Anglo-leasing suspects Chamanlal Kamani, Deepak Kamani, Rashmi Kamani, David Onyonka, Joseph Magari and Dave Mwangi before Anti-corruption court at Milimani Law Courts on Tuesday March 29, 2016.
BY SAM ALFAN
Anglo Leasing case took a new twist after a trial court on Tuesday overruled an attempt to start proceedings in the absence of alleged companies.
Anti-corruption Court Senior principal magistrate Felix Kombo directed that Sound Day Corporation, Apex Finance and one Brian Mills be separated from the ongoing cases in order to allow them move forward.
The other, “untenable,” option he said would be to adjourn the proceedings until such a time as the directors of the company are traced.
Mr Kombo held that it was unlawful to “try accused persons who have not taken plea”.
“The court has no jurisdiction to try an accused person who has not taken plea,” the magistrate ruled, referring to an American, Brian Mills, who has an international warrant of arrest pending against him, and two companies, Sound Day Corporation and Apex Finance Corporation, which allegedly received multiple payoffs for the “phantom” supply of a security systems upgrade for the police in which the government is said to have lost over Sh10.4 billion.
Prosecutor Jacob Ondari had asked the court to enter a plea of not guilty in the absence of the three parties so that the hearing of the case could begin, but lawyers representing other suspects in the case, including businessmen Deepak Kamani, his father Chamanlal Kamani and brother Rashmi Kamani objected, saying the case would be prejudiced since their defence was pegged on the absentees.
“The right to a fair trial cannot be taken away,” the magistrate ruled.
He observed that the warrant of arrest against Mr Mills “remains unexecuted to date while the companies named in the case had no representation in court”.
The magistrate said the defence team had submitted that the case was built around the two companies and thus may suffer prejudice if proceedings commence in their absence.
He said the prosecution was thus left with the option of amending the charges for the case to proceed.
Lawyers Kioko Kilukumi, Fred Ngatia, Paul Nyamodi and Edward Oonge told the trial court that their defence “is built around the two companies as they are the ones alleged to have been awarded the suspicious security contracts” that led to the Anglo Leasing scam.
Magistrate Kombo concurred with lead defense lawyers Fred Ngatia and Kioko Kilukumi that it would be fundamentally wrong if the companies that have been adversely mentioned not part of the proceedings.
He however declined to adjourn the proceedings until the companies are presented in court saying it is not tenable.
In the case, Former Finance Minister David Mwiraria together Chamanal Khamani , his two sons and others are accused for their role in the multi-billion shilling scam on security related contracts in which the Kenyan tax payer lost more than Sh7 billion.
The Kamani’s have been accused of conspiring to commit economic crimes by engaging in a scheme to defraud of government Sh6.6billion through suppliers financing agreement for computerization of security, law and order system and procedure for Kenya Police project code named E-Cops.
They said their clients would be disadvantaged “because of failure by the DPP to execute his functions”.
However, Mr Ondari was categorical that the absence of the three parties could not affect the case of the accused persons before the court.
Mr Ondari asked for time to amend the charge sheet in light of the new development.
DPP was directed to amend the charges against the Kamanis who are charged with five counts of conspiracy to commit an economic crime and fraudulent acquisition of public resources totalling Sh10.4 billion.
“The law requires that all accused persons must appear in court during the hearing of a case of this nature. The presence of the two companies (Sound Day and Apex Finance) in court is vital as it is impossible to proceed with the matter as they are the companies alleged to have been awarded the contracts that led to the accused being charged,” Mr Kilukumi submitted.
When the suspects took plea on March 4 last year, a magistrate issued an international warrant of arrest against two foreign Anglo Leasing suspects, Brian Mills and Bradley Birkenfeld.
The matter will be mentioned on Thursday to confirm whether prosecution has amended the charge sheet as per directed by the court.
