It was a big win for the Director of Public Prosecutions (DPP) Noordin Haji after the Anti-Corruption Court ruled part of the evidence in the Sh3.5 billion Anglo Leasing case obtained from Swiss authorities meets the integrity test.

Justice Esther Maina yesterday overturned a 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 application noting that integrity of the evidence of those documents can be challenged through cross-examination,” ruled Maina.

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 are charged alongside former government officials Joseph Magari, Joseph Onyonka and Dave Mwangi.

In October last year, Kombo struck off the hotly contested evidence on grounds of glaring legal anomalies which the trial magistrate observed 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 the prosecution “failed to follow legal rules.”

Proper channels

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 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, under the custody of Dr Mark Henzeline, who shared them with staff members, one Sonia and his secretary for three years, before being transmitted to Kenya.

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 this case, businessman Rashmi and Deepak Kamani are charged alongside former government officials Magari, Onyonka, and Mwangi.

They have denied charges of conspiracy to defraud the government through the Anglo Leasing contract.

The case revolves around a government project to the modernisation of the police department by enhancing security surveillance.

The trial against the businessmen and former government officials will now proceed for further hearing at the lower court with the investigation officer expected to complete his evidence in the matter.