We refer to the client interview we conducted with you on 11/02/2023 and proceed to proffer

you with our favorable legal opinion based on the facts you provided us with.
A. Brief Facts
We understood the brief facts from what you stated to be that Koikoi County (County No. 50 of
the Republic of Kenya) is embroiled in dispute with the office of the Director of Public
Prosecutions as to the exact mandate and scope of its Inspectorate Department in enforcing
inspectorate offences such as building code enforcement and general breach of County 50 by
laws. The County Governor, Mr. Kwanusu Mawia instructed us to render him a legal opinion
ahead of possible Supreme Court Advisory Opinion as to who has authority to prosecute County
by law offenders.
A. Legal Issues for determination
1. Nature of county by-laws.
2. Enforcement of county by-laws.
3. Functions of the county inspectorates.
4. Whether ODPP has the power to charge county-by-law offenders.
APPLICABLE RULES

Constitution of Kenya 2010

Article 1 of the 2010 Constitution, county governments are recognized as an exercise of the
sovereign power of the Kenyan people. Article 1(4) provides that the sovereign power of the
people is to be exercised at both the national and county levels.

Under Article 10(2)(a) of the 2010 Constitution, ‘sharing and devolution of power’ is recognized
as one of the national values and principles of governance. This value binds all State organs and
public officers. Both the national and county governments in the course of fulfilling their
constitutionally assigned functions are guided by this value.

In accordance with the spirit of cooperative government as provided in Articles 6(2) and 189 of
the 2010 Constitution, the county inspectorates offer secondary support to services that are
primarily the preserve of the national government, such as county traffic control, enforcement of
and compliance with county laws and regulations, patrol and guarding of access points,
controlling crowds, protection of county government property and providing market security.
Article 185(1) of the 2010 Constitution provides that the legislative authority of a county is
vested in, and enforced by, its respective county assembly. With regard to this Article, County
assemblies have enacted county laws that make several acts and omissions contrary to county
laws as offenses punishable under such county laws.

County Governments Act 2012

The County Government Act, No- 17 of 2012 gives effect to Chapter Eleven of the 2010
Constitution as it provides for county governments powers, functions, and responsibilities to
deliver services and for connected purposes. The Act has relevant provisions that empower
county governments with legislative and executive powers and functions.

Analysis

Introduction

Devolution is form of decentralization as it creates local governments that are elected by the
citizens and make autonomous decisions on service delivery. It solves the problems of
marginalization, inadequate service delivery, and regional disparities in development which were
associated with the highly centralized system of government. This led to the creation of the
County government and the National government. The two levels of government are distinct and
interdependent conducting their mutual relations on the basis of consultation and cooperation.

Nature of county by laws.

County legislation, require implementation and enforcement as it ensures that the objects of
devolution can be achieved. In this regard, the county governments have through legislation,
established an institutional framework with specific powers geared at enforcing the county laws
and regulations. County laws include the Acts of the County Assembly of the respective county
such as the County Inspectorate Acts or subsidiary county laws.

Enforcement of count by-laws.

Enforcement of county by-laws includes inspection of compliance with county laws, arresting of
those who offend county laws, their prosecution, judicial determination of accusations, and
punishment of those who offend the county laws and regulations. Enforcement further extends to
the impoundment of property and animals which is being traded and kept contrary to the county
laws and regulations. As a result, the enforcement of county laws is arguably a function of
county executive committees and they are required to cooperate with the police, judiciary,
independent commissions, and offices such as the ODPP and other organs of the national
government.

Functions of county Inspectorates

County inspectorate officers are supposed to enforce the county laws and regulations, the
functions include:

 To enforce and ensure compliance with County laws and other relevant laws.

 To provide Security Services to County VIPs, properties and installations.

 To detect, investigate and prosecute criminal activities related to the County Govt.

 To promote good governance and best practices in enhancing service delivery.

 Participate in National activities.

 General Administration and support services.

Whether ODPP has the power to charge county-by-law offenders.

The Office of the Director of Public Prosecutions (ODPP), which is a division of the Office of
the Attorney General and Department of Justice, is primarily responsible for prosecuting
criminal charges in Kenya. According to Article 157 of Kenya's 2010 Constitution, the ODPP, an
independent organization, was created with the responsibility of prosecuting crimes on behalf of
the government. The term "public prosecutor" refers to the DPP and any other individual acting
in the DPP's capacity as authorized by Article 157(9) of the Constitution of Kenya.

Article 157 of Kenya's 2010 Constitution establishes the Director of Public Prosecutions'
(ODPP) which is operationalized by the ODPP Act at Section 5 (1). According to Article 157(6),
the Office of the Director of Public Prosecutions is granted state prosecutorial authority. The
ODPP office is independent as stated in Section 6 of the ODPP Act and Article 157 of the
Constitution where the DPP may exercise their powers without seeking the approval of any
person or authority, and they may not be directed or controlled by anyone else. Being an
independent public office, the DPP is not subject to any guidelines, orders, or recommendations
given by any institution or body. However, if it is established that the requirements of article
157(11) have not been met, the High Court may properly inquire into any issues raised by this
and issue appropriate orders in accordance with article 165(3)(d)(ii). Courts have ruled that
prosecutorial discretion is subject to some degree of judicial reverence, and as various court
decisions demonstrate, the courts will sometimes and in the most egregious and obvious of
circumstances interfere with the exercise of discretion. As the cornerstone of liberty and the rule
of law, the High Court has a constitutional duty to interpret the Constitution and ensure, through
enforcement, that the populace enjoys their fundamental rights and freedoms. The court must
uphold and implement the letter and spirit of the Constitution when interpreting it, always
making sure that the interpretation aligns with public goals and contemporary trends.

The Office of the Director of Public Prosecutions Act of 2013 is the primary legal legislation
governing the ODPP. In order to give effect to Article 157 of the Kenyan Constitution of 2010,
which established the ODPP as an independent office. This Act was passed to outline the duties,
authority, and powers of the ODPP. The Office of the Director of Public Prosecutions Act, 2013,
defines the ODPP's organizational structure as well as the tasks and responsibilities of the DPP
and other ODPP personnel. The Act also specifies the ODPP's duties and authority in relation to
the prosecution of criminal charges, as well as the DPP's appointment, qualifications, and terms
of service. The duty to prosecute violations of county laws is not specifically mentioned in the
ODPP Act, 2013. However, Section 3 of the Act stipulates that the ODPP is in charge of
prosecuting criminal offenses committed in accordance with any stated legislation. This covers
both transgressions of national law and violations of county by laws. The ODPP relies on
numerous investigative agencies to launch criminal prosecutions as espoused under section 2(1)
of the ODPP Act. The guiding principles that must be followed by the ODPP in making all
decisions are laid out in Section 4 of the ODPP Act. Among these are the principles of natural
justice, the need to uphold the rule of law, the need to stop the abuse of the legal system, and the
public interest.
The criminal procedure code tasks the ODPP with prosecuting all criminal matters in Kenya,
including those involving violations of both national and county by laws. According to Section
14 of the CPC, the DPP is in charge of overseeing and directing the prosecution of criminal
proceedings, which are brought in the name of the Republic of Kenya. The ODPP has the
authority to establish and carry out criminal proceedings against any individual before any court
in Kenya. In Section 26 of the CPC, the ODPP is bestowed with power to withdraw charges, to
change the form of any charge, and to take over and continue the conduct of criminal
proceedings. Both national and county criminal laws are subject to these powers.
The DPP’s authority for the prosecution of crimes against county laws is outlined in Section 53
of the County Governments Act (CGA). The section espouses that whether or not the
prosecution is brought at the request of the relevant county administration, the DPP may bring
charges for any offense originating under this Act or any other county law. Therefore, regardless
of whether the county government seeks it, Section 53 of the CGA grants the ODPP the authority
to bring charges for any crime that is in violation of county laws. This is in addition to the
ODPP's authority to prosecute crimes in accordance with national laws under the Penal Code and
the Criminal Procedure Code.

Conclusion
The Office of the Director of Public Prosecutions (ODPP), which is a division of the Office of
the Attorney General and Department of Justice, is primarily responsible for prosecuting
criminal charges in Kenya and to take over and continue the conduct of criminal proceedings. .
According to Article 157 of Kenya's 2010 Constitution, the ODPP, an independent organization,
was created with the responsibility of prosecuting crimes on behalf of the government. The term
"public prosecutor" refers to the DPP and any other individual acting in the DPP's capacity as
authorized by Article 157(9) of the Constitution of Kenya.

The county inspectorates lacks authority to charge county offenders as they are not mandated to
do so. They have inadequate legal and institutional framework, lack capacity for the enforcement
of county laws by the counties, lack uniform code of conduct for county inspectorates; and lack
of county courts to resolve disputes involving county governments and to enforce county laws.

The performance of county inspectorates depicts numerous glitches as most of the county
inspectorates hardly undergo any training besides the minimum secondary school education
requirement and being physically and mentally fit. As a result, the capacity of the county askaris
is low considering their training schools, curriculum and training modes, and length being
questionable.

The binding nature of advisory opinion of the supreme court with a comparative study on
international law jurisprudence

BRIEF FACTS

We refer to the above matter where you instructed us to give a legal opinion on the binding
character of the advisory opinion of the Supreme Court. Please find our suitable legal opinion as
follows;

ISSUES

 What is an advisory opinion

 What are the laws and regulations governing Supreme Court advisory opinion in Kenya
 What is the binding nature of an advisory opinion
 Comparative study on advisory opinion between Kenya and other jurisdictions

DEFINITIONS OF ADVISORY OPINION

Article 96 of the United Nations Charter defines “Advisory opinion” as legal advice given to the
United Nations or a specialized agency by the International Court of Justice. The term is also
defined in Black’s Law Dictionary, 8th Edition as a non-binding statement by a court of its
interpretation of the law on a matter submitted for the purpose.

Further, the phrase "advisory opinion" in the case of the Interim Independent Electoral
Commission [2011]eKLR means legal advice provided by the court to the public entity or
bodies seeking the same, as provided for in the law. The opinion is not a judgment, rule, order, or
decree of any kind.

RULES
The Constitution of Kenya 2010
The Supreme Court may render an advisory opinion on any topic pertaining to county
government upon request from the national government, any State agency, or any county
administration, according to Article 163(6) of the Kenyan Constitution. The reference process
may be conducted ex parte or through an inter parte hearing with the parties involved—the
applicants, respondents, and/or amicus curiae as interested parties. All courts, with the exception
of the Supreme Court, are bound by its rulings.1
For a request to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within
the four corners of Article 163(6):
i. It must be an issue relating to a county government. The Court considers if the issue
relates to the County government on a case to case basis.
ii. Only the national government, a State organ, or a county government may submit a
request for an advisory opinion. Only with the Court's permission may any other
individual or organization be included in the proceedings, either as an intervener
(interested party) or as an amicus curiae.
iii. When the matter to which the reference has been made is the subject of proceedings
before a lower Court, the Court will be reluctant to exercise its discretion to render an
advisory opinion.
iv. If the applicant can show that the matter is of high public significance and necessitates
prompt resolution by an advisory opinion, the Court may still give an advisory opinion
even when the subject matter of the reference to the Court is under consideration by a
lower court.

Supreme Court Act

Section 13 of the Supreme Court Act No. 7 of 2011 espouses on advisory opinion. Pursuant to
article 163(6) of the Constitution of Kenya 2010, the court has powers to give advisory opinion
upon request by the national government, state organ or a county government on matters
concerning it. 2 The court has powers to invite an expert to give an opinion on a subject matter3.
Supreme Court Rules
The Supreme Court Rules 2012, under Rule 41, states that pursuant to article 163(6) of the
Constitution of Kenya 2010, a state organ, national government or county government may seek
advisory opinion from the Supreme Court.

1
Constitution of Kenya 2010, article 163(7).
2
The Supreme Court Act No. 7 of 2011, section 13(1).
3
The Supreme Court Act No. 7 of 2011, Section 13(4.
Supreme Court of Kenya Practice Directions

The Supreme Court of Kenya Practice Directions, 2020 under Section 37, offers further
guideline as to the nature and exercise of these powers advisory powers. The section stipulates
that a party seeking advisory opinion must give reasons on why the opinion is being sought,
clarify on the legal provisions in dispute, the substantive issue and background statement of the
matter before the Court4.

In the case of Interim Independent Electoral Commission [2011] eKLR the court examined
the binding nature an advisory opinion. The issue under determination was what is the juridical
status and or precedent of advisory opinions? The Court held that an advisory opinion is binding
on the parties who filed the case as well as subordinate courts. The court explained that it was
improper to use the Supreme Court's Advisory Opinion as mere guidance. Furthermore, it had to
be treated as an authoritative statement of the law otherwise; it would reduce Article 163(6) of
the Constitution to an idle provision of little juridical value. However, the court elaborated that
an Advisory Opinion may not be capable of enforcement in the same way as ordinary decisions
of the Court.

The court reasoned that when an advisory opinion is sought, the parties ought to follow the
advice given. In this case, the opinion requested was to dispel uncertainty and allow the IIEC to
act in conformity with the law. If IIEC were not to be bound, then it would just be asking for an
opinion in the hopes that the court would agree with it, and if not, it would discard the opinion.
Additionally, the Supreme Court concluded that the binding nature of Advisory Opinions was
consistent with the values of the Constitution, particularly the rule of law.

In the matter of the Principle of Gender Representation in the National Assembly and the
Senate [2012] eKLR, the Court recognized that Advisory Opinions are important in settling
matters of great public importance which may not be suitable for conventional mechanisms of
justiciability. Devolved governance scheme raises a variety of structural, management and
operation challenges unbeknown to traditional dispute settlement. These situations are most
propitious and raise the obligation of the Supreme Court to give an opinion in accordance to the

4
The Supreme Court of Kenya Practice Directions, 2020, Section 37.
Constitution. The Court held that the issue on the gender composition of the National Assembly
and the Senate are matters of the county government. The matters bears impact on the County
Assembly. A matter can be brought to the supreme Court for Advisory Opinion, if the matter is
of great public importance and the matter affect the County Government.

COMPARATIVE STUDY

INTERNATIONAL COURT OF JUSTICE

An advisory opinion is legal advice given to the United nation or a specialized agency by the
international court of Justice.

Parties that can seek an advisory opinion from the court

This is per Article 96 of the UN charter which provides that

1. The General Assembly or the Security Council may request the International Court of
Justice to give an advisory opinion on any legal question.5

2. Other organs of the United Nations and specialized agencies, which may at any time be
so authorized by the General Assembly, may also request advisory opinions of the Court
on legal questions arising within the scope of their activities.6

The court gives an advisory opinion on legal questions that are lodged by whatever body is
authorized by the Charter of the united nations.7

Jurisdiction

To issue an Advisory Opinion, the ICJ must first determine that it has the necessary authority. It
is up to the ICJ to determine whether the request originates from a UN body or an UN-
specialized agency that has the necessary authority to make it. Article 96 (1) of the UN Charter
expressly grants the UN General Assembly the power to request an Advisory Opinion.

5
Article 96 of the united nation charter
6
Article 96 of the United nation charter
7
Article 65 of the statute of the court
Only once has the ICJ turned down a request because it lacked jurisdiction. The ICJ determined
that it was unable to grant the WHO's request for an advisory opinion on the legality of a state
using nuclear weapons in an armed conflict. The ICJ stated at the outset that by articles 65(1) of
its Statute and 96(2) of the Charter, three requirements must be met for it to have jurisdiction
over a request for an advisory opinion made to it by a specialized agency: 1. By the Charter, the
agency obtaining the Opinion from the ICJ must be properly authorized to do so. 2. The
requested opinion must address a legal issue, and 3. The issue must arise within the purview of
the asking agency's operations.

The first two requirements were satisfied in the WHO request. Regarding the third requirement,
however, the ICJ determined that the WHO was permitted by its Constitution to address the
health effects of the use of nuclear weapons or any other hazardous activity and to take
preventive measures aimed at safeguarding the health of populations if such weapons are used or
such activities are engaged in. However, the call for an opinion was regarding the legality of
using such weapons in light of their effects on human health and the environment, not the health
consequences of their usage. The ICJ emphasized that whatever the repercussions, the WHO's
ability to address them is unrelated to the legitimacy of the actions that led to them.

How is advisory opinion requested?

Advisory opinions in the court are made via a written request that contains the exact question in
which the advisory opinion is requested. The request is also accompanied by documents that
explain the matter further.8 The registrar gives notice to the states in which the advisory opinion
is sought. The registrar also informs the states that are entitled to appear before the court or
furnish the court with information about the question that the court is ready to receive and the
time limit set. If a state feels entitled to receive the communication about the advisory opinion
sought, it may submit its written statement and leave the court to decide whether it should be hurt
or not. The states presenting shall have the discretion of commenting on others’ submission of
the same and the president shall decide in each particular case. 9the court shall deliver the
opinion in open court after the notice has been given to the secretary general and members of the

8
ibid
9
Article 66 of the statute of the court
UN and any other concerned members. 10If the request is made by two or more states article 31 11
shall apply.12

Is ICJ advisory opinion binding?

The advisory opinion given by the ICJ are not binding but they carry great moral authority. More
often than not, these advisory opinions are used to enhance diplomatic relations and promote
peace. 13

UNITED STATES

The Black’s Law Dictionary states that an advisory opinion is a non-binding interpretation of the
law by a court, essentially the court providing advice on an abstract or hypothetical legal
question.14 The advisory opinion was characterized by the Supreme Court as a sophisticated
expression of legal judgment on topics that are not before a court in the context of litigation
involving specific claims by opposing plaintiffs.15 The question of advisory opinion arose in the
famous Hayburn case of 1792. The supreme court interpreted that Article III of the U.S.
Constitution limited federal courts from deciding on controversies and cases. Therefore, if a
federal court claims to decide on a matter that is not the subject of a case or controversy, it is not
acting in a "properly judicial" capacity, and as a result, its opinion will only be advisory. 16 The
chief justice in the decision was guided by that neither the executive nor legislative branches can
legally assign to the judicial branch any duties but such as are properly judicial, to be done
judicially.17

In the United States, the federal courts may not have the subject matter jurisdiction to render
advisory opinions, however, individual states have the liberty to set up laws governing the
administration of advisory opinions by the state courts. States legislate on three important
10
Article 67 of the statute of the court
11
Article 31 of the rules of the court states that In every case submitted to the Court, the President shall ascertain
the views of the parties with regard to questions of procedure. For this purpose, he shall summon the agents of
the parties to meet him as soon as possible after their appointment, and whenever necessary thereafter.
12
Article 102 of the Rules of the court (1978)
13
https://doi.org/10.1093/jnlids/idp005
14
‘Advisory Opinion’ Black’s Law Dictionary (11thed,2019)
15
‘Overview of Advisory Opinions’, , Constitution Annotated
https://constitution.congress.gov/browse/essay/artIII-S2-C1-4-1/ALDE_00013563/ accessed 13 May 2023.
16
Phillip M Kannan, ‘Advisory Opinions By Federal Courts’ 32 University of Richmond Law Review 769.
17
ibid.
matters on the subject. First states limit who may request advisory opinions. Second, the state
court limits the circumstances under which advisory opinions may be requested. Finally, the
states describe the legal status of advisory opinions including their binding nature and value.18

On who may request advisory opinions, the related states allow governors who are members of
the executive to seek this service from the courts. Other states allow the legislature and Attorney
General. New Hampshire and Massachusetts give liberty to the independent council used to vet
judicial nominees to seek an opinion on the same.19 The executive seeks advice on running the
state and the impact of different laws on the general public. On the other hand, the legislature
forwards matters on the constitutionality of pending legislation and the use of constitutional
provisions in existing legislation.20

INDIA

The Constitution of India under Articles 124 to 147 lays down the jurisdiction of the Supreme
Court. It is divided into original, appellate, and advisory jurisdiction. Article 143 of the Indian
constitution specifically confers advisory jurisdiction to the Supreme Court.21 This is one of the
least used jurisdictions of the court having handled only 15 controversies.22 Article 143 grants the
president power to consult the Supreme Court.23 The president can consult on a matter of law and
fact that arises and is likely to affect the general public in one way or another. 24 The Article takes
an advisory opinion as a consultation where the court will only render an opinion and not a
judgment or decree. On the binding nature of the opinions, the supreme court states that opinions
are not laws declared by the court. Therefore, the opinions are not binding to the subordinate
courts and even the president.25

18
Lucas Moench, ‘State Court Advisory Opinions: Implications For Legislative Power and Prerogatives’ 97 Boston
University Law Review 2243.
19
ibid.
20
ibid.
21
The Constitution of India, 1950.
22
Npradhan, ‘Advisory Jurisdiction of the Supreme Court- Is the Court Bound to Give Its Opinion’ Legal Service
India.
23
The Constitution of India.
24
Jasleen Kaur, ‘APEX COURTS ADVISORY JURISDICTION’ 6 Journal of Legal Studies and Research 45.
25
ibid.
Documents that the government of Singapore will be expected to prepare requesting the
Kenyan government to surrender Mrs. Koros Mwiti to the Singaporean government.

Request

REF:SG/220/05/2023 DATE: 25th MAY

2023
ATTORNEY GENERAL

NAIROBI-KENYA

RE: REQUEST FOR ASSISTANCE IN EXTRADITION OF KOROS MWITI

Greetings, I pass my compliments to the competent authorities of the Republic of Kenya. I am

humbly requesting for your assistance in acquiring evidence for an ongoing criminal
investigation. The request is made under the extradition (Common Wealth Countries) Act which
we are parties. The information and evidence to be obtained from this investigation will not be
used without your consent for any other purpose than that which is specified herein.

AUTHORITY INITIATING THE REQUEST

The investigative authority in this case is the Criminal Investigation Department (herein referred
to as CID) of Singapore a branch under the Singapore police force (SPF) which is vested by the
Police Force Act with powers to maintain law and order and to investigate criminal matters and
arrest offenders. The request is being made by the attorney general who is designated to make an
extradition request and handle all formal request for assistance in line with the mutual assistance
in Criminal Matters Act and any applicable Mutual Legal Assistance Treaty. The attorney
general who is also the legal advisor to the government playing an important role in upholding
the rule of law. He is also vested with powers to institute to conduct, institute or discontinue any
criminal proceedings.

The Attorney General Chamber’s is seeking assistance touching on criminal matter that was
investigated by CID and is pending before the court of Singapore and which evidence has shown
there is a connection with the Republic of Kenya. In this case Mrs. Koros Mwiti is required to
come to Singapore and answer charges of four counts of cyber-dependent crimes and annexed
are the summons issued.

The need for assistance

The request for assistance is made in the interest of justice. The assistance offered will not be
used for fiscal, military or any political purpose in Singapore. The information sought will not be
used to try or imprison one for any other offence than that which extradition was granted and
committed before the extradition.
A BRIEF SYNOPSIS OF THE CASE

On or about 16th February 2023, Mrs Koros Mwiti accessed the systems of Siricon Varrey Bank
a Singaporean Bank while scouring the internet for vulnerabilities. On her mission, she made
away with one billion dollars’ worth of bitcoin. The investigative authority tracked the act to
Mrs. Koros Mwiti who is currenty a resident of Kilifi county in Kenya.

Mrs. Koros Mwiti is a Kenyan currently residing in Kilifi county within Kenya. She is a village
manager of Msabaha village famous for her computer coding skills. We believe that she is also a
hacker who spends her time on the internet checking for any vulnerabilities in financial
institutions. She goes ahead to hack them and collect bitcoins which she then sells to North
Korean ‘investors’ in US Dollars.

NATURE OF THE CASE

The actions of Mrs.Koros Mwiti of hacking Siricon Varrey Bank and taking away bitcoins worth
one billion dollars’ amounts to criminal offences which:

(a) Cyber-dependent crimes

This is a criminal matter presently before the CID. Mrs.Koros Mwiti is charged with four counts
of cyber-dependent crimes contrary to section 378 explanation 6 of the Penal Code Singapore
and Section 3, 4, 6 and 13 of the Cyber Misuse Act.

DOCUMENTS IN SUPPORT OF THE REQUEST

We enclose the following documents in support of the request:

1. Charge Sheet.

2. Copy of Mrs. Koros Mwiti’s description and photo.

3. Arrest warrant

RECIPROCITY BETWEEN SINGAPORE AND KENYA

The Attorney General Chambers of Singapore will be grateful for any assistance that the

Competent Judicial and Administrative Authorities of the Republic of Kenya can offer in
response to this request as the criminal activities concerned have an adverse bearing on the
national security of Singapore.

The Attorney General Chambers and the Singapore Police Force will assist in the investigation
of any crime by the persons within the jurisdiction of the Republic of Singapore in the spirit of
Mutual

Legal Assistance in the suppression of crime.

UNDERTAKING

We hereby undertake to abide by the terms and conditions of the governing legislation in the

Republic of Kenya and Republic of Singapore.

HARVEY SPECTRE

HIGH COMMISSIONER FOR SINGAPORE TO KENYA

Charge sheet

THE CRIMINAL PROCEDURE CODE

(Chapter 68, 2012 Revised Edition)

Section 123-125

CHARGE

NAME: KOROS MWITI

SEX/AGE: FEMALE/28 YEARS OLD

 PASSPORT NO: AK000426N

NATIONALITY: KENYAN

D.O.B: 4TH JANUARY 1995

are charged that you, on the 16th day of February 2023, between 3:05 am and 4:07 am, at the
vicinity of Simba Drive Off Daraja Road, located at Msabaha Village, Kilifi County, did, using
computer-make Lenovo of IP Address 6060004, hack into and collected bitcoins worth one
billion dollars from Siricon Varrey Bank, without authorization. You have thereby been charged
with;

CHARGE COUNT ONE: UNAUTHORIZED ACCESS TO COMPUTER MATERIAL

CONTRARY TO SECTION 3(1) OF COMPUTER MISUSE ACT PUNISHABLE UNDER
SECTION 3(1) (A) READ WITH SECTION 11 (A)OF THE COMPUTER MISUSE ACT
(CHAPTER 50A).

are charged that you, on the 16th day of February 2023, between 3:05 am and 4:07 am, at the
vicinity of Simba Drive Off, Daraja Road, located at Msabaha Village, Kilifi County, did, using
computer-make Lenovo of IP Address 6060004, hack into and collected bitcoins worth one
billion dollars from Siricon Varrey Bank, without authorization. You have thereby been charged
with;

CHARGE COUNT TWO: ACCESS TO COMPUTER MATERIAL WITH INTENT TO

COMMIT COMMISSION OF OFFENCE CONTRARY TO SECTION 4(1) AND
PUNISHABLE UNDER 4(3) OF THE COMPUTER MISUSE ACT(CHAPTER 50A).

are charged that you, on the 16th day of February 2023, between 3:05 am and 4:07 am, at the
vicinity of Simba Drive Off, Daraja Road, located at Msabaha Village, Kilifi County, did, using
computer-make Lenovo of IP Address 6060004, hack into and collected bitcoins worth one
billion dollars from Siricon Varrey Bank, without authorization. To have thereby been charged
with;

CHARGE COUNT THREE: UNAUTHORISED USE OF COMPUTER SERVICE

CONTRARY TO SECTION 6(1) OF COMPUTER MISUSE ACT AND PUNISHABLE
UNDER SECTION 6(1)(D) READ WITH SECTION 11(1)OF THE COMPUTER MISUSE
ACT(CHAPTER 50A).

are charged that you, on the 16th day of February 2023, between 3:05 am and 4:07 am, at the
vicinity of Simba Drive Off, Daraja Road, located at Msabaha Village, Kilifi County, did, using
computer-make Lenovo of IP Address 6060004, hack into and collected bitcoins worth one
billion dollars from Siricon Varrey Bank, without authorization. You have thereby been charged
with;

CHARGE COUNT FOUR: DISHONESTLY TRANSFERING PROPERTY FROM ONE

ACCOUNT TO ANOTHER WITHOUT OWNER’S CONSENT CONTRARY TO
SECTION 378 EXPLANATION 6 OF THE PENAL CODE AND PUNISHABLE UNDER
SECTION 379 OF THE PENAL CODE(CHAPTER 17).

KROP NAKPO, SSS

INVESTIGATING OFFICER

CYBERCRIME DIVISION

SINGAPORE POLICE FORCE

Report No:19

Date:18TH MAY 2023

Arrest warrant

FORM 2

Regulations 8(1) and 9(1)

SINGAPORE ARMED FORCES ACT

 (CHAPTER 295)

SINGAPORE ARMED FORCES

(ARRESTS, SEARCHES AND INVESTIGATION OF OFFENCES)

WARRANT OF ARREST

TO: The Commissioner of Police,

P.O Box 54367-998,

Singapore.

You are hereby authorized to arrest:

MRS KOROS MWITI.

For having committed or reasonably having committed:

1.Theft contrary to section 378 of the Penal Code Chapter 225 Laws of Singapore.

2. Access with intent to commit an offence contrary to section 4(1) of the Computer Misuse Act
of 1993.

3. Unauthorized access to computer materials contrary to section 3(1) of the Computer Misuse

Act of 1993.

DATED this ------------------------------------Day of -------------------------------------------------2023.

…………………………………………………………………………….

CHIEF MAGISTRATE
Documents necessary to move a Kenyan court to issue necessary orders for the surrender
of Mrs. Korros Mwiti

Authority to proceed

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT KILIFI

MISCELLANEOUS APPLICATION NO OF 2023

REPUBLIC….……………………………………………………APPLICANT
 KOROS MWITI………………………………………………. RESPONDENT

AUTHORITY TO PROCEED

(Pursuant to the provisions of Section 7 of the Extradition (COMMON WEALTH COUNTRIES

Countries) Act Cap 77 Laws of Kenya)

TO: The Chief Magistrate

Kilifi Law Courts

P.O Box 45678 – 9000

KILIFI.

WHEREAS a request has been duly made to me JUSTIN MUTURI, Attorney General of the
Republic of Kenya, on behalf of the Republic of Singapore for the surrender of KOROS
MWITI who is accused of the extraditable offences of: -

1. Four counts of cyber-dependent crimes contrary to section 378 of the Penal Code of
Singapore and section 3,4, 6 and 13 of the computer misuse act.

I hereby authorize that the Honorable court acts on the extradition request on the basis that the
request has met the threshold under the extradition (common wealth countries) act cap 77 laws of
Kenya.

I do hereby certify that KOROS MWITI is a Kenyan citizen and it is ordered that you issue a
warrant of arrest and a committal order for her.

GIVEN under my Seal of the Attorney General at Nairobi,

This…25th………. day of….…………MAY.………….2023

JUSTIN MUTURI,

ATTORNEY GENERAL,
KENYA

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT KILIFI

MISCELLANEOUS APPLICATION NO …..OF 2023

REPUBLIC….……………………………………………………APPLICANT

VERSUS

KOROS MWITI……………………..…………………………RESPONDENT

NOTICE OF MOTION
 (Under the Extradition(contagious and Foreign countries Act) chapter 76 laws of Kenya, the
Extradition (Commonwealth Countries) Act ,compendium of bilateral, regional and
international agreements on extradition and mutual assistance in criminal matters)

TAKENOTICE that this Honorable Court shall be moved on the 25th day of May 2023 at 9.00
O’clock in the forenoon or soon thereafter where the Applicant shall make an application before
court for Orders THAT:

1. This application be certified urgent; service dispensed with and it be heard ex-parte in the first
instance due to its urgency.

2. This honorable court grant warrants of arrest against the Respondent for purposes of having
him extradited to Kenya to face charges of unauthorized access to a computer system, access
with intent to commit further offence, unauthorized interference, unauthorized interception and
theft.

3. The Respondent be handed over to the Criminal Investigation Department of Kenya for further
investigation.

4. The Defendant/Respondent bears the cost of this Application.

WHICH APPLICATION is based on the following grounds, the annexed affidavit of

ZADOCK ONDIEK, the DIRECTOR OF PUBLIC PROSECUTION and on such other or
further grounds as may be adduced at hearing hereof, THAT;

1. The respondent is being sought for to be extradited for crimes committed within the
territory of the Republic of Kenya against Siricom Varrey Bank an entity in Singapore.

2. The Republic of Kenya and Singapore signed a bilateral agreement on extradition, the
Extradition (Commonwealth Countries) Act and pursuant to an extradition treaty with Singapore
under legal notice 45 of 1970.
3. The Government of the Republic of Singapore has written to the Government of Kenya
requesting that we extradite Mrs. Koros Mwiti.

4. It is in the interest of justice that this matter be heard and determined expeditiously.

Dated at Malindi on this …………….. day of ……………… 2023

........................................................................................
DIRECTOR OF PUBLIC PROSECUTION

APPLICANT

DRAWN & FILED BY:-

DIRECTOR OF PUBLIC PROSECUTIONS

MALINDI COMPLEX, 1ST FLOOR, LAMU ROAD
MALINDICHAKA APARTMENTS, SUITE NO 2
P.O. BOX 20230-00100
MALINDI, KILIFI COUNTY.
Tel. 0422121259
Email: info@odpp.go.ke
TO BE SERVED UPON:-

Mrs. Koros Mwiti.

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT KILIFI

MISCELLANEOUS APPLICATION NO 700 OF 2014

REPUBLIC….…………………………………………….………………………APPLICANT

VS

KOROS MWITI………………......…………………………………………….RESPONDENT

WARRANT OF ARREST

(Pursuant to the provisions of Section 5((1) of the Extradition(Contiguous and foreign

Countries) Act Cap 76 Laws of Kenya and Sections 14,15 and 16 of the Computer Misuse
and Cybercrimes Act, 2018, Section 3,4,5,6,7, and 13 of the Computer Misuse Act 1993 of
Singapore)

TO: The Inspector General of Kenya

P.O Box 5677-889

KILIFI

KENYA

WHEREAS KOROS MWITI has this day been charged before this court for the offences

of:

1. Theft contrary to Section 268 as read with Section 275 of the Penal Code of Kenya.

THEREFORE you are hereby commanded forthwith to apprehend the said KOROS MWITI and
to bring him before this Court to answer to the said charge, and to be further dealt with according
to Law.

DATED this……………………………..day of………………………….2014

……………………………………………..

CHIEF MAGISTRATE
 REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT KILIFI

MISCELLANEOUS APPLICATION NO………….OF 2023

 REPUBLIC ………………………………………..………………APPLICANT

KOROS MWITI………………………………………………..RESPONDENT

COMMITAL ORDER

(Pursuant to the order of the Court issued on the 8th of May 2023 by the Honorable M.
Mwadime, Chief Magistrate)

TO: THE OFFICER IN CHARGE

KILIFI REMAND PRISON

P.O BOX 62527- 8010,

KILIFI

On the 8th of May 2023, Koros Mwiti was presented before me pursuant to an order issued by
Justin Muturi, Attorney General under section 5(1) of the Extradition (Contiguous and Foreign
Countries) Act Cap 76, on the grounds of Theft Contrary to Section 268 read with Section 275 of
the Penal Code of Kenya.

This is therefore to command you, Officer in Charge, Kilifi Remand Prison, to receive Ms.
KOROS MWITI into your custody and to keep her safely therein until she is delivered pursuant
to Section 8(3) of the Extradition (Contiguous and Foreign Countries) Act Cap 76 for which
THIS SHALL BE YOUR WARRANT.

Given under the Hand and the Seal of this Honorable Court at Kilifi, Kenya

On this…………………….day of……………………………..2023

…………………………………..

MKURUGENZI MWADIME

CHIEF MAGISTRATE
 REPUBLIC OF KENYA
SEARCH WARRANT

IN THE CHIEF MAGISTRATE’S COURT AT KILIFI

MISCELLANEOUS APPLICATION NO 7 OF 2023

MISC. CRIMINAL CASE…………………………………………………….OF 2023

TO: The Inspector General of Kenya

 P.O Box 5677-889
COUNTY DCI HEADQUARTERS
KILIFI
1. WHEREAS it has been lead before me and on oath inquiry thereupon, I have been led to
believe that the said house XXX within Kilifi County which belongs to Koros Mwiti
contains:-
i. Materials and Computer that she uses in hacking banks across the globe

NOW THEREFORE, I authorize you No. 234102 Chief Inspector County DCI Kilifi, by this
search warrant to enter the house of Koros Mwiti and with such assistance as shall be required
and to use if necessary reasonable force for the purpose and to search every part of the said house
to seize and take possession of all weapons and materials that may be used to undermine the rule
of law.
And forth will be brought before this court such of the said recovered gadgets, materials and
inventory may be taken possession of returning this warrant with an endorsement certifying that
what you have done under it immediately upon execution.

Given under my hand and the seal of the Court this 5thday of March 2023
………………………………………
Judge/Magistrate
(1) Name and address
(2) Name of person whose records requires investigation
(3) Name and rank of police officer or other authored person

GPK(L)