The Office of the DPP has lauded the Supreme Court for giving it the green light to begin extradition proceedings against former Cabinet minister Chris Okemo and ex-Kenya Power CEO Samuel Gichuru.
They will be extradited to Jersey Island to face theft and money laundering charges.
In a statement on Friday, ODPP chief of staff Lilian Okumu-Obuo said, “The ruling is a big win for the ODPP and mwananchi in the war against transnational and organised crime including but not limited to corruption and money laundering.”
She added that the office of the ODPP remains committed to executing its constitutional mandate in accordance with the rule of law, due regard to the public interest, the administration of justice, and avoidance of abuse of the legal process.
In a majority decision, Justices Martha Koome, Mohammed Ibrahim, Smokin’ Wanjala, and Njoki Ndung’u held that extradition proceedings are criminal in nature and that the authority lies with the DPP and not the office of the Attorney General as had previously been held by the Court of Appeal.
Only Judge William Ouko dissented on this point.
Ouko said because extradition is a process and not a prosecution is undertaken in the authority of the requested state, it is only the office of the Attorney General that has the authority to commence and undertake such proceedings.
For that reason, he concluded that extradition is not criminal in nature and the DPP has no powers to issue ‘Authority to proceed’ or institute extradition proceedings as he did in the Gichuru case.
In March 2018, Court of appeal judges Erastus Githinji, Hannah Okwengu, and Jamillah Mohamed quashed the extradition of Okemo and Gichuru saying the process had been wrongly initiated by the prosecution’s boss.
Aggrieved with that decision, the DPP moved to the Apex Court.
In what appeared like a supremacy battle, none of the two top legal offices appeared to agree on who should affect the proceedings.
When the matter was being heard before the Apex court, the AG through Emmanuel Bitta said the mandate to extradite Kenyans wanted for offences in foreign countries falls under his office and not the DPP’s.
He said extradition is not criminal and entails unique proceedings that cannot be handled through the DPP’s office on behalf of the nation.
But the DPP maintained its position saying extradition proceedings are criminal in nature and it is within their mandate to affect them and not the Attorney General.
Special Prosecutor Taib Ali Taib said there was never any dispute between it and the AG as to who was responsible for the extraction proceedings.
“This is something that has confounded us. Prior to all this, there was no doubt in AG’s mind that the power lies with us. For all those 10 years, it has been the DPP who has been executing that mandate,” he said.
The Supreme Court Judges said the delay in deciding which one of the two offices is responsible for matters of extradition is ‘absolutely ludricous’.
“For me, whether it is the office of the Attorney General or the DPP, the most important thing is that this court has brought this circus to an end and the proceedings that have been pending in the subordinate court for over ten years can now get going,” Justice William Ouko said.
The Apex court allowed the appeal by the DPP and set aside the judgment of the Court of appeal.
The court said the proceedings before the magistrates’ court are to continue on a priority basis.
“For the avoidance of doubt the word ‘continue’ includes commencing afresh which course of action is to be determined by the DPP should it be necessary,” they said.
On June 6, 2011, the Attorney General of the Republic of Kenya received, on behalf of the Government of Kenya through the British High Commission, Nairobi a request for the extradition of Gichuru and Okemo from the United Kingdom on behalf of the Attorney General of Jersey.
The AG then handed over the extradition request to the office of the DPP which was then a department in the office of the AG.
The DPP after due consideration issued an “Authority to Proceed” dated 6th July 2011 to the Chief Magistrate pursuant to section 7(1) of the Extradition Act
It is alleged that both Okemo and Gichuru accepted bribes from foreign businesses that contracted with KPLC and hid the money in Jersey by causing the foreign contractors to make payments into the bank accounts of a Jersey company called Windward Trading Limited.
It is also alleged that Gichuru was the beneficial owner of the Jersey company which he controlled by using agents and that the money paid to the bank account of the company was distributed according to the instructions given by Gichuru’s agents including to personal accounts of Okemo and Gichuru in Jersey.
Okemo is charged in the Royal Court of Jersey with thirteen counts relating to the transactions in the accounts committed in the Island of Jersey under Jersey law between July 1, 1999, and 2001.
On the other hand, Gichuru is charged in the same court with forty counts for offences allegedly committed under Jersey law in the Island of Jersey between 1991 and 28th June, 2000.
