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AG, Haji fight over Okemo and Gichuru extradition case

By Paul Ogemba | Oct 22nd 2021 | 3 min read


Former Kenya Power and Lighting Company Managing Director Samuel Gichuru with former Finance Minister Chris Okemo at the Nairobi Law Courts in February 2016. [File, Standard]

The Director of Public Prosecutions and the Attorney General have failed to agree on who should take charge of extradition proceedings against two former senior government officials.

Their presentation before the Supreme Court yesterday escalated the fallout between the two offices as both maintained that they are the ones to take charge of extradition proceedings against former Finance Minister Chris Okemo and former Kenya Power boss Samuel Gichuru.

Okemo and Gichuru are wanted in the United Kingdom’s Jersey Island to face charges of money laundering and misconduct in public office. The DPP, though his assistant Daniel Mule, told the Supreme Court that extradition proceedings are criminal in nature and it is his office that can place the request before a magistrate to issue the extradition orders.

“The AG’s office is expressly forbidden from performing any criminal functions. The DPP was within the constitutional limits when it initiated the process and we are asking the court to allow us continue with the proceedings,” said Mule.

According to him, the Court of Appeal misinterpreted the law when they found that it is only the AG that can initiate extradition proceedings against Kenyans wanted to face criminal trials in foreign countries.

But the AG, through State Counsel Emmanuel Bitta, defended the Court of Appeal findings, arguing that extradition relates to mutual legal assistance between different countries that can only be undertaken by the state law office. “The Court of Appeal correctly analysed the law and came to the conclusion that extradition relates to international treaties, which are handled by the executive arm of the government and not the DPP,” said Bitta. The AG was supported by Okemo, through lawyer Fred Ngatia, who submitted that it will be wrong for the country to surrender its citizen to a foreign country when the person has not been convicted of any offence.

Ngatia argued that extradition proceedings are purely the function of the AG who even has the power to cancel any extradition order issued by a magistrate.

“The law the DPP is relying on was already repealed by Parliament, which means he has no power to initiate extradition proceedings. The DPP can only prosecute criminal cases in Kenya since extradition is a ministerial function that can only be performed by the AG,” he said.

Lawyer Waweru Gatonye representing Gichuru also supported the AG arguing that extradition are international treaties between countries which can only be done by the executive arm of government.

According to Gatonye, the DPP usurped the AG’s powers when he commenced the extradition proceedings against Okemo and Gichuru when the law does not allow him to.

The fallout between the DPP and AG signalled another long wait for Okemo and Gichuru who have endured the 10-year battle against the extradition to Jersey Island, which started at the magistrate’s court, moved to the High Court, proceeded to the Court of Appeal and now to the Supreme Court.

The two are alleged to have defrauded millions of shillings from Kenya Power and Lighting Company between 1998 and 2002 and hid the proceeds in the UK in offshore accounts.

Following a request by the Jersey Island in April 2011, the DPP started the extradition proceedings before a magistrate’s court but the two moved to the High Court to quash the case, arguing that it was unlawful and against their rights.

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