Kunga v Republic
| Jurisdiction | Kenya |
| Date | 08 April 1975 |
| Court | High Court (Kenya) |
(Kneller J.)
The individual in international law Extradition In general Procedure of extradition Grounds on which extradition may be refused Question before the extraditing court Whether sufficiency of the evidence relevant Triviality of the offence, bad faith, injustice and oppression Whether relevant Relevance of the penalties for the offence in the requesting country Extraditable crimes Charge of stealing by a person in the public service The law of Kenya
Summary: The facts:Kunga was arrested in Kenya at the request of Uganda for extradition to Uganda where the charge against him was of the offence of stealing by a person in the public service. Kunga asked for an order of discharge on the following grounds:
(1) there were no materials to show that the Ugandan authorities had any evidence or sufficient evidence against him;
(2) the seriousness or triviality of the charge was not shown for there were no particulars of the charge;
(3) the punishment for the offence, which was possibly death by firing squad, had not been considered by the magistrate, and
(4) the trial in Uganda was unlikely to be fair.
Section 16(3) of Kenya Extradition Contiguous and Foreign Countries Act provided that the magistrate could make appropriate orders including that of discharge if it appeared to him
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
Uganda was a country to which Part III of the Act applied.
Held:(1) The Court will only examine the evidence to find whether there was any evidence before the magistrate for the purposes of committal; it will not consider the sufficiency of the evidence.
(2) Under Part III of the Act, however, the magistrate should not consider evidence of any sort except that of relevance to identity and to section 16(3) of the Act.
(3) Any charge of stealing by a person in the public service, if the sum is reasonable in amount, should be investigated.
(4) The allegation of the possibility of unfair trial would be rejected as it was neither supported by evidence nor was it a matter of common knowledge.
(5) The point about the penalty for the offence, however, ought to be considered. The matter would accordingly be sent back to the magistrate for receiving evidence relevant to section 16 on the particulars and details of the charge and penalties involved in Uganda.
The following is the text of the judgment of the Court:
John Benjamin Mule Kunga is a M'Kamba adult employed by the East African Railways. He questions the legality of an order dated 18 March 1975 made by the senior resident magistrate, Nairobi, committing him to the custody of the Commissioner of Police Nairobi or any other police officer working under him for production before the chief magistrate, Gulu, Uganda.
He does so by a summons in chambers under s. 16 (4) of the Extradition Contiguous and Foreign Countries Act (Cap. 76) and s. 389 of the Criminal Procedure Code (Cap. 75). I adjourned the matter into open court.
Let me set out s. 16 (4) of the Act and s. 389 of the Code:
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.
389. (1) The High Court may whenever it thinks fit direct:
(a) that any person within the limits of Kenya be brought up before the court to be dealt with according to law;
(b) that any person illegally or improperly detained in public or private custody within such limits be set at liberty;
(c)
(d)
(e) that any prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f)
Beginning with the Code first, s. 389 provides the court with the power to issue directions in the nature of habeas corpus.
The procedure in such cases is regulated by rules of court made by the Chief Justice under s. 389 (2) being The Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules. The rules have not been followed as closely as...
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