Former Broadcasting and Telecommunication PS Sammy Itemere, Lugari MP Ayub Savula have suffered a blow after a Nairobi Magistrate Court declined to expunge the evidence of former National Land Commission official Jennifer Wambua.
Wambua was murdered in March this year and her body dumped in a thicket in Ngong before being taken to City mortuary.
Before her death, she had testified against the former PS, Lugari MP and seventeen others who are facing charges of stealing Ksh122million from the Government Advertising Agency (GAA).
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The accused persons wanted her evidence discarded as they had not cross-examined her testimony before she was gruesomely murdered.
They argued that failure to cross-examine her would result in prejudice thereby infringing on their rights to a fair trial.
It was their contention that cross-examination would have enabled the evidence of Wambua to be tested for credibility and veracity.
Chief Magistrate Wendy Micheni however dismissed their arguments saying the evidence was admissible in court as there was no particular provision to expunge from the record evidence that was lawfully and procedurally admitted to the court.
According to the Magistrate death or sickness before cross examination does not stop the evidence in chief from being admissible though its weight maybe slight.
“Under the circumstances the court finds the evidence adduced by the witness before the court shall remain on record and shall not be expunged, however the weight to rely on the said evidence will be less compared to when it would have been tested through cross examination,” she ruled.
