DPP Keriako Tobiko plays down row with AG Githu Muigai over extraditions

Monday November 18 2013

Director of Public Prosecution Keriako Tobiko. He has  opposed journalist Walter Barasa’s bid to stop his extradition to the International Criminal Court. Tobiko termed Mr Barasa’s contention that the offences he is accused of can be tried in Kenya as baseless and unfounded. PHOTO/FILE

Director of Public Prosecution Keriako Tobiko. PHOTO/FILE 

More by this Author

Director of Public Prosecutions Keriako Tobiko has said that the reported rift between his office and that of the Attorney-General is “not a big issue at this time.”

In a telephone interview with the Nation on Monday, Mr Tobiko said that the disagreement over who should be handling extradition cases was only a professional misunderstanding which has since been resolved.

“My relationship with the Attorney-General (Githu Muigai) is extremely cordial. Professionally, we have come a long way and we have been working very closely together. Of course, like any other professionals, we do disagree on certain issues,” he said.

“But it is nothing personal. On this particular issue, we agree on the substance. We have been calling meetings since the weekend and I think all of us have agreed on the way forward, so let us not blow these things out of proportion.”

Prof Muigai on Sunday was equally diplomatic over the matter, saying in an interview with the Nation that his relationship with Mr Tobiko remains friendly and that the two have been collaborating on a number of issues related to the law. (READ: I’m not at war with Tobiko, says Githu)

“My working relationship with the DPP is professional and cordial and we have been working together very well,” he said.


On Sunday, the Nation reported that Mr Tobiko had protested the AG’s attempts to clip his powers in dealing with extradition cases. (READ: Tobiko and AG duel over extradition)

Mr Tobiko had written a letter to the Leader of Majority Adan Duale to demand that certain clauses in the Miscellaneous Amendment Bill 2013 be deleted because they deprive his office of legal authority to handle extradition proceedings.

The DPP’s office is pursuing cases against Yagnesh Devani, thought to be holed up in Britain, but who is wanted to answer for the multi-billion shilling Triton oil scandal, and televangelist Gilbert Deya who is facing charges of child abduction who authorities want sent back from London to face the law. (READ: Kenya seeks warrants for Interpol suspects)

“I take the proposed amendment as an attempt to prejudice the determination of constitutional petitions relating to extradition. My office is handling a number of extradition requests by Kenya to other countries and by other countries to Kenya, which request would be seriously compromised by the proposed amendment,” said Mr Tobiko in the letter.

But on Monday, Mr Tobiko told the Nation: “We seem to have come up with a compromise position that would make us progress. So, I don’t think it is a big issue at this time.” He did not clarify the position.


Some of the current extradition cases started before the current Constitution was passed in 2010, when the DPP’s office was a sub-department in the AG’s office.

Article 157 (10) of the Constitution empowers the DPP to start criminal proceedings or any person or authority without command from any other authority. But 157 (12) allows Parliament to enact a law that would grant prosecution powers to another body other than the DPP.

But since 2010, Parliament has passed two laws that have further distinguish their roles. The laws include the Office of the Attorney-General Act 2012 and the Office of Director of Public Act of 2013.

“The two laws indicate that the DPP has custody over criminal proceedings and prosecutions which include extradition proceedings. That is why when the AG received warrants of arrest against Walter Barasa, he had to pass it over to the DPP’s office,” a source at the DPP’s office told the Nation on Sunday.

But the official in the DPP’s office admitted that while the DPP is also currently handling extradition requests against former Nambale MP Chris Okemo and former Kenya Power boss Samuel Gichuru who are wanted by the Island of Jersey to face charges of money laundering, it is the AG’s office which has been the central point of communication with external bodies.

For example, when Archbishop Deya argued in court in London that Kenyan prisons are unsafe for him, Prof Muigai swore an affidavit to refute that claim, the source said. It is argued that it is the Attorney-general’s office which is organising the repatriation of monies Mr Okemo and Mr Gichuru are accused of stashing in Jersey.