In March 2012, Agnes Wanjiru was seen entering the Lions Court Inn Hotel in Kenya with a British soldier. Her body was discovered two months later in a septic tank with stab wounds. Police in Kenya have long suspected that Agnes was killed by a British soldier posted to the British Army Training Unit Kenya (BATUK) on the outskirts of Nanyuki. 

To date, nobody has been charged or prosecuted in relation to Agnes’ death, even though a 2018 Kenyan inquest found that she was murdered by a British soldier. This could change very soon, however. After a long and protracted investigation beset by difficulties, earlier this year, the Kenyan Director of Public Prosecution appointed a team of prosecutors to review the case. The Times has reported that prosecutors have recommended that charges are brought against the British soldier suspected of her murder.

If the Kenyan authorities do charge the British soldier with murder, the process for him to stand trial in Kenya is complicated. Unless he agrees to return to Kenya voluntarily to stand trial, the Kenyan authorities would need to instigate extradition proceedings.

The Extradition Act 2003

Extradition is governed by the Extradition Act 2003 (amended post Brexit) and the process for extradition depends on the country where the extradition request originates. Category One territories, which consist of EU countries and Gibraltar, are covered by Part One of the Extradition Act. Category Two territories, those with whom the UK has formal extradition arrangements through the European Convention on Extradition, the Commonwealth Scheme, or a bilateral treaty, are covered by Part Two of the Extradition Act.

Category Two territories are separated into two types, Type A countries which are not required to provide prima facie evidence of the offence alleged in the extradition request, and Type B countries which are still required to do so.

Extradition to Kenya

Extradition to Kenya is covered by Part Two of the Extradition Act and Kenya is classed as Type B territory. Should the Kenyan authorities pursue extradition of the British soldier suspected of Agnes’ murder, they must take the following steps:

• Submit an extradition request to the UK Central Authority at the Home Office. The request will be valid if extradition is stated to be for the purpose of prosecuting or punishing a person accused or convicted of an offence in a Category Two territory, and if the request is made by an appropriate authority on behalf of that territory.

• Provided that these basic criteria are satisfied, the Secretary of State will certify the request and send it to the courts.

• The court must be satisfied that there are reasonable grounds for believing that the conduct described in the request is an extradition offence. Generally, the information accompanying a request needs to include:
  • details of the person
  • details of the offence of which they are accused or convicted
  • if the person is accused of an offence: a warrant for their arrest
  • if someone is unlawfully at large after conviction of an offence: a certificate of the conviction and sentence
  • evidence that justifies the issue of a warrant for arrest in the UK, within the jurisdiction of a judge of the court that would hold the extradition hearing.

• Provided that the court is satisfied that enough information has been supplied, an arrest warrant will be issued and the British soldier will be arrested.

• At a preliminary hearing, the British soldier will be brought before the court and asked whether he consents to his extradition. If he does not consent to his extradition, the judge will set a date for the extradition hearing and consider whether the British soldier should be bailed or remanded to prison in the meantime.

• At the extradition hearing, the CPS will represent the Kenyan authorities and the British solider will be entitled to have his own representation. For extradition to be ordered, the judge must be satisfied that the alleged conduct amounts to an extradition offence, that there is prima facie evidence of guilt, and that none of the bars to extradition apply, including that extradition would not breach the British soldier’s human rights.

• Provided that the judge finds in the favour of the Kenyan authorities and the British soldier does not appeal, the Secretary of State will then decide whether or not to order his extradition. The Secretary of State must order extradition unless the surrender of a person is prohibited by certain statutory provisions in the 2003 Act, for example, extradition is prohibited by statute if the person could face the death penalty.

What will happen next?

Extradition proceedings are notoriously slow, particularly in complicated and highly political cases such as this. It is not unusual for extradition proceedings to last many years. The family of Agnes Wanjiru have already waited over 13 years for the person(s) responsible for her death to stand trial in Kenya. Despite recent developments which suggest that a charge of murder may be brought against the British soldier suspected of her murder, it will likely be a long time before that person stands trial, if they do stand trial at all.