Peter Omari and Francis Osanyo, who are the subject of an indictment issued by the U.S. District Court for the Eastern District of Virginia, are accused of conspiracy to commit computer intrusions, conspiracy to commit wire fraud, and aggravated identity theft and aiding and abetting under various provisions of Title 18 of the United States Code.
The indictment was reportedly returned by a Federal Grand Jury sitting in Richmond, Virginia, in November 2023, and a warrant of arrest was subsequently issued in Case No. 3:23-cr-153.
According to an application filed before the Court in Nairobi, the Directorate of Criminal Investigations (DCI) is seeking custodial orders to detain the two at Central Police Station for 14 days to allow completion of investigations and to enable U.S. authorities to transmit a formal extradition request through diplomatic channels.
The prosecution also informed the court that an INTERPOL Red Notice had been issued and that the offences alleged in the U.S. indictment correspond to offences under Sections 28, 29 and 30 of Kenya’s Computer Misuse and Cybercrimes Act.
However, the two respondents, through their lawyers Cliff Ombeta and Danstan Omari, opposed the application and urged the court to decline the request for detention and any move towards extradition.
Ombeta told the court that the matter before it was not yet an extradition proceeding but merely a request to hold the suspects in custody. He argued that the prosecution must place before the court compelling reasons to justify the denial of bond, as required under Article 49 of the Constitution.
“I have looked at the application. Currently, it is not an extradition proceeding; it is a request to hold the suspects in custody. They must place before you what we call compelling reasons,” the defence submitted.
The lawyers further argued that their clients are unwell and that their constitutional rights had been infringed. They maintained that detention for 14 days without an option of cash bail or bond would be unlawful and punitive in the absence of a formal extradition request before the court.
"We are asking the court to decline the request made by the prosecution," Omari argued.
The prosecution, on its part, insisted that the detention was necessary to facilitate receipt of the formal extradition request from the United States and to allow local investigators to conduct searches and secure electronic and financial evidence allegedly linked to the offences.
The court is expected to rule on whether to grant the 14-day custodial orders as sought by the State, a decision that could pave the way for formal extradition proceedings against the two Kenyans. By Dzuya Walter, Citizen Digital
