The application was placed before this court on the 29th April 2025 when the court certified it urgent and directed the applicant’s counsel to serve the same upon the respondents.
- The court further ordered the respondents to produce the applicant on the 30th April 2025 and show cause why the applicant had not been removed from this country despite there being an extradition order.
- The respondents were served and they dutifully complied with the orders of the court and produced the applicant in open court on the 30th April 2025.
- The director of immigration appeared through counsel and informed the court that the immigration Department was yet to receive any request for the clearance of the applicant to exit this country and according to them, as soon as they receive the air ticket of the applicant and his valid passport, they shall immediately process his exit from this country to wherever he may be destined.
- The Director of Public Prosecutions through Mr. Monda SADPP and Mr. Owiti Principal Prosecution Counsel explained to the court that the office was working on the surrender of the applicant to the U.S authorities and the reason for the delay in removing him was to allow the statutory period allowed for the applicant to challenge the extradition order if he so wished and that plans were under way to ensure that once the statutory period lapses, he would be immediately removed from the country.
- The order for extradition having been made von 16th April 2025, the applicant had approached the court with the 15 days provided for the taking out a habeas corpus order thus it was upon the applicant to indicate whether he was bent on challenging his extradition.
- Professor Nandwa appearing for the applicant informed the court that the applicant was ready and willing to leave the Country to his home country Lebanon or the U.S if the U.S authorities were still keen on his extradition.
- Counsel for the applicant argued that there was some apparent disinterest in the extradition on the part of the U.S authorities and that is why the applicant had come to court for orders to either be released or immediately allowed to leave the country to his homeland.
- The applicant indicated unequivocally that he did not intend to challenge the extradition order issued against him thus he challenged the respondents to expeditiously process his surrender process.
- The respondents on 5th of May 2025 indicated to the court that it is now confirmed that on 22nd May 2025 the applicant will be removed from the country and Mr. Owiti counsel for the respondents was scheduled to escort him to the U.S in order to ensure that he was handed over to the appropriate authorities in the U.S.
- Upon that assurance being made by the prosecution the applicant sought to be released on Bail pending that process and pleaded with the court to have him released to the Lebanese Consular officials whom he said were ready to bail him out and in particular one by the name Ibrahim Zahim was ready to facilitate his treatment while in the country.
- The application for bail was opposed by the state who argued that since there is already an order for extradition, it would be improper for the court to admit him to bail without a formal application since the applicant has already indicated that he is not challenging the extradition order.
- The matter as it stands now is at the political phase of extradition considering that what is in issue is the question of surrender which is essentially an executive function as opposed to a judicial one.
- As matters stand now the status of the applicant is that he is a fugitive awaiting surrender and since the applicant is not contesting the extradition order he remains in the hands of the executive in whose exclusive jurisdiction the issue of surrender fall.
- The applicant is a foreign national who was arrested in this country at the request of the U.S authorities. He certainly has no fixed abode in Kenya and his stay in the Country has now become in compatible with his new status following the order for extradition issued on 16th April 2025 which order he is not challenging.
- The matter therefore has been put beyond the remit of the judicial role of courts in the processing of extradition proceedings.
- The the applicant is in lawful custody as he is the subject of the extradition order issued issued on 16th April 2025 by the Chief Magistrate's Court at Milimani Hon. B. M. Ekhubi, SPM) in Director of Public Prosecutions v. Antoine Kassis alias Toni alias Tony alias Anthony Cassis alias Wadad (Milimani MCCR Misc. No. E1025 of 2025 for his surrender to the United States of America (USA) to face charges for the offences of Conspiracy to Commit Narcoterrorism under the US Code section 21 U.S.C, and Money Laundering Conspiracy and Money Laundering both under the US Code section 18 U.S.C. before the United States District Court for the Eastern District of Virginia.
- The right to an order of habeas corpus under section 9 of the Extradition (Contiguous and Foreign Countries) Act, Cap 76 Laws of Kenya, prohibits the surrender of the fugitive criminal pursuant to an extradition order until after the expiration of fifteen days from the date the order for extradition was made.
- It follows therefore that the instant application was prematurely filed and given that the applicant has elected not to challenge the order, he is in lawful custody awaiting removal from the country.
- The issue of delay cannot therefore arise. The respondents have indicated the measure they are taking to have him removed thus to release the applicant on bail at this stage without any legal proceedings challenging the extradition would in this court’s view be improper.
- A fugitive criminal has a the right to bail during the period of the extradition proceedings. The right is available to him during that phase because the extraditing magistrate has to review the dossier provided by the requesting state and satisfy himself that the request meets the threshold for the grant of the request.
- The learned Hon. Magistrate having satisfied himself that the request in respect of the applicant met the prima facie test, he made the order for extradition which the applicant has indicated to this court that he is not challenging.
- In Chrysanthus Barnabus Okemo &another; v Attorney General & 3 others [2018] KECA 737 (KLR) the Supreme court held;-
- ‘’12] An extraditee has statutory rights under the Extradition Act which includes, a right to bail upon being brought before a magistrate (s.9(2)); right to have his evidence heard by an extradition court (s. 9(5)); right to be informed of the right to apply for habeas corpus and the right to make such an application (s. 10(1); 10(3)); where there is delay in surrendering him, a right to apply to the High Court for discharge (s.12) and, a right to notice by AG of the issuance of a warrant of surrender (s.11(6)). In addition, since the Constitution is the supreme law and binds all persons and state organs, an extraditee is entitled to the rights under the Bill of Rights where applicable in the extradition process including right to human dignity (Article 28); right to freedom and security of a person (Article 29); and where applicable, right to fair administrative action (Article 47(1)); rights of detained persons and people held in custody (Article 51) and right to a fair hearing before the extradition court (Article 51(1))
- [13] It is noteworthy that section 72(1)(i) of the repealed Constitution provided that a person could be deprived of his personal liberty if authorized by law:
- “for the purpose of preventing the unlawful entry of that person into Kenya, or for the purpose of effecting the expulsion, extradition, or other lawful removal of that person from Kenya or for the purpose of restricting that person while he is being conveyed through Kenya in the course of his extradition or removal as a convicted prisoner from one country to another”
- The Constitution of Kenya, 2010 has not changed the law since the right to freedom and security of a person protected by Article 29 is not included in Article 25 as one of the rights which cannot be limited by law. However, as Article 24 provides, the rights under Article 29 can only be limited by law and only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on principles and circumstances stipulated therein.
- It is not necessary to discuss the rights to personal liberty and security of a person any further since it has not been alleged that the Extradition Act is unconstitutional.’’
- It is not in doubt that the applicant has rights but again those rights are only exercisable within the law. The law expressly does require a person awaiting removal from the country to be held in prison custody. The action of committing the applicant to prison custody is constitutional and does not amount to a breach of his right to liberty.
- The applicant in the lower court could have been admitted to bail prior to the order for extradition.
- This court holds the view that to seek bail after an order for extradition has been made is akin to seeking bail pending appeal in ordinary criminal proceedings.
- The fugitive must be able to demonstrate that the challenge he/she has lodged in the High Court against the order for extradition has overwhelming chances of success and or that there exist exceptional or special circumstances that would warrant his release on bail pending removal.
- The applicant did allude to deteriorating health but no details were provided to the court to assist the court in determining whether the applicant required specialized treatment outside what is available in prison.
- The court did make an order for him to be taken to hospital and there has not been any new development to suggest that he requires further treatment or that he was unable to access medicare. If that were to be the case, the court would not hesitate to find that there are exceptional or special circumstances to justify the grant of bail awaiting surrender.
- In Queen v. Spilsbury, 2 Q.B. Div. (1898) 615, it was held that the Qneen's Bench had, "independently of statute, by the common law, jurisdiction to admit to bail," but that was a case arising under the Fugitive Offenders Act, and the distinction, existing ordinarily, between rendition between different parts of Her Majesty's dominions, and cases arising under the Extradition Acts, was pointed out. The court, while ruling that the power to admit to bail existed, held that as matter of judicial discretion it ought not to be exercised in that case. We are unwilling to hold that the Circuit Courts possess no power in respect of admitting to bail other than as specifically vested by statute, or that, while bail should not ordinarily be granted in cases of foreign extradition, those courts may not in any case, and whatever the special circumstances, extend that relief. Nor are we called upon to do so as we are clearly of opinion, on this record, that no error was committed in refusing to admit to bail, and that, although the refusal was put on the ground of want of power, the final order ought not to be disturbed. The affirmance of the final order leaves it open to the demanding government to withdraw the proceeding first initiated and proceed on the subsequent application, the pendency of which, as called to our attention, we do not think required us to dismiss this appeal. Order affirmed.
- It is acknowledged that bail may be granted but the court retains the discretion to grant or not to grant depending on the circumstances of the case and in the exercise of that jurisdiction the court must act judiciously and ensure that the interests of justice are not compromised in extradition matters since a single act that may precipitate the disappearance of a fugitive offender against whom an unchallenged extradition order is in force is likely to undermine the standing of a country in the international plane.
- In WRIGHT Vs HENKEL No. 661 SUPREME COURT OF THE UNITED STATES 190 U.S. 40; 47 L. Ed. 948; 23 S. Ct. 781 Argued April 28, 29, 1903
June 1, 1903: - The court held tha;-‘’Bail cannot ordinarily be granted in extradition cases, but it is not held that the Circuit Courts may not in any case, and whatever the special circumstances, extend that relief.
- No doubt from this holding of the court the courts are less inclined to grant bail in extradition case but as stated elsewhere in this ruling the courts in Kenya would grant bail in all suitable cases thanks to our robust Bill of Rights chapter in our constitution.
- In Juma v Republic (Criminal Application E023 of 2023) [2023] KECA 1138 (KLR) (22 September 2023) (Ruling) the court of appeal held;-
- ‘’As the applicant correctly says he is the subject of protection through the orders we gave on May 12, 2023 prohibiting his extradition to USA. The applicant says that he is ailing and there are no or any proper facilities to attend to him at the police station. It is not enough for the respondent to respond by saying that appropriate arrangements can be made for him to be attended. It has not been demonstrated that he is a flight risk. There is no reason to deny bail. In the premises we allow the application on the following terms:…..’’
- The applicant in the decision cited above was challenging his extradition and the Court of Appeal proceeded to grant bail.
- In the instant case there is not challenge to the extradition order and the applicant has expressed willingness to submit to the U.S authorities as per the extradition order. The applicant unlike in the Juma case, does not have an order protecting him from surrender from this country thus the matter is entirely in the hands of the relevant minister.
- It is the finding of this court that given that the state has indicated that they intend to remove him within the next 10 days, the court is not inclined to grant bail pending surrender since the fugitive. The applicant has not presented any exceptional or special circumstances to warrant his release on bail.
- The law provides under Section 9 of the Extradition (Contiguous and Foreign Countries) Act Cap 76 of the law of Kenya that;-
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