The Director of Public Prosecution Noordin Haji has suffered a major blow after the Anti-Corruption High Court ruled that part of the evidence in the 59,688,250 Euros (currently about Ksh7 billion) Anglo Leasing case obtained from Swiss authorities fails to meet the admissibility test.
A judgment delivered by Justice Esther Maina on Wednesday, October 19, 2022, upheld the lower court's decision that had struck out the crucial evidence in the case on grounds that the prosecution failed to follow the procedure of producing the documentary evidence.
The evidence was obtained from Swiss authorities through Mutual Legal Assistance over seven years ago. The documentary evidence was sent to EACC in two sets of documents. One set was contained in a flash disc while the other was shipped through courier services.
The trial magistrate Martha Mutuku barred the prosecution from using the evidence against the accused persons namely the late former Finance Minister David Mwiraria and former PSs Dave Mwangi, Joseph Magari, and former Treasury Head of Department David Onyonka together with Infotalent Limited which is allegedly associated with businessmen Deepak Kamani, Rashmi Kamani and their late father Chemanlal Kamani over the Euros 59,688,250 Euros (currently about Ksh7 billion) on Kenya E-cops security project noting that the evidence was in electronic form and was not accompanied by a certificate as required under the Evidence Act.
Aggrieved by the decision dated February 18 this year, the DPP moved to the High Court seeking a review arguing that the magistrate was wrong in striking out the evidence and had prejudiced their case.
"The impugned ruling has far-reaching and adverse ramifications on the proceedings in Anti-Corruption Case Number 4 of 2015 (Republic vs David Mwiraria & 6 others) and unless revised, it would defeat the fair administration of justice,” Principal Prosecution Counsel Evah Kanyuira had told the High Court in the review application.
But Justice Maina dismissed the application and ruled that it was mandatory for the DPP to comply with the laws for producing evidence.
"The trial magistrate was correct. The law of evidence must apply to evidence obtained (Foreign Countries) through Mutual Legal Assistance. A certificate should have accompanied the documentary evidence," Justice Maina said.
" Without evidence of compliance with sections 105 and 106 B of the Evidence Act, it means the documents did not meet the admissibility test. So, the magistrate was correct in her finding," the Judge added.
She observed that a portion of the rejected documents were public documents and was also not certified as required by the law.
"The court notes that the right to a fair trial is non-derogable and applies to both sides. The law on admissibility must apply. Ignoring the mandatory provision of the evidence act in admissibility of evidence will be an infringement of the accused persons’ rights hence the upshot for revision is unmerited and therefore dismissed," Justice Maina said.
The magistrate had upheld an objection that was raised against the admission of the evidence by defense lawyers Ahmednassir Abdullahi, Edward Oonge and Sadia Carren who had cited legal flaws in the acquisition, retention, and manner of presentation of the case documents and concurred the prosecution "failed to follow legal rules."
The lawyers had submitted that the documents were "illegally obtained" through a flawed Mutual Legal Assistance (MLA) procedure and would be prejudicial to their clients.
Abdulahi had also disputed the authenticity of the evidence documents tabled in court by the prosecution saying that due process was not followed when obtaining the same from overseas.
The objection to the use of the documents was made after EACC lead investigating officer in the case John Kiilu intended to use the evidence received from Swiss authorities to demonstrate how the accused person conspired to defraud the government of billions of shilling in the alleged supply of police equipment.
