Supreme Court to hear Okemo, Gichuru extradition case

The Supreme Court will hear arguments and determine whether former Finance minister Chris Okemo and former Kenya Power boss Samuel Gichuru should be extradited to the island of Jersey for prosecution over theft of public funds and money laundering

Justices will interpret the Extradition Act and clarify who between the Attorney-General and the Director of Public Prosecutions (DPP) has the legal authority to trigger extradition proceedings in court.

The DPP moved to the Supreme Court after the Court of Appeal quashed the extradition of Mr Okemo and Mr Gichuru in March 2018 following a finding that the process had been wrongly started by the DPP. In the appeal, the DPP wants the appellate court’s decision set aside.

Mr Okemo served in President Daniel Moi’s government as the minister for Energy between 1999 and 2001 while Mr Gichuru was the managing director of Kenya Power between November 1984 and February 2013.

The Supreme Court will hear the main appeal on October 5 after the judges took out from the hearing list a DPP request for an order staying the execution of the Court Appeal’s decision.

Mr Okemo and Mr Gichuru are accused of accepting bribes from foreign businesses that had contracts with Kenya Power and hid the money in Jersey by causing the contractors to make payments into the bank accounts of a Jersey company called Windward Trading Ltd.

It is also alleged that Mr Gichuru was the beneficial owner of the Jersey company, which he controlled by using agents, and that the money paid into the bank accounts was distributed according to the instructions given by Mr Gichuru’s agents, including into the personal accounts of Mr Okemo and Mr Gichuru in Jersey.

Mr Okemo is charged in the Royal Court of Jersey with 13 counts relating to the transactions made between July 1999 and 2001.

Mr Gichuru is charged in the same court with 40 counts for offences allegedly committed between 1991 and June 28, 2002.

In his appeal, the DPP is challenging the decision of the appellate judges to quash a High Court ruling that allowed the government to extradite the two men.

Appellate judges Erastus Githinji (retired), Hannah Okwengu and Jamila Mohammed declared that extradition proceedings instituted in a magistrate’s court by the DPP were not approved by the Attorney-General and were therefore invalid and struck them out.

In the March 2, 2018 judgment that served as a temporary reprieve for Mr Okemo and Mr Gichuru, the appellate judges ruled that only the Attorney-General can start and conduct extradition proceedings.

The DPP was left with two options – start the extradition process again or appeal against the judges’ decision. He chose the latter.

Faulting the High Court for upholding the extradition proceedings started by the DPP in July 2011, the appellate judges ruled that neither the Constitution nor the ODPP Act expressly confers on the DPP the responsibility to conduct extradition or foreign relations on behalf of Kenya.

The judges said the High Court erred in concluding that because proceedings were criminal in nature, it was the DPP’s constitutional responsibility to conduct them. The High Court ruling was issued on December 18, 2015 by Justice Isaac Lenaola, now a Supreme Court judge.

“The High Court failed to appreciate that the Extradition Act which confers responsibility on the AG had been revised up to 2012. The presumption is that the National Assembly was aware of the provisions of Article 157(6) of the Constitution when it revised the Extradition Act and retained the office of AG as the competent authority,” the Court of Appeal ruled.

The judges also said the High Court failed to appreciate other relevant laws including the Extradition (Contiguous and Foreign Countries) Act, which had been revised up to 2014.

The High Court also failed to appreciate that the Mutual Legal Assistance Act was enacted after the Constitution had conferred on the AG the responsibility of dealing with extradition and provision of mutual legal assistance.

The legal battle between the government and its two former officials started after June 6, 2011 when the Attorney-General received, on behalf of the government, through the British High Commission, a request to extradite Mr Okemo and Mr Gichuru.

The request was attached to 13 bundles of documents, including the indictments filed in the Royal Court of Jersey against the two and a summary of the evidence.

Before the request was made, the Jersey court had issued warrants for the arrest of the two on April 8, 2010 and April 20, 2011.