BY SAM ALFAN.
Director of Public Prosecution Noordin Haji has appealed the decision to reject evidence obtained from Switzerland against suspects implicated in the Anglo Leasing scandal.
The DPP argues in the appeal that trial Magistrate Felix Kombo erred in law by disallowing the evidence obtained from the Swiss Confederation despite having found that the chain of custody was in order.
“The Magistrate erred in law in isolating the issue of integrity over one item of evidence without considering the totality of evidence adduced in the matter, including through witness testimony”, says Haji.
Kombo rejected the evidence in the trial of Deepak Kamani and Rashmi Kamani, who have been charged together with former PSs Dave Mwangi and Richard Onyonka.
DPP Haji wants the high court to review or reverse the order disallowing the evidence on grounds of integrity.
He wants high court to suspend proceedings before trial court to avert a serious miscarriage of justice pending the hearing and determination of this application for revision.
“This Court be pleased to call for and examine the record of the proceedings in the Anti-Corruption Chief Magistrate Court Nairobi at Milimani in Anti-Corruption Case Number ACC No. 2 of 2015 Republic vs David Mwiraria & others, for the purpose of satisfying itself and pronouncing on the correctness, legality and propriety of the findings and orders issued on 4th October 2021 by Hon. Felix Kombo C.M”, urges Prosecution.
According to prosecution, trial magistrate erred in law by rejecting the material obtained pursuant to a power of attorney which he, incidentally found to be proper and valid.
He argues that the magistrate misdirected himself in fact and in law by finding that Prosecution Witness (PW) 26, was “co- opted” as an investigator by KACC by rendering his expertise assistance in drafting the letter of request a factor he erroneously attributed to lack of integrity of the evidentiary material sought to be produced.
Prosecution argue also argue that the Magistrate erred by implying that the length of time in executing Mutual Legal Assistance requests, degraded the integrity of evidence and ignored the totality of evidence placed before him.
The DPP said the magistrate misdirected himself by concluding that the scanning of documents and storing them in electronic media amounted to tampering with the evidence.
He further says the court ignored the testimony of PW26, who said the documents were scanned in his presence.
“The magistrate erred in law and in fact by according undue weight to the description of pagination of the evidence gathered while disregarding the totality of evidence already before court and his own finding that the chain of custody was unbroken”, he adds.
Haji also argues that Magistrate Kombo based his decision on his personal opinion rather than the law.
Through state counsel Steven Githinji, Haji said having found sufficient evidence to warrant prosecution of the seven accused persons, the initial charge sheet was filed on March 4 2015 and amended on March 30, 2016 before the Anti-Corruption Courts, Nairobi at Milimani.
He adds that the trial Court being satisfied that Prosecution had complied with disclosure requirements, set the matter for hearing.
He adds that the matter has proceeded and is at an advanced stage with the prosecution currently leading the evidence of Ignatius Wekesa the Investigating officer.
It is during the testimony of Prosecution Witness (PW) 37, the defense lawyer objected to production of certain documents, among them the evidence obtained from the Swiss Confederation through Mutual Legal Assistance process and on October 4,2021, the trial court upheld the objection by the defense relating to evidence obtained from the Swiss Confederation on the basis that it failed the test of integrity.
Prosecution adds that in relation to the material obtained from the Swiss Confederation, they were legally obtained through mutual legal assistance initiated by a letter of request dated May 6,2008 duly executed by the then Director of Kenya Anti-Corruption Commission (KACC), Rtd. Justice Aaron Ringera to the Federal Office of Justice, Switzerland.
The two powers of attorney were issued to Dr. Marc Henzelin -Prosecution Witness(PW) 26 of La Live Attorneys (Geneva), one signed by Rtd. Justice Aaron Ringera dated February 9,2007 and the other signed by the Attorney General of the Republic of Kenya, Amos Wako dated July 5,2008
“In execution of these powers, Dr. Henzelin (PW 26) received documents in files marked for identification (MFI) in ACC 2 of 2015 files marked as MFI 97, MFI 98 and MFI 121 from various Swiss institutions and delivered them to the Office of the Attorney General of the Republic of Kenya on February 16,2015”, states Githonji in his affidavit.
On February 16, 2015, the Attorney General of the Republic of Kenya forwarded the evidence obtained from Swiss Confederation to the Kenya AntiCorruption Commission (KACC) vide letter dated 16th February 16,2015.
