A US judge has rejected a move by attorneys for the Akasha brothers to show that the two Kenyans were “forcibly kidnapped” and taken into detention in New York in violation of a US-Kenya extradition treaty.
The ruling by Judge Victor Marrero undercuts the Akashas' effort to avoid trial on drug-smuggling charges by claiming that the US court lacks jurisdiction on their case.
Defendants Baktash and Ibrahim Akasha had sought to compel the US government to hand over documents related to their “extradition and/or expulsion from Kenya.”
After three months of deliberation, Judge Marrero decided on Monday that the brothers had failed to persuade him that the documents would be relevant to a “non-frivolous defence.”
The Akashas, along with Pakistani co-defendant Gulam Hussein, are thus one step closer to a scheduled trial in October that could result in their being sentenced to life imprisonment.
Ibrahim Akasha, 42, stated in a sworn affidavit earlier this year that he was arrested in Mombasa on January 28, 2017, by several armed individuals who identified themselves as Kenyan police.
Mr Akasha said he was taken to a “small, dark, very hot, windowless room” where he was kept without food and water for two days.
He was kicked and beaten during that time, the statement added.
On January 30, 2017, Ibrahim and Baktash Akasha were transferred to the custody of US Drug Enforcement Agency personnel, who flew them to New York.
US prosecutors had earlier charged them with conspiracy to smuggle 98kg of heroin into the US.
At the time of the duo's extradition from Kenya, a Mombasa court was hearing a petition on whether they be taken to New York to stand trial.
“The allegations that they were removed from Kenya before they were formally extradited do not run afoul of any provisions of the [Extradition] Treaty,” Judge Marrero wrote in his July 2 ruling.
The treaty does not stipulate that extradition is the only means by which a Kenyan national may be transferred to the US for criminal prosecution, he noted.
Moreover, the judge added, “there is no indication that the government of Kenya has raised any objection to the prosecution of the Akashas in this court.”