Devani v Republic of Kenya

This is the judgment of the court to which we have both contributed.

Yangesh Mohanlal Devani (“Mr Devani”), a citizen of Kenya born on 23 March 1965, is the subject of two separate extradition requests by the Government of Kenya (“Kenya”). Both requests concern serious allegations of fraud, said to have been committed by Mr Devani in his capacity as director of Triton Petroleum Limited (“Triton”), a company incorporated and based in Kenya. Triton was engaged in the importation of crude and refined oil. The first extradition request concerns alleged frauds upon Kenya Commercial Bank (“KCB”), Emirates National Oil Corporation (Singapore) Pvt Ltd (“ENOC”) and other petroleum companies. It is said that frauds totalling over £50 million were perpetrated. That extradition request was made in 2011. The second extradition request concerns alleged frauds upon Fortis Bank (“Fortis”). These frauds are alleged to involve over £10 million. This second extradition request was made in 2013. In both cases Kenya requests that Mr Devani be extradited so that he can stand trial. Altogether there are the equivalent of four indictments. There are 19 counts in these indictments (excluding alternative counts) in which Mr Devani is named as a defendant.

Kenya has been designated a Category 2 territory for the purposes of Part 2 of the Extradition Act 2003 (“the EA”). The Secretary of State certified the validity of the first and second extradition requests pursuant to section 70 of the EA on, respectively, 3 February 2011 and 31 October 2013. Mr Devani was arrested in respect of the first extradition request in May 2011 and in respect of the second in November 2013. The two extradition requests were dealt with together thereafter.

Mr Devani challenged both requests. The extradition hearing took place before District Judge Zani (“the DJ”) and started on 10 December 2012. It was protracted. Oral evidence from witnesses and submissions were heard over a period of 11 days between 10 December 2012 and 23 July 2014. This unfortunate delay resulted from a combination of factors and the DJ did not blame any of the parties for it. The DJ handed down two rulings and reasons on 3 September 2014 (one relating to each of the two requests), dismissing all the challenges.

The DJ therefore sent the requests to the Secretary of State on the same day. She ordered extradition on 21 October 2014.

Kenya has not been designated as a country to which section 84(7) of the EA applies. The effect of this is that at the extradition hearing, once the District Judge has decided a number of preliminary matters in favour of the requesting state, he has to determine, pursuant to section 84(1) of the EA, whether “…there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him”. The major part of the evidence and argument before the DJ and the argument on this appeal have concerned the issue of whether (as the DJ held) this requirement was satisfied in respect of each of the charges for which Mr Devani’s extradition was sought.

The second ground of challenge to extradition before the DJ was section 87(1) of the EA, which required the DJ to decide whether Mr Devani’s extradition would be compatible with his rights under the European Convention on Human Rights (“ECHR”). The second principal argument on this appeal was whether the DJ was correct to reject Mr Devani’s contention that, if he were to be extradited, there was a real risk of a “flagrant breach” of his rights under Article 6 of the ECHR. It was alleged that Mr Devani could not receive a fair trial in respect of the charges against him in Kenya. Allied to this was a further argument that the extradition requests are an abuse of the process of the English court.

In relation to these arguments, Mr Devani wished to introduce before us “fresh evidence”. This consists of: (1) a witness statement dated 9 July 2015 from Mr James Nyiha, a Kenyan lawyer, exhibiting documents relating to the Kenyan proceedings; (2) a witness statement from Mr Devani dated 8 September 2015; and (3) an expert report dated 11 September 2015 from another Kenyan lawyer, Mr Wilfred Nderitu, on matters of Kenyan criminal law and procedure. Kenya objected to this court receiving this evidence. At the hearing we received it and read it de bene esse.

The other principal ground for resisting the extradition requests before the DJ and on appeal was also founded on section 87(1). Mr Devani contended that the state of the prisons in Kenya where he would be detained pending trial or if convicted was so bad that his extradition would be contrary to his rights under Article 3 of the ECHR. This was renewed, in a modified manner, in this court.

Before the DJ there were further challenges to the two extradition requests but they were not the subject of the appeal. We heard the appeal over three days on 6, 7 and 8 October 2015.

Triton started business in 2000. Mr Devani was the Executive Chairman and he held 4,999,500 of the total share capital of 5 million shares. The remaining 500 shares were held by a company called Triton Network Solutions. None of the other three directors of Triton held shares in the company.

Kenya has no indigenous oil supplies. Triton traded in oil and petroleum products which were imported into Kenya. Triton bought both crude oil and petroleum products from other companies and sold it on to companies in Kenya under a scheme known as the Open Tender System (or “OTS”). A company called Kenya Pipeline Company Limited (“KPC”) owned an oil storage facility on the Kenyan coast near Mombasa, at Kipevu, which was known as the Kipevu Oil Storage Facility (or “KOSF”). KOSF was used by Triton to store petroleum products which it had purchased and wished to import into Kenya for resale, often under the OTS. Other importers also stored petroleum products at KOSF.

Triton and KPC entered into an agreement dated 8 December 2001 whereby Triton was permitted by KPC to use its facilities to receive, store, transport and deliver petroleum products that Triton imported into Kenya. This agreement was known as a “Transport and Storage Agreement” (or “TSA”). It was replaced by a further TSA dated 2 March 2007 and it was this latter agreement (the “TSA 2007”) which is relevant to the present proceedings.

Pursuant to clause 4.2 of the TSA 2007, the ownership of all petroleum products which Triton delivered to KPC under the agreement was to remain at all times with Triton or its assignees. Under clause 8.2.1, Triton undertook to KPC to maintain sufficient petroleum product stocks globally (excluding those at KOSF) to meet its daily requirements. By the same clause, KPC undertook to Triton that it would “suspend deliveries to Triton with zero or negative entitlements”. In order to keep track of Triton’s stock held by KPC, by clause 8.2.2 KPC was obliged to issue to Triton “Daily Stock Product Entitlement Reports”, daily “Adjustment to Stock Entitlement” (or “ASE”) confirmations, a weekly shipping schedule and weekly KOSF Nominations (ie notices in cases when the discharge place of an oil cargo was to be KOSF). In its turn, Triton was to notify KPC, by Tuesday noon of each week, its weekly delivery requirements for the following four weeks, giving the details of the grade of petroleum product needed and the delivery point: see clause 9.3.3. Clause 10 set out detailed provisions for “storage and stock accounting procedures” and clause 12 set out the procedure for maintaining and determining the quality of the products to be transported and delivered by KPC on behalf of Triton. Clause 16.3 of the TSA 2007 gave KPC a lien over all petroleum products belonging to Triton in the custody of KPC and a right to sell products the subject of the lien in the event of Triton not paying invoices submitted by KPC.

Clause 18 of the TSA 2007 is headed “assignment” and it provided, so far as is relevant, as follows:

“18.1

No party to this Agreement shall assign any part of its rights or obligations under this Agreement except with the prior written consent of the other party, such consent not to be unreasonably withheld.

18.1.1

KPC may delegate the operation of any of its facilities to any company, which agrees to operate under the terms and conditions of this Agreement and KPC Operating Procedures as well as the Guidelines for Aviation Fuel Quality Control and Operating Procedures for Joint Airport Depots and related industry guidelines.

18.1.2

TRITON shall be entitled to transfer ownership of Petroleum Products within the System to any third party having a Transportation and Storage Agreement with KPC. Such transfer of ownership will be subject to excess storage charges as provided in Clause 15.3.

18.1.3

Notwithstanding the foregoing, any rights or obligations conferred or imposed upon any of the parties to this agreement may be exercised fully by any Affiliate or Assignee of the party in question as if such Affiliate or Assignee were the party itself subject to the condition that the parties to this Agreement shall always remain liable for the proper exercise of any right and for the satisfactory performance of any obligation by their Affiliate or Assignee.

18.2

Financiers

TRITON may assign its rights under this Agreement for any specific cargoes to a financier/supplier of the cargo subject to the provisions of a Side Agreement on financed stocks on terms to be agreed upon the parties thereto.”

Under clause 22 of the TSA 2007, disputes are to be dealt with by arbitration in Nairobi, Kenya. By clause 23, the governing law of the TSA is that of the Republic of Kenya. It was not argued either before the DJ or us that the relevant Kenyan law was materially different from English law.

Broadly speaking, therefore, under the terms of the TSA, when petroleum products belonging to Triton were delivered and stored in the KPC installation at KOSF, the relationship between Triton and KPC was, in English law terms, that of bailor and bailee. It would be a contractual bailment, on the terms of the TSA.

There were two further agreements between Triton and KPC that are of central importance to the challenges to the extradition requests. These were two “Collateral Financing Agreements” (or “CFAs”) dated 7 July 2004 and 11 November 2008. The first of these two agreements, (the “CFA 2004”), is called “Transportation and Storage Side Agreement Number 1 Collateral Financing Agreement”. It states that KPC would agree to permit Triton to use stocks of petroleum products held in KPC’s system for the purpose of “collateral financing”. In short, this meant that Triton could use petroleum products held in KPC’s system as security for money advanced to Triton by a third party (eg a bank) to enable it to pay for products purchased before receipt of the sale price, or to purchase further petroleum products in advance of resale by Triton.

The CFA 2004 stated, at clause 1, that it had to be read in conjunction with the TSA (at that stage the TSA 2001) and did not replace or supersede its provisions. Clause 2 confirms KPC’s right of lien. Clauses 3 to 7 provide as follows:

“3.

TRITON PETROLEUM CO. LTD shall advise KPC of the grade and quantity of products to be charged by the Financier of TRITON PETROLEUM CO. LTD.

4.

TRITON PETROLEUM CO. LTD shall advise KPC of the authorized signatories of the Financiers to release such products to the account of TRITON PETROLEUM CO. LTD.

5.

Upon receipt of such authorized instructions KPC shall release the so determined grade and quantity of products to TRITON PETROLEUM CO. LTD.

6.

KPC shall issue regular statements of entitlements at agreed specific intervals to the Financiers of TRITON PETROLEUM CO. LTD by e-mail or other mutually acceptable mode of communication indicating stock balances on the account.

7.

The Financier may request product(s) not to be released to ANY PETROLEUM (K) LTD upon irrevocable undertaking by Financier to pay all costs incurred by KPC as a result of the instruction for any duration of time. Statements of such held products shall be regularly issued to the Financier. These products shall be subjected to the system stock accounting procedures.”

The term “Financier” is not defined in the CFA 2004, nor is it defined in the TSA.

The effect of these clauses in the CFA 2004 is, in summary, that Triton was contractually obliged to inform KPC of the names of the signatories of “the financier” who could authorise the release to Triton of petroleum products held by KPC: clause 4. However, once KPC did receive instructions from one of the authorised signatories, then KPC was obliged to release to Triton the grade and quantity of petroleum products identified: clause 5. KPC was obliged to keep records and was obliged to issue regular statements to “the financiers of Triton” of the petroleum products to which Triton was entitled within the KPC system: clause 6. “The financier” had the power to instruct products not to be released to Triton: clause 7.

Analysed in English law terms, the effect of Triton informing KPC of the “authorised signatories” of a “financier” was to put KPC on notice of the fact that a certain consignment of petroleum product was the subject of a finance agreement and to instruct KPC to hold the product for the account of the “financier” until KPC received instructions from one of the authorised signatories to release the product. When KPC then notified the financier that it was holding the product for the account of the financier, this constituted an “attornment” by KPC, as bailee of those goods to the relevant “financier”. By doing this KPC gave to the “financier” constructive possession of the goods the subject to the finance agreement. The “financier” thereby acquired a security interest in those goods. In English law terms we think that the nature of the security interest was a pledge, which was perfected when the “financier” took constructive possession of the product by means of the attornment to it by KPC.

Mr Jones advanced some general arguments, based on English law we assume, about the ownership of a consignment of petroleum product that had been sold to Triton for delivery at the KPC installation at KOSF, but which was part of a larger consignment of a cargo of the same product in a ship or became part of a larger consignment of the same type and grade that was stored by KPC. In English law the position is, we think, as follows. First, a buyer of goods, such as oil, which form part of an undivided bulk can become the owner in common with others of the entire bulk with a right to withdraw its share of the bulk provided that, under the terms of the contract of sale, the conditions for property passing to the buyer have been fulfilled: see section 20A(3) of the Sale of Goods Act 1979 as amended. Secondly, if a buyer has such a proprietary interest in an undivided bulk, then it must follow that this interest can be used as security for the performance of an obligation owed to another person, eg someone who has advanced money to finance the purchase of goods in return for obtaining a security interest in the goods. Thirdly, if a person takes physical possession of an entire bulk but has notice of the identity of the owners of the bulk and their individual shares in it, then the relationship of bailor and bailee will exist between each owner and the person who has possession. Fourthly, if the bailee then attorns to a third party in respect of an owner’s share in the bulk, the effect will be to put the third party in constructive possession of the bailor’s undivided share in the bulk.

As noted above, the TSA 2007 was a contract for bailment between Triton and KPC which set out the terms on which KPC would take possession and hold then release petroleum products that were owned by Triton. We reject Mr Jones’ argument (which we assume is also based on English law) that KPC could not have been a bailee for Triton of any petroleum product in bulk of which Triton was entitled to withdraw a share. By the same token, we also reject his argument that the financiers to whom KPC gave undertakings to hold product for their account could not thereby have acquired any proprietary or possessory interest in goods. (Footnote: ¹)

KPC and Triton entered into the further Collateral Financing Agreement on 11 November 2008 (the “CFA 2008”). It is also called “Transportation and Storage Side Agreement Number 1” but clause 2 is an additional clause which does not appear in the CFA 2004. Clause 2 provides that:

“KPC hereby consents to the security which has been or which will be granted by TRITON to the bank (financier), including any security over any of the TRITON positive entitlement stocks, Petroleum Products in KPC’s custody and any of their rights arising in, under or in connection with the Transportation and Storage Agreement.”

Clauses 3 to 7 of the CFA 2008 are the same as clauses 2 to 6 of the CFA 2004. Clause 8 is to the same effect as clause 7 of the CFA 2004, even though the wording is not identical.

There was evidence in a statement from Mr Kimelu, the Nairobi Area Manager of KPC in 2008, then Acting Operations Manager of KPC in 2009, that when Triton or another Kenyan Oil Marketing Company (“OMC”) indicated that it wished to use a consignment of oil or petroleum product as security to finance further purchases of oil, then KPC would issue a document undertaking to hold the product within the KPC installation at KOSF and undertaking to hold the delivered product to the order of “the financier”.

Triton’s principal bank was KCB. In 2006 (the exact date is unclear) Triton entered into an Invoice Discounting Facility (“IDF”) with KCB as a means of facilitating the purchase and resale of petroleum products by Triton. Mr Devani signed the IDF terms. KCB agreed to discount “sales invoices/promissory notes in respect of petroleum delivered to selective members of the Open Tender System”. The approved OTS members were set out. The IDF contemplated that the members of the OTS would undertake to KCB that the proceeds of sales of petroleum products which were the subject of the discounting facility would be “channelled through KCB A/c Triton Petroleum”. The IDF terms set out the conditions under which the credit facility would be provided to Triton, which included the following: (1) Triton had to request “invoice discounting”; (2) copies of the sales invoices or promissory notes were to be provided by the selected OTS members as approved by KCB; (3) the relevant member of the OTS had to confirm “copies of delivery” (called “ITT” in the IDF); (4) the relevant OTS member had to provide an undertaking that the proceeds of the sale would be “channelled through KCB A/c Triton Petroleum”.

The IDF also set out the sequence of events to be followed if the invoice discounting facility was used by Triton: (1) Triton was to enter into contracts to supply petroleum to the OTS member; (2) the products were to be supplied through in-tank transfers (ie within the KPC system); (3) Triton had to procure and supply the OTS member with the relevant product using Triton’s own funds; (4) the individual OTS member was to “effect payment within 15 days from the bill of lading date, subject to vessel berthing or immediately upon discharge whichever comes first”; (5) Triton was to present the documents and the promissory notes issued by the individual OTS member to the bank for discounting at the agreed date, up to a maximum of Kshs 250 million at any one time; (6) KCB would debit its “Bills discount account” and credit Triton, less commission and interest. The IDF document also notes, under the heading “risk”, that one of the risks is that the OTS member refuses to honour its undertaking to channel the proceeds of sale through “KCB A/c Triton Petroleum”.

This structure was modified in June 2008 in respect of four invoices which are the subject of the charges in one of the four “Cases” to which we will refer, viz Case 1150.

Triton entered into other similar credit facilities with KCB and also with Fortis Bank (Nederland) NV (“Fortis”). The latter arrangements in particular will have to be considered in more detail in relation to the “Fortis charges”.

By the summer of 2008 Triton was deeply in debt to KCB. Further arrangements for rescheduling the debt were made between KCB and Mr Devani on behalf of Triton. Subsequently, on 10 December 2008, Mr Devani met the directors of KCB. It is said that at that meeting he acknowledged a debt owing to KCB and he agreed to repay it. However, it was not. Receivers of Triton were appointed by KCB on 19 December 2008. They were Mr Abdul Zahir Sheikh and Peter Kahi (“the receivers”).

In late 2008, Price Waterhouse Coopers Limited (“PwC”) were instructed by KPC and the Kenya Ministry of Energy: to carry out a forensic investigation into “alleged irregularities in the administration of the [CFA] between [Triton] and [KPC]”; to determine the extent of KPC’s liability to “financiers”, ie. banks who alleged that oil supposedly held to their order had been dissipated; and to evaluate the responsibilities and possible culpability of the parties involved in the transactions. In April 2009 PwC produced their report on Phase 1 of this undertaking. In the executive summary PwC noted that they had operated under a number of constraints in making their investigations, not least the fact that KCB declined to provide any documentation to support the claim that it made against KPC; nor would KCB allow PwC to speak to any of its staff.

In December 2008 Mr Devani left Kenya for India to attend an annual religious pilgrimage. Whilst in India, during January to March 2009 Mr Devani had negotiations with Mr Charles Keter, the assistant to the then Kenyan Minister of Energy, and others, to settle disputes between Triton, KCB and other parties, including the receivers. The result was a Deed of Settlement dated 16 March 2009 (“the Settlement Deed”). Clause 12.4 of the Settlement Deed provided that KCB and the receivers would “write to the police and/or the Attorney General withdrawing their respective criminal complaints against [Mr Devani] and any other party and request that the criminal proceedings be formally withdrawn”.

Before the DJ, Mr Devani gave evidence that there had been meetings in London on 24 and 26 May 2010 between him, Police Superintendent Alfonce Odhiambo Kamlus and Mr Edwin Okello, who was then an assistant to the Kenyan Director of Prosecutions. According to Mr Devani, Mr Kamlus and Mr Okello told him at those meetings that there was no evidence of criminal conduct against him and that when they returned to Kenya they would file a report to state that the matter was to be treated as civil, not criminal.

The DJ rejected Mr Devani’s evidence on this issue and accepted the evidence of Mr Kamlus and Mr Okello that no such meetings had taken place. Those conclusions of fact are challenged on this appeal. Reliance is placed on the “fresh evidence” in support of a submission that it demonstrates that Mr Okello’s evidence before the DJ was untruthful and that this untruthful evidence resulted in an abuse of the extradition process.

As noted above, there are four “cases” in Kenya, which are the equivalent of indictments. It is convenient to deal with these cases in the order in which they were analysed during submissions to us by Miss Malcolm QC, leading counsel for Kenya. The first, “Case 87”, comprises the three charges relating to Fortis. These charges formed the basis of the second extradition request. They concern the allegedly fraudulent disposal by Triton of a shipment of automotive gas oil (AGO) whose purchase had been financed by Fortis. The charges allege: (1) that between 5 and 7 August 2008 Mr Devani together with others stole the AGO from Fortis; (2) alternatively, that Mr Devani with others fraudulently disposed of the AGO which was mortgaged to Fortis; and (3) that between 29 July and 7 August 2008 Mr Devani and others conspired to steal the AGO.

“Case 1150” comprises three charges, but only the first two relate to Mr Devani. These charges allege: (1) that between 28 July and 1 August 2008 Mr Devani together with others fraudulently discounted four Triton invoices with a total value of US$12,241,873.90, in breach of limits imposed by the KCB and when no oil had in fact been sold by Triton to Total Kenya Limited (“Total”) as represented on those invoices; and (2) that Mr Devani and others stole that sum from KCB.

“Case 1151” comprises four charges, which allege: (1) that between 23 April and 4 December 2008 Mr Devani and others stole 318.656MT of Jet Fuel valued at US$365,974.05, the property of KCB; (2) alternatively, that between 23 April and 4 December 2008 Triton, Mr Devani and others disposed of the Jet Fuel which was mortgaged to KCB without the consent of KCB; (3) that Mr Devani and others between 23 April and 4 December 2008 stole 2360MT of AGO valued at US$215,934.11, which was the property of KCB; (4) alternatively, that Mr Devani and others disposed of that AGO, which was mortgaged to KCB, without the consent of KCB; (5) that between 15 May and 4 December 2008 Mr Devani and others stole 418.13MT of Motor Spirit valued at US$438,031.10, which was the property of KCB; (6) as an alternative, that Mr Devani, Triton and others disposed of the Motor Spirit, which was mortgaged to KCB, without its consent; (7) that between 2 November and 4 December 2008 Mr Devani and others stole 12,782MT of AGO valued at US$7,999,691.39 of AGO, the property of KCB; (8) as an alternative, that Mr Devani, Triton and others disposed of that quantity of AGO, which was mortgaged to KCB, without its consent.

The fourth group of charges are the subject of “Case 18”. These charges allege: (1) that on 5 September 2008 Mr Devani, Triton and others disposed of 13,054.850 cubic metres of AGO (part of a total of 19,186,130 cubic metres), which was mortgaged to Emirates National Oil Corporation (Singapore) Limited (“ENOC”), without its consent; (2) that on 6 October 2008, Mr Devani, Triton and others disposed of 675.592 cubic metres of Jet A1 aviation fuel (part of 4,261.203 cubic metres) mortgaged to ENOC, without its consent; (3) that Mr Devani, Triton and others between 24 and 30 November 2008 conspired to defraud Kenya Shell Limited by falsely representing that Triton had a volume of 4,449.42 cubic metres of AGO, held by KPC, available for sale; (4) that Mr Devani, Triton and others between 27 and 30 November 2008 conspired to defraud Engen Kenya Limited (“Engen”) by representing that Triton had a volume of 567.36 cubic metres of AGO, held by KPC, available for sale; (5) that Mr Devani, Triton and others between 18 and 30 November 2008 conspired to defraud Gapco Kenya Limited (“Gapco”) by representing that Triton had a volume of 228,047 cubic metres of AGO, held by KPC, available for sale; (6) that Mr Devani, Triton and others between 18 and 30 November 2008 conspired to defraud Hashi Empex Limited (“Hashi”) by representing that Triton had a volume of 3047 cubic metres of AGO, held by KPC, available for sale; (7) that Mr Devani, Triton and others between 26 and 30 November 2008 conspired to defraud Muloil Kenya Limited (“Muloil”) by representing that Triton had a volume of 334,93 cubic metres of AGO, held by KPC, available for sale; (8) that Mr Devani, Triton and others between 7 November and 10 December 2008 conspired to defraud ENOC of 1,685.122MT of Jet A1 (aviation fuel) shipped in the MT “Chang Jiang” by issuing a false inventory of stocks held by KPC under a “Collateral Finance account” of Triton and ENOC; (9) that Mr Devani, Triton and others between 7 November and 10 December 2008 conspired to defraud ENOC of 15,966.431MT of AGO shipped in the MT “Summit Europe” by issuing a false inventory of stocks held by KPC under a “Collateral Finance account” of Triton and ENOC; (10) that Mr Devani, Triton and others between 7 November and 10 December 2008 conspired to defraud ENOC of 9,395.596MT of AGO shipped in the MT “Summit Europe” by issuing a false inventory of stocks held by KPC under a “Collateral Finance account” of Triton and ENOC; (11) that Mr Devani, Triton and others obtained US$40,000 from Petro Kenya Limited (“Petro”) with intent to defraud, by pretending that Triton had available for sale an aggregate volume of 2000MT of AGO held by KPC.

Mr Alun Jones QC wished to introduce the “fresh evidence” of Mr Nyiha and others because he wished to submit that the DJ had either been misinformed or had misunderstood the trial process taking place in Kenya. In his main ruling and reasons, the DJ described the history of the Kenyan proceedings as follows (in summary):

The DJ did not go through the chronology of the proceedings in Kenya any further in his main ruling. However, he returned to the trial process at paragraph 402. There he rejected the suggestion that “the judge (sic) dealing with this case will be somehow pressurized into finding him guilty whatever the strength or weakness of the evidence may be”. The DJ therefore appears to have assumed that all three “Cases” referred to in that ruling would be dealt with together by one judge. (It would appear that there is no trial by jury in the Kenyan criminal justice system.) It is fair to note that Kenya’s final written submissions to the DJ did submit, at paragraph 188, that Mr Devani would be “tried before a judge or Chief Magistrate”, which might have been taken by the DJ as meaning that there would be one trial for all “Cases”.

In the Fortis ruling and reasons the DJ referred to the fact that charges were formally laid before the Chief Magistrate’s Court in Nairobi on 18 January 2011. There is no further reference in that ruling to the chronology of the Kenyan proceedings.

Mr Jones made sustained submissions to the effect that the DJ was misled as to the nature of the proceedings in Kenya. We will deal with these submissions below when considering the “abuse of process” argument.

We will consider the issues raised on appeal in the following order:

It has been made clear in a number of cases concerning both Parts 1 and 2 of the EA, that the English court’s jurisdiction to refuse to extradite a requested person under the EA on the ground of “abuse of process” of the English court’s procedure is only a residual jurisdiction (Footnote: ²). The power will not be exercised if other bars to extradition are available. Normally, therefore, the court should only deal with abuse of process arguments if it has dismissed all other challenges under the EA. However, given the way that this case was argued before us, it will be convenient to deal with the abuse of process argument before the arguments based on the ECHR. We will consider the extent to which the “fresh evidence” can be relied upon by Mr Devani in the context of the abuse of process and Article 6 issues.

In the case of a country to which section 84(1) of the EA applies, a three stage process is involved once the DJ is satisfied that the request document itself establishes that the conduct alleged is criminal in accordance with the laws of the requesting state. The first stage, following the decision of the House of Lords in Norris v Government of the United States of America, (Footnote: ³) is to identify, for the relevant charge, the “essence of the conduct” which is alleged by the requesting state. Secondly, the DJ must determine, upon the assumption that the relevant conduct had occurred in the UK, whether that conduct would be an offence under UK law. (Footnote: ⁴) For this purpose, the requesting state will often produce “notional English charges”, identifying the particular UK offence which is said to be constituted by the “essence of the conduct” alleged. Counsel representing Kenya in the present case did this exercise both at the extradition hearing and before us. Thirdly, the DJ must determine whether the requesting state has proved, on the basis of all admissible evidence (taking account of the admissibility rules set out in sections 84(2)-(4), 202 and 205 of the EA), whether there is sufficient evidence to substantiate the conduct alleged.

In R v Governor of Pentonville Prisonex p Alves (Footnote: ⁵) the House of Lords held that under paragraph 7(1) of Schedule 1 to the Extradition Act 1989, which is in different terms to section 84(1) of the EA, the correct approach to be applied by a magistrate on an extradition request was to decide whether there was a case to answer, by reference to the well-known test set out by Lord Lane CJ in R v Galbraith. (Footnote: ⁶) The same approach has been adopted in relation to section 84(1) of the EA: see, for example, the statement of Sir Brian Leveson PQBD at [16] of Ravi Shankaran v Government of the State of India. (Footnote: ⁷)

Putting the matter this way could be mildly confusing. Lord Lane identified the test in Galbraith as the one to be used by judges in criminal trials when they have to decide whether to accede to a submission of “no case to answer” at the end of the prosecution case. Under section 84(1) the DJ has to do the opposite: viz. decide whether there is a case to answer. Furthermore, it is now well established that, in an extradition case to which section 84(1) applies, the court is required to have regard to all the admissible evidence before the court, including that of the requested person. In our view, the correct way to put the matter is to say that the DJ who has to decide whether there is a case to answer for the purposes of section 84(1) must determine whether, on one possible view of the facts, he is satisfied that there is evidence upon which the requested person could be convicted at a summary trial of an information against him, upon the basis of the notional English charges. In other words, the DJ must apply the test referred to at the end of the celebrated passage in Lord Lane’s judgment in Galbraith at 1042, but with the additional gloss that, in deciding whether there is a case to answer, the DJ should consider all the admissible evidence before him, including evidence called on behalf of the requested person.

For convenience we will call this “the prima facie case test”.

As already noted, we think it is convenient to consider the charges by reference to the four “Cases” in the order in which they were presented by Miss Malcolm on behalf of Kenya, viz. Case 87 (“the Fortis charges”); Case 1150, Case 1151; and lastly Case 18. Before we do so, however, we should consider the generic arguments that were advanced by Mr Jones on behalf of Mr Devani on this issue.

First, Mr Jones argues that the DJ approached his task in the wrong way because he sought to determine whether there was a case to answer by reference to the Kenyan law charges rather than by reference to the question: is there a prima facie case in respect of each charge of conduct that would amount to an English law offence?

The DJ set out the leading cases on the prima facie case test at paragraphs 208-211 of his main ruling. He set out in summary form the test that he had to apply at paragraph 239 of his main ruling. In our view, he correctly stated the law. The DJ had been given notional English charges by counsel for Kenya. The DJ’s conclusions on the prima facie case issue are at paragraphs 237 to 243 of his main ruling and paragraph 65 of his Fortis ruling. They are shortly stated, but we are quite satisfied that the DJ’s reasoning does not proceed on the basis that he was considering the test by reference to Kenyan law. Given the way the DJ had stated the test in his main ruling, we are sure that he applied the correct test in both rulings.

Secondly, it is suggested that the DJ misunderstood the key contractual documents by stating that they imposed a duty of good faith, that they were tri-partite contracts, that “mortgages” over consignments of petroleum product had been granted and also by stating that certain contracts required disclosure on the part of Triton. We are satisfied that the DJ did not misunderstand the documents. The statements relied on by Mr Jones appear (except for the “mortgage” point) at paragraph 14 of the main ruling. The DJ was there reciting what Kenya relied upon and the way that counsel for Kenya had put its case before him. When the DJ came to give his conclusions on the prima facie case issue, he did not rely on those statements.

Thirdly, it is argued that the evidence showed, at its highest, that there had been “civil law breaches” of commercial contracts for the supply and sale of petroleum products. In this regard, Mr Jones relied on the terms of the PwC report of 6 April 2009 and the Settlement Deed of 19 March 2009 between KCB and Triton. However, neither PwC nor the parties to the Settlement Deed were in a position to decide or dictate the nature of the actions or inactions disclosed by the underlying documents and the witnesses’ testimony. Whether there is a prima facie case of conduct that would give rise to offences in English law was for the DJ and is now for this court to decide.

Fourthly, Mr Jones submitted that, in circumstances where oil purchased by Triton was intermingled with other product in KPC’s storage system, there was no “identifiable chattel” of which KPC could be a bailee or in which a “financier” could acquire a proprietary or possessory interest as security for sums advanced to Triton. Furthermore, letters issued by KPC to “financiers” undertaking to hold consignments of oil for their account were merely gratuitous promises, unsupported by consideration, and not even contractually enforceable in English law. Consequently, he argued, any onward sales by Triton made without the financier’s consent to the release of product could not involve the conversion or theft of any oil.

In our view, this argument is misconceived. It is based on the faulty premise that there cannot be a proprietary or possessory interest in goods which form part of an undivided bulk. As discussed above, in English law that is not correct where the requirements of section 20A(3) of the Sale of Goods Act 1979 are satisfied. In such circumstances, where KPC issued a letter of undertaking to a “financier” involved in a CFA arrangement to hold a consignment of petroleum product purchased by Triton and received by KPC to the account of the financier, this was from the point of view of English law an attornment which put the financier in constructive possession of Triton’s undivided share in the bulk. If Triton or Mr Devani then dealt with Triton’s relevant share in the bulk in a manner that was inconsistent with the financier’s possessory interest, that would amount to the tort of unlawful interference with goods or, in the old-fashioned term, “conversion”. By the same token, such conduct would amount to an appropriation of property within the meaning of section 1 and 3 of the Theft Act 1968.

Moreover, we do not accept that the undertakings given by KPC to “financiers” to hold consignments of oil for their account were unenforceable in English law. It seems to us that the terms of the CFAs outlined above were clearly intended to confer on the “financiers” enforceable rights to have products which KPC had undertaken to hold to their order retained by KPC until the authorised signatories of the financiers had given instructions to KPC for the products to be released. In English law the financiers would in these circumstances have enforceable rights under the Contracts (Rights of Third Parties) Act 1999 which constituted things in action, even if they did not have any proprietary or possessory interest in any unascertained goods which formed part of a larger bulk. If, as Kenya alleges, Mr Devani with knowledge of the undertaking given to a “financier” dishonestly arranged with others to procure the release of oil by KPC without that “financier’s” consent, thereby depriving the “financier” of the benefit of KPC’s undertaking and exposing the “financier” to a risk of financial loss, then that would amount in English law to a conspiracy to defraud.

We are accordingly satisfied that the essence of the conduct alleged by Kenya which forms the subject of the Kenya charges would, if it had occurred in the UK, involve offences of theft and/or conspiracy to steal and/or conspiracy to defraud.

Fifthly, criticism is made of certain of the notional English charges formulated by counsel for Kenya which alleged that, when instructions were given by Mr Devani on behalf of Triton to KPC to transfer to another petroleum company product which KPC had undertaken to hold for the account of a “financier” in circumstances where (as Mr Devani knew) the “financier” had not authorised the release of the product, the failure to disclose that fact to KPC would, had the conduct occurred in England, have amounted to an offence under section 3 of the Fraud Act 2006. It is submitted that there was no duty of disclosure upon Triton under any contract (or otherwise). We think it correct that Triton had no legal duty to disclose this information – all the more plainly so when KPC already knew that the “financier” had not given any authorisation to KPC to release the product. (Footnote: ⁸) However, the allegation of fraud by failing to make such disclosure was only one, alternative, way in which Kenya sought to translate “the essence of the conduct” into offences under English law, and the fact that this way of framing the case is flawed does not affect the validity of the other notional English charges.

Lastly, it was suggested in Mr Jones’ written submissions that Kenya may not have given full disclosure of documents. This was not a point pursued in oral argument.

The Fortis Charges

It will be recalled that these three charges concern the allegedly fraudulent disposal of a shipment of AGO financed by Fortis. To recap: the charges allege: (1) that between 5 and 7 August 2011 Mr Devani together with others stole the AGO from Fortis; (2) alternatively, that Mr Devani with others fraudulently disposed of the AGO which was mortgaged to Fortis; and (3) that between 29 July and 7 August 2011 Mr Devani and others conspired to steal the AGO.

The AGO which is the subject of these charges was imported by Triton in the vessel “Chem Marigold” and discharged at the KOSF at Mombasa between 28 July and 1 August 2008. Kenya alleges that, immediately after the AGO was discharged from “Chem Marigold”, it was transferred on Triton’s instructions to Total, in breach of a CFA undertaking issued by KPC to hold the AGO for the account of Triton and Fortis until Fortis authorised its release. The essence of the case against Mr Devani is that he dishonestly procured or conspired with others to procure the transfer of the AGO to Total with the knowledge and intention that this would result in Fortis losing its security over the product.

In his ruling dated 3 September 2014 on the Fortis charges, the DJ found that there was ample evidence which satisfied him that a prima facie case had been made out.

For Mr Devani, Mr Jones argues that the DJ was wrong to reach this conclusion. In particular, he submits that there is no evidence capable of establishing that AGO was released by KPC in breach of the undertaking given to Fortis, still less that this was done with Mr Devani’s knowledge and agreement.

The documentary evidence shows that on 29 October 2007 Triton entered into a Facility Agreement with Fortis under which Fortis agreed to finance the importation of oil by Triton by (amongst other means) issuing letters of credit. On 14 July 2008 Triton instructed Fortis to issue a letter of credit under this facility in favour of Chevron to finance the importation of a shipment of AGO on board the vessel “Chem Marigold”. On the same day Triton instructed KPC in accordance with the CFA 2004 to give a written undertaking to Fortis to hold the product received from “Chem Marigold” on account of Triton and Fortis and to release the product only on receipt of instructions from Fortis. KPC duly issued the undertaking on 14 July 2008. On 28 July 2008 Fortis issued a letter of credit in favour of Chevron.

On 14 August 2008 KPC issued a further undertaking to Fortis. This second undertaking was in similar form to the first but now referred to the outturn data and stated that the quantity of AGO received from the “Chem Marigold” which KPC was holding for the account of Fortis was 12,623.239MT. On 28 August 2008 payment was made by Fortis under the letter of credit of Chevron’s invoice for the shipment in the amount of US$17,105,970.

By a fax dated 17 September 2008, Fortis authorised KPC to release to Total 8,000MT of the 12,623.239MT of AGO covered by the undertaking dated 14 August 2008. Fortis gave this authorisation on the strength of a payment undertaking from Total confirming that Total had purchased from Triton 8,000MT of AGO under a contract dated 12 August 2008 and undertaking that, upon delivery, Total would pay the price due under the contract to Fortis.

On 23 September 2008 Mr Devani sent a letter to Total stating that the August contract and the payment undertaking given by Total to Fortis “can be cancelled”. Total informed Fortis of the cancellation by a fax dated 26 September 2008. According to a witness statement made by Mr Rui, the employee of Fortis to whom the fax was addressed, the fax was not received by Fortis until 14 October 2008. On 15 October 2008 Mr Rui and a colleague travelled to Kenya to investigate the position. They met Mr Devani who, according to Mr Rui, did not give any satisfactory explanation of why the August contract between Triton and Total had been cancelled.

On 17 October 2008 Fortis instructed KPC that the authorisation previously given to release 8,000MT of AGO to Total was cancelled. In an email sent on 21 October 2008 Mr Mutua of KPC confirmed to Fortis that, in the light of that instruction, the undertaking issued to Fortis on 14 August 2008 was still valid. KPC also provided Fortis with a spreadsheet which purported to show that the full quantity of 12,623.239MT of AGO received from “Chem Marigold” was still held by KPC for the account of Fortis. Further such confirmation was given in a letter dated 22 October 2008.

On 18 October 2008 Mr Devani signed on behalf of Triton an agreement with Fortis under which Triton agreed to take various steps to make good the shortfall in the value of the collateral which Triton had provided for its indebtedness to Fortis. A further such agreement was made on 24 October 2008, to which Mr Devani was also himself a party. The latter agreement was made after Fortis had been told that the full amount of the cargo discharged from “Chem Marigold” was still being held in storage by KPC on account of Fortis. The terms of the agreement reflected that assumption. The agreement provided (amongst other things) for Triton to provide Fortis with copies of confirmed contracts for the sale and delivery of 12,623MT of AGO to Total during the month of November 2008.

According to the witness statement of Mr Rui, he had meetings with Mr Devani on 4/5 and 28 November 2008, at which Mr Devani reiterated that the AGO was still in storage at KPC’s KOSF installation and stated that it was Triton’s intention to sell the AGO and repay its indebtedness to Fortis.

In November and again in December 2008, Mr Mutua on behalf of KPC gave further confirmations to Fortis that KPC was holding stock consisting of the 12,623.293MT of AGO received from “Chem Marigold” for the account of Fortis. However, on 8 January 2009 KPC sent a letter to Fortis to advise that the information previously given was incorrect and that as at 10 December 2008 the Triton stock held under any CFA with KPC was nil.

What Fortis was told stands in marked contrast to what, on Kenya’s case, actually happened to the AGO imported in “Chem Marigold”. The evidence adduced by Kenya includes a witness statement made by Mr Maganga, Total’s Planning and Supply Manager at the relevant time. Mr Maganga explains that, under a long term contract with Total, Triton had agreed to supply Total with 24,000MT of AGO each month in three lots of 8,000MT per month. According to Mr Maganga, Triton fell behind in performing its obligations under this long term contract. During June 2008 Triton entered into a contract (with the reference “June 08 Lot 2 Batch 1”) to sell to Total 6,492.76MT of AGO. However, Triton was unable to deliver 2,270.976MT of that contractual quantity until 6 August 2008 because Triton did not have stock at the KPC installation. Mr Maganga states that during July 2008 Triton entered into two contracts to supply batches of AGO to Total: the first (with reference “July 2008 Lot 1”) was for a quantity of 8,000MT; and the second dated 25 July 2008 (with reference “July 2008 Lot 2 Batch 1”) was for a quantity of 4,267.38MT

Mr Maganga states that between 5 and 7 August 2008 Triton transferred to Total 12,597.9MT of AGO to meet its obligations under the three contracts identified above. This product was imported in “Chem Marigold”. That still left a shortfall of 1,993.54MT under the second July contract, which according to Mr Maganga, was eventually supplied by Triton during the month of November 2008.

Mr Maganga’s evidence is confirmed by witness statements made by employees of Triton. To transfer the oil Triton issued an ASE. (Footnote: ⁹) Total then issued a matching ASE to confirm the transaction and forwarded both documents to KPC. Triton’s Assistant Supply and Planning Manager at the relevant time, Mr Gendi, gives details in his witness statement of the ASEs under which the total amount of AGO discharged from “Chem Marigold” was transferred by Triton to Total so as to deliver the balance of product outstanding under the June contract and to make deliveries under the two July contracts. Three other Triton employees have all made statements confirming their roles in the transaction: Mr Kosgei, who prepared the ASEs and forwarded them to Total; Mr Kilonzo, Triton’s Supply and Planning Manager at the time who signed the ASEs; and Mr Pathak, the Finance Manager who counter-signed the first ASE.

As part of the importation process, a form (Form PI) must be submitted to the Kenya Revenue authority giving notice of intention to discharge petroleum products. Such forms were prepared for the “Chem Marigold” cargo by Triton’s clearing agent at Mombasa. Copies of the forms have been produced. The person who prepared them, Mr Bikondo, has made a witness statement in which he says that there was a prior arrangement between Total and Triton to have the cargo released directly into the KPC mainline system on account of Total. He accordingly prepared notices declaring that it was Triton’s intention to release the AGO to the KPC mainline account of Total.

There is thus clear and indeed uncontradicted evidence from individuals involved in the transactions on behalf of Total and Triton showing that the entire cargo of AGO discharged from “Chem Marigold” was transferred by Triton to Total to meet obligations of Triton under the June and July contracts for the sale of AGO. The evidence indicates that the transfers were made between 5 and 7 August 2008. It shows that KPC acted on the instructions contained in the ASEs issued by Triton to transfer the product and did so in breach of the undertaking given to Fortis on 14 July 2008 to hold the AGO on account of Triton and Fortis until instructions were received from Fortis for its release.

It follows that, at the time when KPC issued the second letter of undertaking to Fortis dated 14 August 2008 following receipt of the outturn data for the cargo, all the AGO discharged from “Chem Marigold” had in fact already been released to Total without authority from Fortis. The evidence produced by Kenya includes a statement from Mr Kones, the KPC employee who issued the 14 August 2008 letter of undertaking. Mr Kones says that he issued the letter based simply on the receipt of outturn data without reference to the underlying stock position. According to the PwC Report, as at 14 August 2008 KPC’s internal report recording the stock entitlement position of each oil marketing company showed a nil balance for Triton. Thus, when on 17 September 2008 Fortis authorised the release of 8,000MT of AGO to Total, under the impression that the full quantity of AGO discharged from “Chem Marigold” was still being held by KPC, the evidence indicates that in fact the entire cargo had already been released to Total to meet Triton’s obligations under the June and July sale contracts. By that time, therefore, and at the time when Triton cancelled the August contract, the cupboard was bare.

Before the DJ, Mr Devani gave live evidence, the substance of which is recorded in the DJ’s ruling. In his evidence Mr Devani confirmed his awareness of the letter of credit provided by Fortis to finance the purchase of oil from Chevron and of the fact that KPC had undertaken not to release the oil without the agreement of Fortis. Mr Devani did not accept that the oil in question was transferred to Total between 5 and 7 August 2008 and maintained that, if such transfer did occur, he was completely unaware if it. Mr Devani explained the commercial reasons which he said led him to cancel the August 2008 contract with Total, though he appears to have given inconsistent evidence in answer to the question whether he informed Fortis of the cancellation. In his evidence in chief, Mr Devani said that it was for Total – not Triton – to inform Fortis of the cancellation and that he had understood that Total had done so some three days later – although it was apparently only much later that Fortis found out about the cancellation. In cross-examination Mr Devani stated that, immediately after cancelling the Total contract, he told Fortis of the cancellation in a telephone call to Mr Rui – although he then added that the call may actually have been made by one of his Triton employees. The DJ did not accept that the evidence given by Mr Devani in cross-examination on this point was true.

Mr Devani confirmed that, when he met Mr Rui in October and November 2008, he told Mr Rui that the oil was still in situ, held to the order of Fortis. It was Mr Devani’s evidence that he believed this to be the case, based on what he was told by Triton’s Supply and Planning Manager, Mr Kilonzo.

We have summarised the clear prima facie evidence establishing that the AGO discharged from “Chem Marigold” was transferred to Total between 5 and 7 August 2008 on instructions from Triton without the knowledge and agreement of Fortis. The evidence also shows that this was concealed from Fortis until January 2009. The essential question is whether the transfer of the AGO to Total was dishonestly authorised by Mr Devani. We are satisfied that the DJ was correct to conclude that there is a case for Mr Devani to answer in this regard. We state four principal reasons.

First, there is direct evidence given in a witness statement dated 11 May 2009 from Mr Kilonzo that, upon receipt of the product discharged from “Chem Marigold” he received instructions from Mr Devani to issue the requisite documents for transfer of the product to Total. Mr Kilonzo also says that Mr Devani had made arrangements for payment of the applicable taxes to enable the product to be transferred to Total with the duty paid. The fact that the out of court statement of Mr Kilonzo is one by a current co-accused with Mr Devani in the Kenyan proceedings does not make his evidence inadmissible in these extradition proceedings: see most recently Hanif Patel v Government of India. (Footnote: ¹⁰)

Secondly, there is evidence from Triton’s Finance Manager at the time, Mr Pathak, that he was specifically authorised by Mr Devani to counter-sign the ASE for the transfer of oil to supply the amount outstanding under the June contract with Total. Mr Pathak also states that “all transactions involving movement, purchase and sale of petroleum products to other oil marketers was controlled by the executive chairman” (i.e. Mr Devani).

Thirdly, even apart from the direct evidence of these witnesses, it is anyway to be expected that, in circumstances where Triton was in default of its contractual obligations to supply AGO to Total under contracts for June and July 2008, Mr Devani would be keenly interested in how and from what source Triton was going to fulfil those obligations. It is inherently improbable that Mr Devani did not know that Triton had no stock available to meet its obligations or that Triton’s employees would have issued documents to transfer the “Chem Marigold” cargo to Total without instructions from Mr Devani to do so and without his knowledge.

Fourthly, it would be incredible if Mr Devani did not know that the AGO imported in “Chem Marigold” was no longer in stock having been released to meet Triton’s obligations under the June and July contracts with Total when he cancelled the August contract and when he met Mr Rui in October and November 2008 and assured Mr Rui that the product was still held by KPC. We therefore find it difficult to see how those assurances could have been honest. While not by itself conclusive, evidence that Mr Devani lied in October and November 2008 about what had happened undermines the credibility of his denial that he was responsible for dishonestly procuring the transfer to Total of the “Chem Marigold” cargo. It also seems to us inexplicable that, if Mr Devani genuinely believed in October and November 2008 that the product was still held by KPC, he did not at that point take any steps to sell the AGO to Total.

The notional English charges allege conspiracy to defraud by Mr Devani and others. Our task, on appeal, is to decide whether the DJ was entitled to be satisfied that there is evidence upon which, on one view of the facts, the requested person could be convicted at a summary trial of an information against him on the basis of the notional English charges. In our judgment, the DJ was plainly justified in finding that there was sufficient evidence.

Case 1150

These two charges against Mr Devani concern alleged fraudulent use of the IDF agreement with KCB in relation to four particular invoices. The background is that, by June 2008, Triton had become heavily indebted to KCB, which was very concerned by the situation. A meeting took place in June 2008, attended by Mr Devani and Mr Colin Otieno on behalf of Triton, in which it was agreed that four sales invoices in favour of Triton in respect of petroleum product to be sold by Triton to Total to a value of US$12.2 million would be discounted by KCB, and then US$10.7 million of the proceeds of the sale to Total would be applied to reduce Triton’s debts to KCB.

Pursuant to this agreement, Triton sent to KCB a copy of the contract with Total for the sale of 6,492.760MT of AGO for June 2008 and Total’s payment undertaking dated 11 June 2008 to make payment to KCB. The payment undertaking is in the form of an irrevocable undertaking to pay the invoice sum for the petroleum product sold by Triton to Total on the due date into a specified account number at KCB.

On 31 July and 1 August 2008, Triton requested KCB to discount the four invoices. The invoices had not been endorsed by Total to indicate that Total had received the AGO, thus incurring a payment liability. Despite the absence of such an endorsement, on 1 August KCB discounted the four invoices totalling US$12,241,901. At this stage Triton had still not supplied the AGO to Total, nor had Triton supplied KCB with ASEs to evidence the fact that there had been a transfer of AGO from Triton to Total within the KOSF installation. Despite the lack of endorsement on the invoices and the lack of any ASEs, on about 1 August 2008, KCB credited Triton’s account with the discounted sum, thus reducing Triton’s debt to the bank. On 3 August 2008 KCB asked Triton to provide it with ASEs in respect of the petroleum product covered by the four discounted invoices. KCB pressed for the ASEs on several occasions thereafter. On 14 August 2008 an internal Triton email confirmed that Total had not yet been supplied with the oil. On 11 September 2008 KCB again pressed Triton for the ASEs. On 16 September 2008 Mr Gendi of Triton emailed Mr Samson Waka of KCB attaching four ASEs indicating the transfer of the AGO to Total and Mr Waka thanked him for them. In argument before us, Mr Jones accepted that the ASEs supplied by Triton under cover of the email of 16 September were false. No AGO had been transferred. In a letter dated 23 September 2008, Mr Devani “cancelled” the sale contract to Total covered by the four invoices. This in itself confirms that no AGO had been transferred. KCB was not told of this, nor was the sum that had been credited by KCB to Triton’s account (to repay part of its debt to KCB) returned to KCB. As a result of the “cancellation” of the contract, Total was no longer under any payment obligation to KCB.

The effect of these events was therefore that Triton had obtained a credit of US$12.2 million from KCB but had not supplied any product to Total, who had thus not paid any purchase price into a KCB account.

Mr Nathan Kosgei, who worked as a supply analyst at Triton and whose duty was, amongst other things, to prepare ASEs and do a monthly stock reconciliation, gave a statement dated 26 January 2009. He states that he prepared ASEs on the oral instructions of either Mr Gendi or Mr Kilonzo, his immediate superiors at Triton. He states that he prepared the four relevant ASEs on 14 August 2008, on instruction from Mr Kilonzo, although he could not find the four original ones in the file. He says that “according to information received from my bosses the said ASEs were cancelled on 23 September 2008”.

Mr Jones’ principal argument is that KCB was prepared to discount the four invoices without the endorsement of them by Total and without having the ASEs to confirm the transfer of the oil to Total. He submits that there could have been no fraud on KCB because it was apparently prepared to credit Triton’s account without the endorsements and without waiting for the ASEs to confirm a transfer of the AGO to Total, so that KCB acted without there being any fraudulent representation by Triton or Mr Devani upon which to found the charge. Moreover, there was no evidence that Mr Devani himself was implicated if there was a fraud by Triton.

We cannot accept these arguments. The notional English charges include conspiracy to defraud. In English law terms, the question is whether there was an agreement to pursue an illegal enterprise with the intent to carry it out. We are concerned with the conduct alleged. In our view, the essential question is whether the evidence in relation to the presentation of the four invoices without endorsement by Total, the demand for them to be discounted, the late presentation of the false ASEs in September 2008 and the cancellation of the Total contract by Mr Devani himself, without informing KCB or taking any steps to reverse the payment made to Triton’s account by the bank, are evidence of a conspiracy to defraud and an intent to carry it out to which Mr Devani was a party. In our view the DJ was entitled to conclude that there was enough evidence. The fact that Triton presented invoices without Total’s endorsement, waited six weeks and then presented false ASEs and the fact that Mr Devani personally cancelled the contract without informing KCB are all powerful elements. The fact that Mr Devani himself “cancelled” the contract with Total in the letter of 23 September 2008 and did not tell KCB, in circumstances where he must have known that Triton’s account had been credited by KCB under the false assumption that the oil had been delivered to Total, is strong evidence that Mr Devani was a party to the conspiracy and had the intention to carry it through. The DJ rejected Mr Devani’s evidence that he had told KCB that the Total contract was cancelled before the invoices were discounted and that finding was not challenged before us. Whether there was sufficient AGO held to Triton’s account in the KOSF is irrelevant. The question is whether there was conduct which indicates a plan to extract money dishonestly from KCB. In our view the evidence plainly supports that possible view of the facts. The DJ was entitled to reach the conclusion that he did.

Case 1151

This case concerns four consignments of petroleum product to be imported by Triton into Kenya via the KPC installation at KOSF and in respect of which Triton requested KCB to provide financing using the CFA mechanism described above.

The first consignment was one of 666.94MT of Jet A-1 aviation fuel purchased by Triton from Gulf Energy and shipped on board “Hellas Symphony”. The evidence in a statement of Mr Julius Kilonzo, who was the supply and planning manager at Triton in 2008, is that Mr Devani had obtained KCB’s agreement to provide finance for the purchase of this consignment. Mr Devani instructed Mr Kilonzo on 8 May 2008 to request KPC to provide a letter undertaking to hold this consignment for the account of KCB and Triton and not to release the consignment until instructed to do so by KCB. The statement of Mr Kimelu says that such a letter of undertaking was provided by KPC on 8 May 2008 and there is a copy of the letter in the bundles. KCB then paid Gulf Energy, the seller to Triton, the purchase price of US$765,974.05. The consignment had, in fact, been received by KPC on 25 April 2008, so that upon payment by KCB to Gulf Energy, there was a transfer of ownership to Triton, as evidenced by an East African Community Customs Management document headed “Request to transfer ownership of warehoused goods” and dated 13 May 2008. On the same date Triton sent KPC an ASE in respect of the same consignment, instructing KPC to credit an increase in Triton’s stock and to decrease that of Gulf Energy.

In November 2008 KCB authorised the release of two batches of that consignment totalling 348.284MT. Therefore a balance of 318.656MT should have been left that was still held to the order of KCB. It is Kenya’s case that, as at 4 December 2008, a much smaller amount of that consignment remained and the difference had been released by KPC in breach of its undertaking letter to KCB. The evidence of Mr Kilonzo is that when Triton’s stocks (not subject to any charge by KCB) were low and they could not meet the demands of purchasers, Mr Devani would instruct KPC personnel (in particular Messrs Mutua and Okwengu) to release product for Triton’s use, upon the promise to repay KCB. The KPC personnel would then prepare documentation indicating that the release was authorised.

The second consignment was one of 2,790MT of AGO, imported into the KPC installation at KOSF in “Trust Runner”. The seller to Triton was Gapco. The arrangements were the same as for the “Hellas Symphony” consignment. The case of Kenya is that KCB duly authorised (and Triton repaid KCB) the release of only 148.193MT of this consignment, but that Triton obtained possession of the balance of 2634.687MT without KCB’s authorisation and it has not reimbursed KCB for the finance that it provided.

The third consignment was one of 728.3349MT of Premium Motor Spirit, (“PMS”), imported into the KPC installation in “High Rider”. The seller to Triton was Addax Kenya. KCB agreed to finance the purchase by Triton on CFA terms. Kenya’s case is that KCB authorised the release of only 310.201MT of this consignment, for which Triton reimbursed KCB. However, it is said that Triton obtained possession of the remaining 418.134MT without KCB’s authorisation and has not reimbursed KCB for the cost of purchase of that amount.

The fourth consignment was one of 12,782MT of AGO, imported into the KPC installation in “Overseas Primar”. This was part of a larger total of 20,962.828MT shipped on board the vessel. (Footnote: ¹¹) The seller to Triton was ENOC and the consignment had been delivered at KOSF during September 2008. Pursuant to banking facilities granted by KCB to Triton and upon Triton’s request dated 31 October 2008, KCB opened an irrevocable letter of credit in the amount of US$7,999,691.39 in favour of ENOC as beneficiary on 3 November 2008. ENOC drew down on the letter of credit in full. On 31 October 2008 KPC issued its letter of undertaking to KCB to hold the consignment of 12,782MT of AGO to the order of KCB and Triton and not to release any product until it received instructions from KCB to do so. That undertaking was countersigned by Mr Devani. However, on 1 December 2008 KPC sent KCB a letter stating that Triton had informed KPC that KCB “are no longer financing the 12,782MT gasoil import ex vessel MT “Overseas Primar””. Therefore, that letter continued, “the purpose of this letter is to communicate our cancellation of our letter [of 31 October 2008]”. This letter of KPC of 1 December 2008 is plainly wrong because KCB had indeed financed the purchase of that consignment by Triton from ENOC and so KPC was not in a position unilaterally to “cancel” the letter of 31 October 2008.

The case put forward by Kenya is that Triton released quantities of this consignment of AGO to various local oil companies within the OMC operation, but did so without the authorisation of KCB. The evidence in the statement of the investigating officer, Superintendent Kamlus, is that, between 13 September and 2 December 2008, Triton issued ASEs to KPC in favour of 15 Kenyan purchasing companies, without obtaining the authorisation of KCB to permit these releases. Mr Kamlus also states that the proceeds of these sales were not remitted to KCB but were credited to Triton’s account with another of its bankers, BNP Paris. In a letter dated 17 December 2008, Mr Mutua, the Chief Technician Operations of KPC, stated that he released petroleum products at the request of Triton (or Total or both) because he was promised that the release authorisation would be sent shortly by KCB. Mr Mutua said that he trusted Triton (and others) but it was “naivety on my part”.

In late November 2008, when Triton was heavily indebted to KCB, it failed to meet obligations to the bank under its finance agreements. KCB, together with other banks who had given credit facilities to Triton, requested a stock-take of petroleum products supposedly held to their account by KPC. It is Kenya’s case that it was then discovered that stock which should have been held for the account of KCB and others had in fact been released to Triton without their authority. The documentation produced by KPC had suggested that there had been no transfer to Triton, but in a letter dated 29 December 2008 KPC stated that the result of a preliminary audit of the Triton account was that KPC held no measurable petroleum products for Triton.

Mr Jones’ main argument in relation to Case 1151 is that there is no proper evidence to demonstrate that the petroleum product that was actually released by KPC at Triton’s request was the petroleum product that was the subject of a charge in favour of KCB. He submits that the documentation is muddled and incomplete and that there is no accurate information about what petroleum product was actually held by KPC for the account of Triton at any one time. He submits that Kenya cannot prove that Triton took petroleum product that was the subject of a charge in favour of KCB. He reiterates the argument that there is insufficient evidence to implicate Mr Devani in any conspiracy.

The crux of the notional English charges under Case 1151 is that Mr Devani and others conspired to steal and/or to defraud KCB for the benefit of the conspirators. The evidence which we have summarised above is, in our view, amply sufficient to conclude that there is a case to answer in respect of the conduct that would have to be established to make good such charges in English law. Mr Devani was at the centre of operations for Triton. The circumstantial evidence is sufficient to demonstrate that he has a case to answer on the conduct alleged.

Case 18

Case 18 contains 11 charges involving Mr Devani and there are different types of allegation made against him. The first group (counts 1 and 2) consists of allegations that petroleum products, whose purchase by Triton had been financed by ENOC, were released by KPC without the consent of ENOC, who had a security interest in the products that were being stored at the KPC installation at KOSF. Triton requested ENOC to finance the purchase of four consignments of petroleum product, all of which were to be purchased from ENOC itself: (i) 16,000MT of gas oil shipped in “Europe Summit”; (ii) 3,371.33MT of Jet A-1 shipped in “Chang Jiang; (iii) 9,384.387MT of gasoil shipped in “Oveseas Primar”; and (iv) 17,111.208MT of gasoil shipped in “Overseas Primar”, which was the major part of a consignment of 20,962.828MT. (The two consignments were shipped under separate bills of lading). Letters of undertaking in respect of these four consignments were issued by KPC on 18 September (two, both countersigned by Mr Devani), 29 October (countersigned by Mr Devani) and 10 November 2008 (countersigned by Mr Kilonzo). By each undertaking KPC undertook to hold stock “until we receive instructions from ENOC to release the said products”. There can be no doubt that that there must be a prima facie case that Mr Devani was aware of the undertaking in the last case, given his position in Triton.

In respect of the 16,000MT of gasoil shipped in “Europe Summit” the evidence of Mr Anar Habib, a trading manager with ENOC, is that under the contract of sale Triton was obliged to pay the contract price within 30 days of the bill of lading date but the price was never paid. ENOC did not issue any release letter in respect of this consignment, yet (it is implied) Triton obtained possession of the consignment without ENOC’s consent.

In the case of the consignment of 3,371.33MT of Jet A-1, shipped in “Chang Jiang”, ENOC was both financier and seller to Triton. The allegation is that Triton paid for and received about half the consignment on 3 November, (Footnote: ¹²) but that it obtained possession of some of the remainder (about 672.592MT) without authorisation from ENOC. (Footnote: ¹³) ENOC says that it was entitled to retain a charge over this balance as security for other consignments which had not been paid for by ENOC. There is no “fraudulent disposal” charge in relation to the balance because Triton paid for it and there is no evidence that it left the KPC storage.

With regard to the consignment of 9,384.378MT shipped in “Overseas Primar”, the evidence of Mr Habib, ENOC trading manager, is that no payment arrangements were in place when the vessel arrived to discharge her cargo at Mombasa. Property would normally have passed to Triton upon discharge and that is when payment for the consignment should have been made by Triton. Under pressure from Triton, ENOC agreed to permit the discharge, on Triton’s undertaking to set up a letter of credit in favour of ENOC immediately. That was not done as agreed, because the letter of credit only covered a part of the cargo and, in particular, not the consignment of 9,384.378MT of AGO. KPC issued a letter of undertaking dated 1 December 2008, in which it agreed to hold this consignment to ENOC’s order. This letter was countersigned by Mr Devani. The evidence of Mr Kimelu is that all of the cargo ex “Overseas Primar” was transferred to Triton by Triton issuing ASE’s to KPC requesting a transfer of stock to Triton. That was done without any letters of release from ENOC.

In respect of the consignment of 17,112.08MT shipped in “Overseas Primar”, it was originally to have been paid for by cash, but Mr Devani renegotiated the contract with ENOC so that it would be the subject of a finance agreement and the consignment was to be held by KPC on the usual undertaking terms. The allegation is that despite this quantity of AGO being held by KPC on the usual terms of an undertaking, ENOC never gave its consent to that AGO being released from the security interest upon it. In fact, it is alleged that Triton never paid (at least not fully) for this quantity but it was all released to Triton for it to use to supply others. It is said that, on the evidence of the stock taking at the KOSF, there was no AGO left for Triton’s account as at mid December 2008.

The next group of charges in Case 18 (counts 8 to 10) concern alleged false statements of account of stock apparently held in the name of Triton by KPC. The allegation is that there was a conspiracy to defraud by a group including Mr Devani so that inflated figures were given by KPC in order to represent to ENOC that all stocks that were subject to the undertakings given by KPC were still held at the KOSF installation and would not be released accept upon instructions of ENOC, whereas those stocks had, in fact been released. The figures relate to consignments received from “Chiang Jiang”, “Summit Europe” and “Overseas Primer”. In each case the figures were given by Mr Mutua of KPC. It is said that the true position was that no stocks remained at KOSF for Triton’s account by the end of December 2008.

The third group of charges in Case 18 (counts 3 to 7) consists of allegations concerning the two consignments shipped in “Overseas Primar”. It is alleged that Mr Devani was part of a conspiracy to defraud five members of the “OMC group” of oil marketing companies, who had contracted to buy and had paid for parcels of AGO from those two consignments. The five purchasing companies were: Kenya Shell Ltd, Engen (K) Ltd, Gapco (K) Ltd, Hashi Empex Ltd and Muloil Kenya Ltd. There are statements from Mr Edward Kitavi of Shell Kenya, Ms Faith Kamau of Engen, Mr Mohammed Baraka of Gapco, Mr Morris Mutiso of Hashi and Mr David Kalute of Muloil which all say that their companies contracted with Triton, received ASEs in their favour but never physically received the AGO.

The final charge (count 11) alleges that Mr Devani was part of a conspiracy to defraud Petro Kenya Ltd, who had contracted with Triton to buy 2000MT of AGO to be delivered by a transfer from stock at the KOSF installation. Petro paid for the product and was given an ASE by Triton, but they never received the AGO. The allegation is that there was never any product that could have been used to supply to Petro and the transaction was a fraud from the start.

Three affidavits in support of the extradition request and dealing with the subject matter of Case 18 were sworn by Mr Julius Muraya, an investigator with the Kenya Anti-Corruption Commission. He summarises the evidence given in the witness statements of others and the documents.

Mr Jones’ principal argument in relation to Case 18 is that there is no or no sufficient evidence that Mr Devani was party to any conspiracy to defraud by making false representations or withholding information. He submits that there was no mortgage or charge or lien over the petroleum product that was the subject of the undertakings and that there was no positive duty on the part of Triton under either the sale contracts or the CFA to make disclosure of facts. He further submits that in a case where there is evidence that Triton repaid a financier (eg ENOC) for product then that financier was under a duty itself to ensure that the undertaking of KPC to hold the product for the account of that financier was discharged.

The notional English charges in Case 18 include conspiracy to defraud in respect of particular consignments and contracts for sale and fraudulent representations as to what stock was being held by KPC that was the subject of a charge in favour of ENOC. The underlying documents about the course of events speak for themselves. The argument that there is no certainty about what petroleum product was retained by KPC at a particular time is not to the point. The key question, on each charge, is whether the DJ was correct to conclude that there was sufficient evidence to amount to a case to answer that Mr Devani was party to an agreement to act fraudulently and that he intended to carry that out. We have no doubt that he was correct to conclude that there was sufficient evidence. As in virtually all cases of conspiracy, the issue of whether there was an agreement to act in an illegal manner and the issue of intent can only be determined, ultimately, from inferences to be drawn from the overt acts of the alleged participants. The DJ concluded that there was “a considerable body of evidence” of Mr Devani’s part in the conspiracy. He referred in particular to the fact that Mr Devani was the leading person in Triton, the person who negotiated the contracts for the purchase and sale of petroleum product (in particular with ENOC), who countersigned the undertakings (in all save one case) and who directed where monies realised by the sale of oil should go – not to ENOC but to PNB. Those facts cannot be challenged. There is also the evidence that the petroleum product did not remain in KPC subject to the charges in favour of financiers, but was transferred for Triton’s use.

In our view the DJ was entitled to reach the view on the evidence that there was a case for Mr Devani to answer in respect of all the relevant charges in Case 18 for the reasons that he gave, given the underlying facts as set out in the documents.

It is not in doubt that both the Magistrates' Court and the High Court on appeal retain an implied jurisdiction to refuse to extradite a requested person under Part 1 or Part 2 of the EA on the basis that there has been an abuse of the process of requesting extradition by the prosecuting authority (or other emanation of the judicial authority seeking extradition). Two conditions must be satisfied before this jurisdiction will be exercised. (Footnote: ¹⁴) They are, first, that the authority has conducted itself in a way that has “usurped” the statutory regime in the EA and, second, that this usurpation of the statutory extradition regime has resulted in the extradition being unfair and unjust to the requested person either because he has been unfairly prejudiced in his challenge to extradition in this country or because he will be unfairly prejudiced in the proceedings in the requesting country if surrendered there.

Before the DJ, the conduct of the Kenyan authority in seeking Mr Devani’s extradition was said to be an abuse of process on the grounds that: (1) the request for his extradition was politically motivated, and (2) the proceedings had been brought and continued despite undertakings allegedly given to Mr Devani by Kenyan officials on various occasions that the case against him was a civil matter which was not really thought to involve criminal conduct.

The DJ rejected those arguments and at the hearing of this appeal they were not pursued. Instead, Mr Jones for Mr Devani argued that the proceedings are an abuse of process on the different ground that Mr Okello, the lawyer at the Office of the Kenyan Director of Public Prosecutions who is handling the prosecution of Mr Devani, allegedly misled the court at the extradition hearing. This allegation was based on fresh evidence which Mr Devani’s representatives sought permission to introduce on this appeal. The appellant relied on this evidence to show that Mr Devani is already being tried in Kenya in his absence in four separate trials which are proceeding in parallel, three of which were begun in June 2009 and the fourth in January 2011. This is said to be relevant for two purposes. One is to support an argument, which we consider later, that to extradite Mr Devani to Kenya would infringe his right to a fair trial under Article 6 of the ECHR. The other is to support the abuse of process argument which, because it is closely linked to the application to introduce fresh evidence, we will consider first.

As already noted, the “fresh evidence” consists of: (1) a witness statement dated 9 July 2015 from Mr James Nyiha, a Kenyan lawyer, exhibiting documents relating to the Kenyan proceedings; (2) a witness statement from Mr Devani dated 8 September 2015; and (3) an expert report dated 11 September 2015 from another Kenyan lawyer, Mr Wilfred Nderitu, on matters of Kenyan criminal law and procedure.

Mr Nyiha says in his statement that on 26 May 2015 he was asked to ascertain the current state of all outstanding litigation against Mr Devani or Triton in Kenya. In so doing, he obtained copies of the minutes of the hearings in the criminal proceedings at the Magistrates’ Court in Nairobi. Mr Nyiha explains that such minutes represent a longhand note made by the magistrate which is then transcribed and becomes the official record of the court.

The minutes of the hearings exhibited by Mr Nyiha show that the four cases in which charges have been brought against Mr Devani in Kenya are being tried separately by different magistrates and that in at least three of the four cases some witnesses have been called to give evidence. More particularly:

Mr Devani in his witness statement says that, until Mr Nyiha was instructed to research the position, it never occurred to him that he might be undergoing four separate trials in his absence.

Mr Nyiha has also exhibited a judgment of the Kenya High Court given on 28 May 2014 on an application by the prosecution to review a decision made by the magistrate in Case 1150. The magistrate had ruled on 15 May 2012 that, in view of Mr Devani’s absence, the case could not proceed unless the other defendants were charged and tried separately from him. The High Court reversed that decision, holding that the trial should be allowed to proceed without amending the charges or removing Mr Devani from the proceedings. The judgment of the High Court does not address what the position will be if and when Mr Devani is extradited to Kenya, although it expressly recognises that he has a right to challenge the validity of any proceedings which take place against him in his absence.

The basis on which such a challenge could be made is explained in the expert report of Mr Nderitu. Mr Nderitu points out that under Article 50(2)(f) of the Kenya Constitution the right to a fair trial includes the right “to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed”. In the opinion of Mr Nderitu, in order for a trial of Mr Devani in his absence to be compatible with this constitutional right, there would first have to be a judicial determination that Mr Devani’s conduct had made it impossible for the trial to proceed with him present. It does not appear that there has been any such judicial determination. It is also Mr Nderitu’s opinion that proceeding against Mr Devani in his absence could not be justified under Article 50(2)(f) of the Constitution in circumstances where the reason for his absence is that he is exercising his legal right to contest his extradition to Kenya. In any event, insofar as the offences with which Mr Devani is charged constitute felonies, section 206(1) of the Kenya Criminal Procedure Code contains an absolute prohibition against proceeding against him in his absence. Any finding of guilt made in such a proceeding would accordingly be ultra vires.

In two witness statements made in answer to this evidence, Mr Okello does not take issue with any of the evidence showing what has so far happened in the Kenyan proceedings but maintains that Mr Devani is not currently standing trial in Kenya. He also agrees that he has a right not to be tried in his absence. Mr Okello says that, if Mr Devani is returned to Kenya, he can apply after entering pleas in the existing trials to have any witness who has already given evidence recalled and the prosecution will not oppose such a request; alternatively, Mr Devani could apply to have a separate trial from the other defendants, which could be a consolidated trial of all the charges against him.

Where on an appeal in a case under Part 2 of the EA the appellant seeks to rely on fresh evidence, section 104(4) specifies conditions which must be satisfied for the appeal to succeed. The conditions are that:

“(a)

… evidence is available that was not available at the extradition hearing;

(b)

… the evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; [and]

(c)

if he had decided the question in that way, he would have been required to order the person’s discharge.”

The leading case on the meaning and effect of these conditions is Hungary v Fenyvesi, (Footnote: ¹⁵) in which the Divisional Court considered the identically worded provisions of section 29(4) of the EA. The court held (at [32]) that evidence “not available at the extradition hearing” means evidence which either (1) did not exist at the time of the extradition hearing or (2) was not at the disposal of the party wishing to adduce it and could not with reasonable diligence have been obtained. The court noted that it is possible to admit fresh material in evidence but subsequently decide that it was available at the extradition hearing, since the conditions specified in the EA are not conditions for admitting evidence but for allowing the appeal. However, the court will not generally admit new material in evidence and spend time and expense considering it, if it is plain that it was available at the extradition hearing.

On behalf of Kenya, Miss Malcolm QC argued that the evidence which Mr Devani wished to introduce about the Kenyan proceedings was available at the extradition hearing, as the records of the proceedings are public records and Mr Devani has throughout instructed lawyers in Kenya and could with reasonable diligence have obtained the material on which he now seeks to rely. In response, Mr Jones QC argued that there was no reason for Mr Devani and his advisors to investigate what was happening in the Kenyan proceedings because at the extradition hearing Kenya gave the impression that Mr Devani’s trial would begin only if and when he is extradited and that it would be a single trial. He submitted that a defendant to extradition proceedings cannot be expected to probe matters in the requesting country about which he has no reason to believe that the court is being misled.

As already noted, at the hearing of this appeal we decided that, rather than rule at that stage on whether the new evidence was available at the extradition hearing, the most convenient course in this case was to receive the evidence without prejudice to the question whether the conditions specified in section 104(4) are satisfied.

There was no dispute about the accuracy of the new evidence. In particular, the documents exhibited by Mr Nyiha are a matter of public record and Kenya did not take issue with the expert opinion of Mr Nderitu on the effect of the applicable Kenyan law. In these circumstances we saw no need for any oral evidence from either witness so we refused an application made on behalf of Mr Devani for the witnesses to be called.

As mentioned, the conduct said to constitute an abuse of the extradition process and to justify the introduction of the fresh evidence is that the court (and Mr Devani) was allegedly misled at the extradition hearing about the proceedings in Kenya. In particular, the complaint is made that Mr Okello, who was responsible for gathering much of the evidence adduced in support of the extradition requests, did not inform the English court at any point that there were four separate criminal trials already taking place in Kenya in Mr Devani’s absence, in each of which Mr Devani is a defendant and in one of which (Case 18) some prosecution witnesses had already been called. Mr Jones also submitted that at the extradition hearing statements were made to the court which were positively misleading. In particular:

As well as gathering evidence to support the extradition requests, Mr Okello was also himself a witness and gave live evidence at the hearing before the DJ. Mr Devani had testified that he had two meetings with Mr Okello and Mr Kamlus, the Kenyan Chief of Police in charge of the case, in London in late May 2010. Mr Devani said that at these meetings Mr Okello and Mr Kamlus assured him that, so far as they were concerned, the dispute was merely a civil matter and there was no evidence of any criminal conduct by Mr Devani. According to Mr Devani, Mr Okello and Mr Kamlus also told him that they would report their view back to their colleagues and superiors upon their return to Kenya. In their evidence responding to this allegation, Mr Okello and Mr Kamlus agreed that they had visited London in late May 2010 to work on the preparation of the extradition request. They denied, however, that they had met Mr Devani during that visit. Indeed, each of them denied having ever met or spoken to Mr Devani.

In his main ruling the DJ discussed the conflicting evidence on this point and found as a fact that the meetings alleged by Mr Devani did not take place and that neither Mr Okello nor Mr Kamlus had ever spoken to him.

For Mr Devani, Mr Jones accepted that an appeal court will normally be slow to reject factual findings of a judge who has heard live evidence. However, he submitted that the new material showing what has happened in the Kenyan proceedings casts grave doubt on Mr Okello’s credibility and that, if the DJ had known that Mr Okello had misled the court about the Kenyan proceedings, the DJ would not have believed his evidence and that of Mr Kamlus denying that they had met Mr Devani. Mr Jones did not seek to maintain the argument made at the extradition hearing that what was allegedly said by Mr Okello and Mr Kamlus to Mr Devani rendered the subsequent request for extradition an abuse of process. But he submitted that there is reason to believe that Mr Okello lied on oath at the extradition hearing and this constituted an abuse of process.

We consider that there is no reasonable basis for the suggestion that Mr Okello or anyone else involved in preparing Kenya’s case or presenting it at the extradition hearing misled the court about the criminal proceedings in Kenya.

First of all, the Kenyan prosecuting authority could have had no expectation of being able to conceal from Mr Devani and the court what was happening in the Kenyan proceedings. The hearings in those proceedings were and are taking place in public. Mr Devani was known to have instructed Kenyan lawyers, and had indeed at an early stage made a successful application for judicial review to challenge some of the charges against him. Mr Okello and his colleagues must have been aware that if anything inaccurate or incomplete was said about the Kenyan proceedings, the error or omission was likely to be exposed by Mr Devani’s lawyers.

It was in any case made clear in the extradition requests that there are four separate cases in which charges against Mr Devani have been laid before the Magistrates’ Court in Nairobi, and it has never been suggested by Kenya that the cases were going to be tried together. The four “Cases” and all the charges were before the DJ. We regard as fanciful the attempt made to spell such an implication out of the statement in Mr Okello’s affidavit that Kenya was seeking an order for Mr Devani’s extradition “to stand trial”. That statement was plainly not addressing, and said nothing about, the number of trials there would be. The same applies to the statement in Kenya’s written submissions that Mr Devani “would be tried before a judge or Chief Magistrate who had all gone through the vetting process”.

In his same affidavit dated 21 August 2012 Mr Okello went on to refer to the Kenya magistrate’s ruling in Case 1150 delivered on 15 May 2012. He exhibited to his affidavit a copy of that ruling along with the application which he as the prosecutor had made to the High Court to challenge the magistrate’s decision. Mr Okello said that the application was due to be heard on 31 October 2013. (As mentioned earlier, the High Court ultimately delivered judgment on 28 May 2014.)

It is clear from the magistrate’s ruling exhibited by Mr Okello that Case 1150 was going to be tried separately from the other cases and it was therefore not intended that all four cases should be heard together in a single trial. It would have been reasonable to infer that each of the other cases was also being heard separately. Certainly, Mr Okello said nothing to suggest otherwise. Indeed, he said in his affidavit that in Case 18 the prosecution had already proceeded with the trial of the other defendants, while awaiting the finalisation of the extradition proceedings in the UK. Although Mr Okello did not state in terms that the prosecution had already called a number of witnesses in Case 18, it was apparent from the fact that the trial was underway that this was likely to have occurred, and if Mr Devani and his advisers had wanted to check the position, they could readily have done so.

Mr Jones criticised Mr Okello for suggesting in his evidence that the prosecution of Mr Devani in Case 18 was being “held in abeyance” while the case proceeded against the other defendants. He pointed out that no such description appears in the record of the proceedings and submitted that the true position was that Mr Devani was being tried in his absence. As we understand it, however, the description “held in abeyance” is not a term of art in Kenyan law and it is Mr Okello’s position as the prosecutor that Mr Devani cannot be tried in his absence and that the proceedings which have taken place while his extradition is still pending cannot result in his conviction. We consider in these circumstances that his characterisation of the matter was not misleading.

As Mr Okello also made clear, in Case 1150 the magistrate expressly rejected his argument that the trial of Mr Devani could be “held in abeyance” while the case proceeded against the other defendants. The magistrate ruled that the court had no power to proceed with the trial in the absence of Mr Devani (and Triton) when one of the three offences charged was a felony. Therefore, either Mr Devani would have to be tried separately in relation to all three counts or the felony offence would have to be tried separately from the other two charges. If that decision had stood and been followed in the other three cases, it would have required Mr Devani to be tried separately from the other defendants on all the charges (as indeed may still occur).

It appears from the court records exhibited by Mr Nyiha that the High Court made an order staying the proceedings in all four cases until the application by the prosecution for a review of the magistrate’s ruling in Case 1150 was decided. Consequently no further steps were taken in any of the cases until the High Court delivered judgment on 25 May 2014. By that time final submissions in the extradition hearing had been completed, save on the question of prison conditions in Kenya which were the subject of some additional submissions made on 23 July 2014. The hearing was then adjourned until the DJ handed down his rulings on 3 September 2014.

In our view those representing Kenya are not to be criticised for not bringing to the court’s attention the judgment of the Kenya High Court in circumstances where the evidence at the extradition hearing was by then closed and no argument had been raised in Mr Devani’s defence to extradition which was directly affected by the judgment.

At the same time we accept that Mr Devani could not have been expected to have found out about the High Court judgment and raised any issue arising from it before the DJ gave his rulings on 3 September 2014. The same is plainly true of events which have occurred in the Kenyan proceedings since the High Court judgment.

We conclude that:

Since we have rejected the allegation that Mr Okello misled the court about the state of the proceedings in Kenya, there is nothing which can cast doubt on his evidence given at the extradition hearing that he had never met or spoken to Mr Devani. There is therefore no basis on which to question or reconsider the finding of the DJ that the meetings alleged by Mr Devani to have taken place in London in late May 2010 did not in fact take place.

The DJ’s finding was not in any case critically dependent on his view of Mr Okello’s credibility. Amongst the further matters supporting his finding were the following:

In any event it is inherently unlikely that Kenyan officials would have told Mr Devani that there was no evidence of any criminal conduct by him, when they were at the time preparing evidence in support of the request for his extradition which we have found establishes a clear prima facie case of such conduct, and no motive for their doing so was suggested.

As we have rejected the allegations that the court was misled and that Mr Okello gave false evidence at the extradition hearing, the foundation for the argument that there has been an abuse of the extradition process falls away. We would add, however, that, even if the allegations had been well founded, the conditions for the exercise of the court’s residual jurisdiction to refuse extradition on this ground would not in our opinion have been satisfied. In particular:

In circumstances where the matters about which the prosecuting authority is alleged to have dissembled would not have afforded a defence to his extradition, in our view it cannot be said that the misconduct alleged, even if proved, would have amounted to a usurpation of the statutory extradition regime, nor that it resulted in unfair prejudice to Mr Devani.

There is no dispute about the legal test to be applied. The question is whether there are substantial grounds for believing that, if extradited, Mr Devani will be exposed to a real risk of a breach of the right to a fair trial guaranteed by Article 6 which is so fundamental as to amount to a “flagrant denial of justice”: see Othman v United Kingdom (Footnote: ¹⁶); Kapri v Lord Advocate (Footnote: ¹⁷). Those authorities make it clear that the test is a stringent one which requires a breach of Article 6 so fundamental as to amount to a nullification, or destruction of the very essence, of the right to a fair trial.

Before the DJ, Mr Devani contended that he would not receive a fair trial in Kenya because he is a victim of political prejudice and the judicial system in Kenya is corrupt. The DJ found the evidence relied on in support of that case entirely unpersuasive, and those arguments were not pursued on appeal.

Instead, Mr Jones sought to rely on the new evidence about the nature of the proceedings in Kenya to argue that Mr Devani would not receive a fair trial. This was said to be for a combination of three reasons. First, Mr Devani faces the prospect of being tried in four separate trials which are all proceeding concurrently. Secondly, the fact that prosecution witnesses have already given evidence in Mr Devani’s absence which he has had no opportunity to challenge. Thirdly, Mr Jones argued that the extremely slow progress of the criminal proceedings to date indicates that there is no realistic prospect of the trials being concluded within anything approaching a reasonable time. Consequently, if returned to Kenya, Mr Devani is likely to be remanded in custody for years, even if he is ultimately acquitted of all charges.

Considering first the number of trials, we have already noted that the prospect that Mr Devani could face four separate trials in Kenya was already apparent at the extradition hearing and was not then the subject of any complaint. In any event we think it impossible to say that the fact that the four cases are being tried separately violates Article 6, let alone that it amounts to a “flagrant breach”.

It is apparent from the evidence of Mr Nderitu that similar principles govern the joinder or severance of charges and defendants under the Kenyan Criminal Procedure Code as in English criminal procedure. Furthermore, as in English procedure, in Kenya the trial judge has a discretion which may be exercised before the start or indeed at any stage of the trial to order one or more charges or defendants to be severed and tried separately. There is a corresponding power to order consolidation of proceedings.

A decision about whether charges and defendants should be joined in a single trial or tried separately does not readily lend itself to an argument that it is incompatible with Article 6, as it a discretionary procedural decision which involves an evaluation of a range of factors. These include the extent to which different charges arise out of the same or similar or related facts, whether or to what extent evidence admissible in relation to some charges and defendants is also admissible in relation to others, whether trying particular charges and defendants together (or separately) would be prejudicial to any defendant and how undue length and complexity of proceedings can best be avoided. There is often more than one view that can reasonably be taken of the answers to these questions and about where the balance between competing factors should be struck. It seems to us that the question of how the Kenyan proceedings should be tried falls firmly into this category.

It is in any case open to Mr Devani to apply for all the charges against him to be determined in a single trial. There is no evidence to suggest that any such application, if made, will be decided in a manner which is unjust to Mr Devani and violates his right to a fair trial.

The same applies to any application which Mr Devani may make to have the trials which have started in his absence declared void as against him. It is common ground that Mr Devani is entitled to challenge the continuation of the current trials against him in circumstances where he did not participate in the trials from the beginning. On the basis of Mr Devani’s fair trial rights under Kenyan law and the expert opinion of Mr Nderitu, it is reasonable to conclude that the Kenyan High Court could order a fresh trial against him and also find that evidence adduced in the current trials would not be admissible in the fresh trials. Again, there is no reason to suppose that the outcome of any application made will be unjust or deny Mr Devani a fair trial.

Mr Jones submitted that a challenge of this kind, whatever its outcome, would be likely to take a very long time to resolve and increase the overall delay. He pointed out in that regard that it took almost two years for the High Court to hear and decide the application challenging the magistrate’s ruling in Case 1150 requiring the charges in that case to be split. Mr Jones also referred to evidence in the record of the Kenyan proceedings showing that there have been frequent adjournments, sometimes for reasons which are not apparent or appear of questionable merit, and that in Case 18 a new magistrate has taken over the case since the trial began upon the original magistrate being elevated to a higher court. Mr Nderitu has explained that in such an eventuality the trial either continues with the new magistrate relying on the notes of evidence made by their predecessor (as has happened in Case 18) or, if objection is taken to this course, the trial could have to start afresh. Mr Jones submitted that, particularly when account is taken of the problems and potential for further delay caused by the multiplicity of proceedings, there is likely to be such inordinate delay if Mr Devani is returned to Kenya before the proceedings against him are concluded as to create a real risk of a flagrant denial of justice.

In our view, the evidence falls far short of justifying such a conclusion. Under Article 50(2)(e) of the Kenya Constitution the right to a fair trial includes the right “to have the trial begin and conclude without unreasonable delay”. No evidence has been put forward to suggest that the Kenyan legal system does not honour that constitutional guarantee. As mentioned, a case was advanced at the extradition hearing – which is no longer pursued – that Mr Devani will not receive a fair trial in Kenya because of political prejudice against him and lack of judicial independence. But it was not alleged at the extradition hearing, and no evidence was put forward to suggest, that Mr Devani will not receive a fair trial on account of the likelihood of delay. Nor has any attempt been made to introduce fresh evidence to that effect on this appeal. We note that no such opinion is expressed in the expert report of Mr Nderitu which Mr Jones sought to introduce on this appeal. The only basis for the allegation that, if returned to Kenya, Mr Devani will not tried within a reasonable time is the evidence of the slow progress of the Kenyan proceedings in his absence.

It seems clear, however, that the main reason for that lack of progress has been the very fact of Mr Devani’s absence. That has given rise to difficult questions in Kenya about whether to commence trials before these proceedings for his extradition have been concluded and, if so, how the absence of Mr Devani should be dealt with. The court records show that the prosecution requested and was granted adjournments on a number of occasions on the basis that the extradition proceedings in the UK were still continuing and they did not wish to proceed without Mr Devani present. Eventually the court in Case 18 ran out of patience with that approach. However, after the magistrate’s ruling on 15 May 2012 in Case 1150, there was (as we have mentioned) a stay of all the proceedings until the High Court gave judgment – since when evidence has begun to be called in all four cases.

In our judgment it is not justifiable to infer from the fact that comparatively little progress has been made in trying the cases in Kenya in Mr Devani’s absence that the proceedings will not move forward at a reasonable speed if Mr Devani is returned to Kenya and enters pleas to the charges. Nor is it any fault of the Kenyan courts or prosecuting authority that the extradition proceedings in this country have taken so long. We find that it has not been shown that, if Mr Devani is returned to Kenya, there is a real risk that he will not receive a fair trial because of the likelihood of delay. Still less has it been demonstrated that there is a real risk of such excessive delay as would amount to a “flagrant denial of justice” and destroy the very essence of the right to a fair trial guaranteed by Article 6.

The law concerning Article 3 rights and its application to prison conditions in the requesting state in the context of a person facing extradition is now well settled. The principles set out in case law of the European Court of Human Rights (“ECtHR”), which have been accepted by the courts of England and Wales were recently summarised in the judgment of this court in Elashmawy and another v Italy (Footnote: ¹⁸) at [49] and do not need to be repeated here in full. Three points should be emphasised. First, the overall test is whether the evidence shows that there is a real risk of the requested person being subjected to inhuman or degrading treatment or punishment. Secondly, in order for any ill-treatment, including that occurring in prisons, to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity and in general a very strong case is required to make good a violation of Article 3. Thirdly, factors other than prison overcrowding can be taken into account to see if there has been a breach. Such factors may include the availability for use of private lavatories, available ventilation, natural light and air, heating, and other basic health requirements.

Before the DJ a general attack on prison conditions in Kenya was made on behalf of Mr Devani. He relied on a large number of reports and on the expert evidence of Professor Kithure Kindiki in support of his case on this issue. Kenya relied on letters of assurance dated 5 and 9 August 2011 by the Kenya Commissioner of Prisons and the Kenya Director of Prosecutions to the Home Office, Extradition Section, which stated that Mr Devani would be detained in a particular prison, Kamiti prison, which is in the Nairobi district. The letters stated that this is a modern facility with individual cells or rooms, adequate lighting, enough space and ventilation, proper sanitation and an adequate supply of water. It was also stated that there are, in that prison, adequate services and that there were facilities for regular visits by the family and legal representatives. Kenya also relied on evidence of Mr James Mue, a Kenyan human rights lawyer, and on the expert evidence of Lord Ramsbotham, former UK Chief Inspector of Prisons, who had visited Kamiti prison and two other prisons in Kenya in November 2013 on behalf of the British government in the context of another extradition case.

The DJ noted that Lord Rambsbotham found the conditions in Kamiti prison to be Article 3 compliant for the purposes of the other extradition case. The DJ concluded, at paragraph 376 of his main ruling:

“I am satisfied that the conditions in Kamiti are Article 3 compliant: I am further satisfied that Mr Devani will be afforded the same attention as other high-profile inmates and be housed in the special unit (with facilities such as a single cell) and that the incident [of inter-prisoner or prisoner on warder violence] in 2008 was an isolated incident which may well have acted as a catalyst so as to focus the attention of the Kenyan authorities on improving conditions not only within the general prison estate but within Kamiti prison itself.”

The DJ therefore dismissed the Article 3 challenge.

Before us, Mr Jones on behalf of Mr Devani attempted to introduce some new material which is critical of prison conditions in Kenya in general. (Footnote: ¹⁹) Mr Jones did not dispute that Mr Devani would be detained in Kamiti prison if extradited. Even assuming that we should receive the new material, we are satisfied that it is wholly insufficient to upset the findings of fact and conclusions of the DJ on prison conditions at Kamiti, which is where Mr Devani would be imprisoned if extradited.

Mr Jones also made a more specific challenge based on a Kenya Ministry of Health report of May 2015 that there had been widespread outbreaks of cholera in Kenya since December 2014 and that, in Nairobi, 145 cases of cholera had been reported.

In response, Miss Malcolm pointed out that there is nothing in the May 2015 report to indicate that there had been any outbreak of cholera in Kamiti prison and that there is no other evidence to suggest that such an outbreak has occurred. Moreover, Miss Malcolm pointed out that it is unfortunately the case that cholera is endemic in a number of countries to which requested persons may be extradited and that fact alone could not, she submitted, mean that the Article 3 threshold was reached, let alone breached.

We agree with Miss Malcolm’s submissions. There is no evidence that cholera is a problem in Kamiti prison or that the prison authorities are either unwilling or incapable of dealing with any potential threat of it there. The general danger of cholera outbreaks in Kenya is not sufficient to reach the Article 3 threshold. This ground of challenge must be rejected.

We reject the challenges made by Mr Devani: (1) that there is no prima facie case in respect of the charges for which his extradition is sought; (2) that the extradition proceedings are an abuse of the process of the English court; and (3) that his extradition would be contrary to his Convention rights, in particular his Article 3 and 6 rights. We also find that the fresh evidence on which Mr Devani has sought to rely on this appeal would not, if it had been adduced at the extradition hearing, have led to a different result.

Accordingly, the appeal must be dismissed.