The Director of Public Prosecutions (DPP) Noordin Haji scored a major victory after the Anti-Corruption Court ruled that evidence obtained from Swiss authorities in the Sh3.5 billion Anglo Leasing case meets the integrity test.
Justice Esther Maina overturned a lower court decision yesterday that had struck out crucial evidence in the case because it did not meet the integrity test.
“The application has been considered by the court.” It concludes that the trial magistrate made an error in rejecting those documents. “I grant the DPP’s application, noting that the integrity of the evidence in those documents can be challenged through cross-examination,” Justice Maina ruled.
Proper channels
The decision comes after the DPP challenged trial magistrate Felix Kombo’s decision to throw out evidence in the case against businessmen Rashmi and Deepak Kamani, as well as former government officials Joseph Magari, Joseph Onyonka, and Dave Mwangi.
Kombo dismissed the contentious evidence in October of last year, citing glaring legal flaws that raised “curious” questions of noncompliance, according to the trial magistrate.
The magistrate upheld an objection raised by defence lawyers Ahmednassir Abdullahi, Edward Oonge, and Sadia Carren to the admission of evidence, citing legal flaws in the acquisition, retention, and presentation of case documents and agreeing the prosecution “failed to follow legal rules.”
The lawyers claimed that the documents were obtained “illegally” through a flawed Mutual Legal Assistance (MLA) procedure and would be detrimental to their clients.
Abdulahi also questioned the authenticity of the evidence documents presented in court by the prosecution, claiming that proper procedures were not followed when obtaining them from overseas.
Magistrate Kombo questioned why proper channels for remitting evidence from Switzerland were not used to secure the documents.
“It is even more curious that it took three years to obtain the aforementioned documents, which are public documents,” he said.
The court ruled that the evidence documents lacked integrity because they were sent from Switzerland and stayed in the custody of Dr Mark Henzeline, who shared them with staff members, one Sonia, and his secretary for three years before being sent to Kenya.
The magistrate also stated that the prosecution failed to follow the prescribed procedures for certification in the presentation of secondary evidence.
Rashmi and Deepak Kamani, businessmen, are charged in this case, along with former government officials Magari, Onyonka, and Mwangi.
They have denied conspiracy to defraud the government via the Anglo Leasing contract.
The case revolves around a government project to modernize the police force by increasing security surveillance.
The trial of the businessmen and former government officials will now proceed to the lower court for further hearings, with the investigation officer expected to complete his testimony in the matter.
