Yagnesh Mohanlal Devani v Republic of Kenya
| Jurisdiction | England & Wales |
| Judge | Sir Richard Aikens |
| Judgment Date | 11 December 2015 |
| Neutral Citation | [2015] EWHC 3535 (Admin) |
| Docket Number | Case No: CO/4218/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 December 2015 |
[2015] EWHC 3535 (Admin)
Mr Justice Leggatt
Sir Richard Aikens
Case No: CO/4218/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alun Jones QC and Martin Henley (instructed by Rainer Hughes) for the Applicant
Helen Malcolm QC and Mark Summers QC (instructed by CPS) for the Respondent
Hearing dates: 6, 7 & 8/10/2015
This is the judgment of the court to which we have both contributed.
The case so far
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.
The background facts
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...
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