Torroha v Republic
Court of Appeal, at Nairobi
January 18, 1989
Nyarangi, Gachuhi & Masime JJ A
Criminal Appeal No 163 of 1988
Criminal Practice and Procedure - extradition proceedings – proceedings under the Extradition (Contiguous and Foreign Countries) Act (cap 76) section 14 - procedure in such proceedings - the test to be applied when assessing evidence.
Extradition - extradition proceedings - procedure in such proceedings - circumstances in which extradition may be ordered - duty of court to satisfy itself that the subject will receive a fair trial - Extradition (Contiguous and Foreign Countries) Act (cap 76).
Evidence – accused informing police officer where the other suspect is – whether police under obligation to contain the accussed – Evidence Act (cap 80) section 31 .
The appellant was arrested under provisional warrants under section 13 of the Extradition (Contiguous and Foreign Countries) Act and produced in the Chief Magistrate’s court.
His arrest was followed by production of authenticated documents from Dar – es – Salaam which included a warrant of arrest for the appellant and another person.
The documents were signed by the Principal Resident Magistrates, Kisutu, Dar-es-Salaam whose signature had been verified by the Attorney General of Tanzania.
Also included in the documents were certified copies of proceedings held before the Principal Magistrate’s court wherein the appellant and another were jointly arraigned on five counts four of which related to stealing of travellers cheques.
It was in evidence that immediately the travellers’ cheque went missing from the section where a one Sarah Khadija a Tanzanian national was working she was next found in the Jacaranda Hotel in Nairobi. And upon his arrest it is the appellant who informed the police officers where Sarah was.
The Chief Magistrate discharged and set free the appellant prompting an appeal to the High Court by the Republic.
The High Court allowed the appeal by the Republic and ordered the appellant’s extradition.
On a second appeal by the appellant it was contended on his behalf that the High Court misdirected itself on the onus of proof and that prima facie evidence was not necessary. The appellant further contended that there was no evidence to connect the appellant with the offence being preferred against him in Tanzania. Besides, his counsel submitted that the appellant was never cautioned on arrest.
The appellant therefore faulted the High Court in reviewing the decision of the Magistrate.
1. The proper task of a magistrate before whom the return of a prisoner is sought is as follows:
The Court shall have regard to section 14(1) of the Extradition (Contiguous and Foreign Countries) Act (cap 76). The Magistrate then peruses the documentray and oral evidence and ensures that subsections 1(a) and (b) of section 14 have been complied with.
2. Before exercising his discretion to order the return of the Prisoner, the Magistrate should peruse the entire evidence and understand it, without taking the position of a trial Court. So the degree to which the Magistate has to be satisfied is not expected to be as high as that requested from the analysis and evaluation of evidence adduced in a trial. The Magistrate is under no duty to inquire into the merits of he charges to be preferred.
3. If there is some evidence which discloses a connecting factor between the prisoner and the alleged offences, the Magistrate should order the prisoner to be returned.
4. Any person accused of an extradition crime who is in Kenya shall not be surrendered if the offence for which his surrender is required is one of a political character or return would result in a punishment for an offence of a political character. It is fundamental that there cannot be extradition where fair trial cannot be guaranteed.
5. The High Court was entitled to examine the evidence, to rehear the case, reconsider the material before it and reach its own decision thereon without disregarding the judgment of the magistrate but carefully weighing it.
6. The information which the appellant gave to the police officer about Sarah Khadija was a relevant fact in terms of section 31 of the Evidence Act (cap 86) hence there was no obligation on the police officer to caution the appellant.
7. Section 16 of the Extradition (Contiguous and Foreign Countries) Act (cap 76) had been complied with and there was no doubt the appellant would receive a fair trial in the neighbouring republic of Tanzania.
1. Kunga v Republic  EA 151
2. Ruwala v R  EA 570
3. Kipngetich v R  KLR 392
Simonds, Viscount et al (Eds) Halsbury’s Laws of England London: Butterworths & Co 3rd Edn p 572 para 1178; p 573 para 1179 pp 576- 77 para 1193
1. Extradition (Contiguous & Foreign Countries) Act (cap 76) sections13, 14, 16
2. Evidence Act (cap 80) section 31
Mr O Opiyo for the Appellant.
Mr Etyang for the respondent.