A US judge has rejected a move by attorneys for the Akasha brothers to show that the two Kenyan citizens 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 over 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 in the US.
Ibrahim Akasha, 42, stated in a sworn affidavit earlier this year that he had been seized in Mombasa on January 28, 2017 by several armed individuals who identified themselves as Kenyan police.
Mr Akasha said he was then taken to a “small, dark, very hot, windowless room” where he was kept without food or water for two days.
He was kicked and beaten during that time, the statement added.
Ibrahim and Baktash Akasha were transferred on January 30, 2017, into the custody of US Drug Enforcement Agency personnel who flew the brothers to New York.
US prosecutors had earlier indicted them on charges of conspiring to smuggle 98 kilogrammes of heroin into the US.
At the time of the Akashas' removal from Kenya, a court proceeding was under way in Mombasa to determine whether the brothers should be extradited to New York to stand trial.
“The Akasha Brothers' 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 Akasha brothers in this court.”
Christopher Cassar, an attorney for Baktash Akasha, said in an email on Tuesday that he is “very disappointed” by Judge Marrero's ruling.
It indicates, Mr Cassar wrote, that “the US government can invade another country like Kenya and kidnap a Kenyan citizen while the Kenyan judicial system is in the process of determining extradition.”