It is a big win for the Director of Public Prosecution Noordin Haji after the Anti-Corruption High Court ruled that part of the evidence in the Ksh3.5 billion Anglo Leasing case obtained from Swiss authorities meets the integrity test.
In a ruling, Justice Esther Maina overturned the lower court's decision that had struck out crucial evidence in the case on grounds that it failed to meet the integrity test.
"The court has considered the application. It finds that the trial magistrate erred by rejecting those documents. I allow the application by the DPP that integrity of the evidence of those documents can be challenged through cross-examination," Maina ruled.
The decision comes after the DPP challenged the decision by the trial magistrate Felix Kombo to strike out the evidence in the case against businessman Rashmi and Deepak Kamani who are charged alongside former government officials Joseph Magari, Joseph Onyonka, Dave Mwangi.
In October last year, Kombo struck off the hotly contested evidence on grounds of glaring legal anomalies which the trial magistrate raised " curious" questions of non-compliance.
The magistrate had upheld an objection that was raised against the admission of the evidence by defence 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 that 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.
Magistrate Kombo said it was "curious" why proper channels in terms of remitting the evidence from Switzerland were not followed in securing the documents.
"'It is even a matter of more curiosity that it took three years to get the said documents. Which are public documents," he said.
The court said the integrity of the evidence documents is wanting as the same documents which were remitted from Switzerland stayed in a private law firm.
The magistrate further noted that the prosecution failed to follow the laid down procedures required for certification in regard to the presentation of secondary evidence.
In the case businessman, Rashmi and Deepak Kamani are charged alongside former government officials Joseph Magari, Joseph Onyonka, and Dave Mwangi.
They have denied charges of conspiracy to defraud the government through the Anglo Leasing contract.
The case revolves around a government project of modernisation of the police department by enhancing security surveillance.
The government of Kenya had entered into a contract with Sound Day Corporation before it terminated it.
It is alleged that between October 30, 2003, and April 14, 2004, conspired with others to engage in a scheme to defraud the government of Kenya of Ksh3. 5 billion through a suppliers credit contract agreement for the modernization of the Police Security Equipment and Accessories Project.
