Citation
Republic of Kenya, High Court at Nairobi, Criminal Division
Criminal Revision No. 46 of 2017
Ruling Date:Â 17th March 2017
Judge:Â G.W. Ngenye-Macharia
Case Overview
This case involved an application by Celestine Ntarwanda alias Edouard Nsengimana seeking revision of a ruling made in Milimani Criminal Court Misc. Criminal Application No. 26 of 2015. The matter concerned the legality of extradition proceedings initiated against the applicant by the Republic of Rwanda for alleged crimes against humanity.
Key Issues
Jurisdiction and Legality of Extradition Proceedings
Applicability and Legal Force of the Kenya-Rwanda Extradition Treaty of 2009
Procedural Compliance with the Extradition (Contiguous and Foreign Countries) Act (Cap 76)
Domestication of International Treaties within Kenyan Municipal Law
Applicant’s Arguments
The 2009 Extradition Treaty between Kenya and Rwanda was not gazetted or ratified by Parliament, thus not enforceable under Kenyan law.
The treaty had not been domesticated as required by Sections 3 and 11 of Cap 76.
Legal Notice 306 of 1991, which previously provided a framework for extraditable offences, did not cover the offences for which he was being extradited.
As an asylum seeker in Kenya, the applicant’s rights to fair administrative justice needed to be protected.
Relied on case law including:
Caroli Omondi v. African Trade Insurance Agency [2011] eKLR
R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5
Democratic Alliance v. Minister of International Relations (South Africa)
Respondent’s Arguments
The proceedings were initiated under Part III of Cap 76, which allows for extradition based on reciprocal backing of warrants rather than a formal treaty.
Legal Notice 300 of 1991Â remains valid and is the applicable order allowing Part III to apply to Rwanda.
The principle of Pacta Sunt Servanda and Articles 2(5) & 2(6) of the Constitution supported honoring international obligations.
Emphasized international cooperation as called for in UN Security Council Resolution 2150 (2014).
Court’s Determination
Treaty Justiciability: The Court held that while treaty-making is a prerogative of the Executive, the question of a treaty’s applicability in Kenya is justiciable.
Part II vs. Part III: The court found that the extradition proceedings were initiated under Part III of Cap 76 (Sections 12–14), not under the treaty-based Part II.
Treaty Status: The 2009 Treaty had not been properly domesticated and was therefore not binding under Kenyan law.
Effect of Legal Notices: Legal Notice 306 of 1991 was implicitly repealed by the 2009 Treaty, but since that treaty was not properly ratified, Legal Notice 300 of 1991 remained applicable.
Extraditable Offences: Upon applying the conduct test (as opposed to the ingredients test), the Court held that the offences described in the international warrant amounted to extraditable offences under the Schedule to Cap 76 (organized crime-related).
Outcome
The Court dismissed the application for revision.
It held that the extradition proceedings were legally and procedurally sound under Kenyan law.
The offences met the threshold for extradition as defined in Cap 76, and thus, the matter could proceed in the lower court.
Legal Significance
Reinforces that international treaties must be domesticated to be enforceable in Kenya.
Affirms the dualist approach to international law under Kenya’s pre-2010 Constitution.
Clarifies the application and procedural distinction between Part II and Part III of Cap 76.
Provides interpretive guidance on using subsidiary legislation (Legal Notices) in the context of extradition.
