A businessman wanted in Rwanda for fraud will remain in custody in Nairobi as he awaits a ruling on his release on bail pending determination of an extradition application.
The prosecution made an application opposing the release of Nathan Loyd Ndungu on bail on grounds that he is a flight risk.
Senior Principal Magistrate Bernard Ochoi will deliver the ruling on 4th Friday 2022.
The prosecution wants the fugitive to be detained for 21 days pending the receipt of the formal extradition documents from Rwanda.
Ndungu, 52, was tried and convicted in absentia to five years in prison after he was found guilty of fraud, deceit and selling property belonging to another person.
At the time of the trial, the fugitive had fled Rwanda prompting a Red Alert notice to be issued.
Prosecution counsel Catherine Mwaniki told the court that Kenya has porous borders which might enable the fugitive to leave the country if released on bail.
“The Republic of Rwanda has no extradition treaty with the United States of America and if he returns, there is a possibility of the Republic of Kenya failing in its treaty obligations being a country of nations,” said Mwaniki.
The court heard that Ndungu managed to leave Rwanda with a red notice in place and therefore, there was a possibility of him escaping again if released on bail.
Lawyers’ objection
Ndungu’s lawyers Danstan Omari and Cliff Ombeta opposed the application to detain him on grounds that bail is a constitutional right.
Ombeta told the court that nothing had been produced before court to show that his client had been tried and convicted.
He added that for one to be extradited for an offence in a certain country, the offence must also be an offence in this country.
“That offence must be in the list of offences that you extradite for,” added Ombeta.
Omari submitted that the preoccupation by the state to ship Kenyans to other jurisdictions is a preoccupation of only the Kenyan government.
“Other States, other countries protect their citizens. We have a very functional judiciary in this country to international standard vis a vis the Rwandan Judicial process,” stated Omari.
Omari said the borders of Kenya are intact and therefore a shame to for the prosecution to state that we have a porous border.
He accused the prosecution of speculating about the extradition documents yet they were before court.
READ:www.lawandpowerkenya.com/couple-charged-with-sh-18-5m-avocado-trade-fraud
The lawyers claimed their client was a Kenyan citizen and not at all a flight risk.
The prosecution responded that the right to bail is not absolute but a discretion of the court.
“The difference now is the fugitive is now aware there is an extradition application being made therefore raising the probability of him absconding,” added Mwaniki.
The fugitive was arrested Interpol National Central Bureau on 31st January 2022 at Jomo Kenyatta International Airport upon landing from the USA.
He was thereafter detained at Parklands police station pending verification of the information contained in the Red Notice.
According to court documents, the fugitive was then handed over to the Director Transnational Organized Crime Unit.
The court heard that Ndungu was tried in September 2012.
Ndungu was born in Mombasa, Kenya and has dual citizenship as Kenyan and American.
It is alleged that at the time he committed the offence, he was the Chief Executive Officer of DN International and resided in Kacyiru Sector, Gasabo District in Kigali Rwanda.
However, In 2017 Ndungu, through a lawyer, filed an opposition challenging the 2012 judgment.
The Kacyiru primary court examined the opposition and dismissed in line the Rwandan Code of Criminal Procedure.
The code stipulates that a person who files an opposition must appear in person if he/she was ordered to do so in the judgment rendered in absentia or the judgment rendered in absentia ordered him/her personal appearance as a condition for admissibility of an opposition.
In the meantime, Ndungu will be detained at Gigiri police station. The court also ordered he be allowed access to medication and use of his gadgets.
