Court Okays Extradition Of Gichuru And Okemo To The UK

The Supreme Court has overturned a decision by the Court of Appeal stopping the extradition of Former Cabinet Minister Chris Okemo and former Kenya Power boss Samuel Gichuru to Jersey Island to face trial.

In a majority decision delivered Friday, the country’s highest court determined that the case facing the two is criminal in nature and that the office of the Director of Public Prosecutions (DPP) is free to initiate the repatriation proceedings given that it is legally mandated to handle the case.

The judges had been called upon to determine whether it is the Attorney General or the Director of Public Prosecutions to initiate and conduct Extradition Proceedings.

“It follows that the ‘Authority to proceed’ issued by the Director of Public Prosecutions on 6th July 2011 was valid.” The judges ruled

In the judgment, the judges further ordered that “the Proceedings before the Magistrates Court which had been triggered by the Authority to Proceed issued on 6th July 2011 by the Director of Public Prosecutions are to continue forthwith on a priority basis either in the same court or court of competent jurisdiction,”

The three Supreme Court judges in favor are Chief Justice Martha Koome, and Justices Mohamed Ibrahim and Smokin Wanjala. Justice Njoki Ndungu concurred while Justice William Ouko dissented.

They said the fact that Extradition Proceedings are criminal in nature, divests the Attorney General of any authority to involve him/herself in their initiation. In their opinion, however, the AG retains the Executive Authority to receive Requests for Extradition and to transmit the same to the Director of Public Prosecutions for necessary action.

They said under the current constitutional dispensation, the powers to prosecute any conduct of a criminal nature is the exclusive preserve of the Director of Public Prosecutions.

While dissenting, Justice Wiliam Ouko noted that extradition proceedings are special international legal proceedings based on reciprocity and originating from bilateral and multilateral treaties and agreements between nations, making them matters of international relations that involve the exercise of ministerial or executive responsibility.

“I come to the conclusion that extradition is not criminal in nature but sui generis, and that the Director of Public Prosecutions has no powers to issue ‘Authority to proceed’ or institute extradition proceedings under the Extradition (Commonwealth Countries) Act or any law, as he did in this matter.

On her part, Justice Ndungu held the view that extradition proceedings are quasi-criminal in nature, having elements of both criminal and administrative law. She says while on one hand, they commence as foreign policy issues, on the other hand, they conclude as criminal processes.

“They give equal but complementary roles to both the Attorney General and the Director of Public Prosecutions, with each office required to play its part in the sequence of events that in totality amount to an act of extradition.” She said

All the judges were however in agreement that the case had taken unnecessarily too long to resolve having commenced over ten years ago.

“After several false starts, this Appeal was finally heard and concluded before the Court on 21st October 2021.”

“It is indeed a matter of grave concern to this Court that a case as fundamental, revolving around a critical constitutional question, as this one, has been stuck in our justice system for over ten years for it to be finally resolved! Such dalliance with the exacting demands of justice is neither testimony to our judicial rigour, nor to Kenya’s commitment to its international obligations.” The said

It is alleged that Okemo and Gichuru accepted bribes from foreign businesses that contracted with KPLC and his the money in Jersey by causing the foreign contractors to make payments into the bank accounts of a Jersey company called Windward Trading Limited.

On April 20, 2011, a court in Jersey issued a warrant for the arrest of Okemo and Gichuru over alleged theft and money laundering charges.

But the two successfully challenged their extradition to the British Isle with the court of appeal ruling in their favour in 2018. The ruling by the Court of Appealed had quashed a High Court Judgment made in 2015 that allowed authorities to extradite them.