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A court has ruled against the anti-graft agency in a case it filed against a former governor and an ex-MP.

 The High Court rejected an attempt by the Ethics and Anti-Corruption Commission (EACC) to introduce fresh evidence in a suit seeking to recover Sh58 million from former Nairobi Governor Evans Kidero and former Embakasi Central MP John Ndirangu Kariuki.

Justice Esther Maina rejected the EACC’s bid to produce a signed audit report on investigations into the money allegedly lost in corrupt dealings during Kidero’s tenure as governor 11 years ago.

“The application to substitute the audit report with one that is signed is dismissed,” Justice Maina ruled.

The EACC, which filed the case in 2021 seeking to recover the money from Kidero and 13 others, had produced a report that was not signed as part of the evidence.

But this year, the agency asked the court to be allowed to produce the signed copy.

Unsigned report

It argued that both the signed and unsigned reports are identical and have been in their custody since 2021, claiming the delay in filing the signed one was not intentional.

Rejecting the EACC request, Justice Maina said the delay in seeking permission to file the signed audit report is inexcusable.

“This is so because counsel concedes that the report has been in the plaintiff’s custody since inception of the suit, and no plausible explanation has been given for its omission, save that it was inadvertent,” she said.

The judge agreed with submissions made by Kidero and the other defendants that the two reports were not the same.

The font, she said, is different, and that the unsigned report does not have certain appendixes. She also considered the fact that one was signed while the other was not.

“The agency’s failure to disclose that the audit report sought to be filed introduces extra appendices that were not included in the filed report is also a demonstration of bad faith,” she said.

Based on this, the judge said she was not persuaded that the application to substitute the audit report should be allowed.

However, Justice Maina allowed the EACC request to introduce six certificates for all electronic evidence concerning various bank account statements presented in court by forensic experts and witnesses who testified in the suit.

“It is my finding that in regard to the certificates, no prejudice shall be occasioned the defendants as they shall have an opportunity to test the veracity of the same during cross-examination,” the judge said.

The EACC filed the case in 2021 against Kidero, Paul Mutungi, John Ndirangu Kariuki, George Wainaina Njogu, Te Cups Limited, John Ngari Wainaina, Aduma Joshua Owuor, Hannah Kariuki, Philomena Nzuki, Ng’ang’a Mungai, Ekaya Alumasi, James Mbugua, Elizabeth Nderitu and Alice Mundia.

The agency is seeking to recover Sh58 million that was allegedly lost in corrupt dealings in the Nairobi County government.

The EACC says Kidero unlawfully acquired Sh14.4 million on January 8, 2014 from Te Cups, money that was part of Sh58 million unlawfully paid by the county to the law firm of Wachira, Mburu Mwangi and Company Advocates.

Former councillor Paul Mutunga Mutungi is accused of receiving Sh5 million and laundering Sh2 million to pay a debt through the law firm of Mwamuye Kimathi and Kimani Company Advocates and that the money was proceeds of crime.