India’s despair over the failure to bring Vijay Mallya and Nirav Modi back despite winning extradition cases in UK courts pales in comparison to the saga of Yagnesh Mohanlal Devani. The 58-year-old Indian-origin Kenyan oil tycoon and billionaire was first arrested in May 2011 in what is known as the 2009 Triton Oil scandal which threatened oil supplies to the African nation. Nairobi is desperate to have him back, but Devani has managed to defer his removal by making a second asylum application, a template that could be replicated by Mallya and Modi. It is only after the second asylum application goes through the entire judicial process can he be removed.
Devani’s Triton Petroleum Limited was given a tender by the state-owned Kenya Pipeline Company (KPC) to supply oil in 2000. It is alleged that Triton was awarded this tender despite not having requisite infrastructure and used KPC’s facilities as Devani enjoyed good relations with senior politicians. In 2008, Triton was accused of selling 126 million litres of oil to third parties without proper authorization thus causing loss to the state and also defrauding the banks that were involved in the process.
The extradition process and first asylum application
India was Devani’s first destination after he fled from Kenya in 2008. A Kenyan minister followed him for discussions which did not prove successful. Devani then came to the United Kingdom, which is where the action shifted. In May 2011, he was arrested based on Kenya’s request for his extradition. In September 2014, the Westminster Magistrates’ Court ordered his extradition, which was approved by the UK home secretary.
Devani filed an appeal in the high court on grounds that his human rights would be breached if were kept in a Kenyan prison, and that Kenya had failed to make out a prima facie case against him. But in December 2015, his appeal was dismissed paving the way for his removal.
However, in February 2016 he applied for asylum with the UK home office which was refused by the home secretary. The asylum application then went to the courts and it was in May 2020 that the high court ruled that Devani’s extradition to Kenya would not breach his human rights. Devani then approached the UK Supreme Court, which refused permission to appeal in December 2020.
It thus took close to five years for his asylum application to reach a conclusion. Accordingly on 16 January 2021, accompanied by two Kenyan officials, Devani was seated in a Kenyan Airways plane having been brought to the airport by officers from Scotland Yard. There were only a few minutes left for his flight to take off.
The second asylum application
But unknown to the Kenyan state, Devani’s legal team had managed to get an order from a UK judge halting his extradition. That piece of paper was served to the two officers in the aircraft following which Devani was allowed to deboard. It emerged that Devani had made a fresh (second) asylum application and till it reached a final conclusion, he couldn’t be removed from the UK. It says a lot about the agility of Devani’s legal team who it is understood mounted the second asylum request after the Kenyan officials travelled to the UK to fetch their client. It was a Saturday when they managed to get a court order halting Devani’s removal.
Toby Cadman, joint head of Guernica 37 Chambers International, who has appeared in several extradition cases in the UK and around the world, told Moneycontrol that it is not unusual for individuals to make fresh asylum requests after being unsuccessful in the first instance. “It has been seen that asylum applications made by those facing extradition are usually not successful. But by law they can make a second asylum application citing new grounds.”
In the case of Mallya and Nirav Modi, it seems their (first) asylum applications are still under judicial process. Considering the timescale in Devani’s case, it could still be few years before a final decision is arrived at. And if they choose to make a second asylum request, it would only lead to further delay. Devani was arrested in 2011, 12 years later, he is still in London.
While Devani may be away from Nairobi, he still has to follow bail conditions, and faces mounting legal bills. Moneycontrol has gathered that two weeks ago Devani moved from his plush abode in tony Central London to a house in East London. Giving up a fancy Central London address signifies financial distress, which also ails Nirav Modi, and to some extent Vijay Mallya.
Since his arrest in March 2019, Nirav Modi has been lodged in Wandsworth Prison and has not made fresh attempts to get bail. Although Nirav Modi does not have to bother about house rent or groceries, his legal bills remain unpaid for which he is facing civil proceedings. Mallya, on the other hand, remains free and continues to travel between his two homes in England – his country house in Hertfordshire and London townhouse overlooking Regents Park. The Worldwide Freezing Order (WFO) against him remains in place.
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