Supreme Court rules in favor of DPP in Gichuru and Okemo extradition case to Jersey

Justice Martha Koome Chief Justice of the republic of Kenya

Previously President Uhuru Kenyatta opposed extradition of any Kenyan to face charges abroad. The President and his deputy William Ruto faced charges at the ICC related to the deadly 2007-08 post-election violence

By The Weekly Vision Online

The Supreme Court of Kenya has directed that former Kenya Power CEO Samuel Gichuru and ex-finance minister Chris Okemo have a case to answer in Jersey, a self-governing dependency of the United Kingdom. The court over-ruled the appeal court that blocked the DPP Noordin Haji from extraditing both Gichuru and Okemo to Jersey. The court ordered that the two be extradited immediately to face charges in the Jersey court. The two are accused of stealing and stashing millions of shillings in offshore accounts. Part of the loot was frozen and returned to Kenya.

The ruling ends a 15-year court battle waged by Gichuru and Okemo to block extradition. The AG through Emmanuel Bitta had claimed only his office could extradite Kenyans to face charges abroad and not the DPP, the Supreme Court agreed with the DPP directing the extradition.

Previously President Uhuru Kenyatta opposed extradition of any Kenyan to face charges abroad. President Kenyatta and his deputy William Ruto faced charges at the ICC related to the deadly 2007-08 post-election violence. The violence followed a bungled presidential election and claimed 1350 lives and displaced 650,000. Both Uhuru and Ruto survived the foreign jail scare when witnesses recanted video evidence.

A top ruling party insider told The Weekly Vision that the president is keen on leaving a credible legacy in the anti-graft war. The president recently declared he would not hand over power to “thieves”! The “thieves” he claimed have been stealing Ksh. 2 billion each day

President Kenyatta has repeatedly called for a crackdown on widespread graft in his government. US President Joe Biden is reported to have demanded “results” in the fight against corruption during President Kenyatta’s recent visit to Washington. President Biden and multi-lateral lenders demanded that Nairobi jail “powerful” figures who have formed a habit of stealing billions which they later bank in offshore accounts.

Former Kenya Power CEO Samuel Gichuru and former Minister Chris Okemo

It is this pressure; many say that may be informing the extradition directive by the Supreme Court. Donors have accused suspects of using stolen public funds to drag cases “forever” in court. President Kenyatta has only 9 months in office.

A top ruling party insider told The Weekly Vision that the president is keen on leaving a credible legacy in the anti-graft war. The president recently declared he would not hand over power to “thieves”! The “thieves” he claimed have been stealing Ksh. 2 billion each day! But donors insist they want action, not words! 

The tide has turned against the ageing Gichuru, 81, and Okemo 78. Both men are said to be ailing and the last thing on their mind is a jail stint abroad! A statement from the 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 organized 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 under 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 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 Justice William Ouko dissented on this point.

Justice Ouko said because extradition is a process and not a prosecution, only the office of the Attorney General has the authority to commence and undertake such proceedings. For that reason, he concluded that extradition is not criminal 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 DPP. 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. The AG had claimed that extradition is not criminal and entails unique proceedings that cannot be handled through the DPP’s office on behalf of the nation.

The Supreme Court Judges said the delay in deciding which one of the two offices is responsible for matters of extradition is ‘absolutely ludicrous

But the DPP maintained its position saying extradition proceedings are criminal 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. Before 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 ludicrous. “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 according 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.

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