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Former AG Amos Wako’s error costs taxpayers Sh10m

By Everlyne Kwamboka | May 6th 2018 | 3 min read
Three appellate judges rule that the former AG's opinion to extradite a Kenyan citizen without a court order or proceedings was in violation of his rights.

An order by former Attorney General Amos Wako to police to arrest a former employee of the International Office  of Migration (IOM) has come back to haunt the country.

Eighteen years ago, police in Nairobi received a request from the United Nations regional crime squad office in Kosovo to arrest a former official.

Moses Tengenya Omweno was wanted in 2000 for fraudulently obtaining Sh8 million from IOM. At the time, Kosovo was a stateless territory managed by the United Nations Interim Administration Mission.

An arrest warrant issued by the District Court in Pristina accompanied the request that saw police officers launch a hunt for Mr Omweno. This was after Mr Wako gave a go-ahead to the deputy Provincial Criminal Investigation Officer, Mary Ngariuki, who was attached to the Kenya Airports Authority to carry out the search and arrest.

On June 2, 2000, heavily armed policemen attached to Interpol accosted Omweno while entering his house at 6pm and bundled him into a vehicle without a warrant of arrest from court. He was driven to Embakasi Police Station in Nairobi.

Forced to board a flight

Four days later, without a court order or extradition proceedings in Kenya, he was forced to board a KLM flight from Nairobi to Amsterdam and later to Kosovo, a repatriation the government said was facilitated by IOM through the Interpol.

In Kosovo, his trial started but the Human Rights and Legal System Monitory section of the UN Mission in Kosovo (UNMIK) intervened and made recommendations for his immediate release on grounds that UNMIK unlawfully requested Kenya to arrest and transfer him to the foreign land.

The human rights section also pointed out that UNMIK police acted in violation of the applicable law and failed to follow provisions of the Fry Code of Criminal Procedure on extradition of persons.

Worried about his well-being, his wife traveled to Kosovo before he was released from jail and spent three nights. When Omweno was finally set free, he paid for an air ticket from Skopje via Zurich via London to Nairobi on June 26, 2000.

Through his lawyer, Dr John Khamiwa, Omweno sued the government in 2001 for compensation, saying his rights were violated by being flown to Kosovo without following procedure.

He argued that at the time of forceful deportation to Kosovo, that country was experiencing anarchy and her institutions including the Judiciary were in shambles.

In 2011, the decision by Wako that led to the extradition of Omweno saw the High Court award him Sh7 million.

“The AG, who is the legal adviser to the Government, clearly misled the Commissioner of Police, which led to the removal of the applicant and his surrender to a foreign country,” the then High Court Judge Jean Gacheche ruled.

Dissatisfied with the decision, Omweno moved to Court of Appeal on the grounds that the judge erred in finding that his forcible removal from the country without a court order or extradition proceedings was not in contravention of his fundamental rights.

He also said the judge erred in declining to award the cost his wife incurred in visiting him in jail plus the amount of money he spent in hiring the services of an Albanian lawyer, Mr Destan Riqiqi.

And last week. three judges increased the compensation to more than Sh10 million. “In the instant appeal, we have perused the record and it is manifest that the removal of the appellant from Kenya was not done under the authority of any law in force in Kenya,” read the Court of Appeal judgment.

Judges William Ouko, Asike Makhandia and Otieno Odek said there was no extradition treaty between Kenya and Kosovo or Yugoslavia that could subject the appellant to extradition proceedings.

The judges said Omweno’s rights were violated because he was extradited without a Kenyan court order and a search conducted in his house without any warrant.

The appellate court set aside the lump sum award of Sh2 million as general damages and substituted it with Sh5 million to cover all the violations of the constitutional rights of the appellant.

The court confirmed the Sh4 million awarded to him by the trial court as punitive damages and another Sh1, 070,035 special damages.

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