The Supreme Court has ordered the government to extradite former Energy Minister, Chris Okemo, and former Kenya Power boss, Samuel Gichuru.
In a ruling delivered on Friday, November 5, Supreme Court led by Chief Justice Martha Karambu Koome and Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndungu and William Ouko ordered the government to extradite the two to Jersey Island where they are to face theft and money laundering charges.
The Apex court overturned the Court of Appeal ruling dated May 2, 2018, where Justices Erastus Mwaniki, Hannah Okwengu and Mohammed JJ quashed the extradition of the two.
The Appellate Judges ruled that the process had been wrongly initiated by the prosecutions boss. Director of Public Prosecution, Noordin Haji, thus moved to the Supreme Court to request its intervention in the matter.
“The appeal by the Director of Public Prosecutions dated August 10, is hereby allowed. The judgment of the Court of Appeal is hereby overturned,” the five-Judge bench ruled.
It further ordered the case to proceed immediately after it had stalled for 10 years.
"Proceedings before the Magistrates Court which had been triggered by the Authority to Proceed issued on July 6, 2011, by the Director of Public Prosecutions are to continue forthwith on a priority basis either in the same court or a court of competent jurisdiction," they added.
The court also clarified whether extradition proceedings in Kenya are criminal, civil, or of its own kind in nature. Another question that was answered was who between the Attorney General and the Director of Public Prosecutions (DPP) has the legal authority to commence extradition proceedings in court.
The majority - CJ Koome, Justices Ibrahim, Wanjala and Njoki - stated that Article 157 of the Constitution, the relevant extradition treaties, and other applicable laws clearly stipulate that extradition proceedings are criminal in nature in Kenya.
They also directed that the Attorney General will retain the executive authority to receive requests for extradition but the authority to proceed with the same is vested to the Director of Public Prosecutions. The two thus have to collaborate to ensure the process is a success.
“Extradition proceedings are quasi-criminal in nature, having elements of both criminal and administrative law. On the one hand, they commence as foreign policy issues including the execution of international treaties and bilateral agreements between governments.
“On the other hand, they conclude as criminal processes. Therefore, 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. This dual responsibility ought to be properly reflected in national legislation as the current legal provisions are vague and rather untidy,” Justice Njoki Ndungu read the majority’s decision.
Justice Ouko, however, differed with the other four and stated that the extradition process is not criminal in nature but civil. He, nonetheless, concurred with the rest that the delay in deciding which one of the two offices (the DPP and AG) is responsible for matters of extradition is unconscionable and absolutely ludicrous.
“For me, whether it is the Office of the Attorney General or that of the Director of Public Prosecutions, 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 Ouko stated.
All the Judges concurred that it was imperative to solve the case which hang in the courts for 10 years.
Okemo and Gichuru face up to 14 years in jail each if extradited to Jersey and found guilty of the charges preferred upon them.
The former served as Energy Minister in Mzee Daniel Arap Moi’s government. He was also the Member of Parliament for Nambale Constituency. Gichuru served as Kenya Power director between November 1984 to February 2013.
The two were accused of receiving cash bribes worth Ksh1 billion that was wired to Jersey accounts. Half of the amount was recovered and wired back to Kenya.
