• Both parties will have the opportunity to cross-examine the witness.
• Kidero and eight others are charged with conspiring to commit fraud, leading to the loss of Sh213,327,300 at the county government
A Nairobi court has declined to bar a witness from giving evidence beyond the statement he had given in the Sh213 million graft case against former Governor Evans Kidero.
Anti-corruption magistrate Douglas Ogoti ruled that the court cannot restrict a witness from testifying under oath.
The issue arose immediately after assistant DPP Joseph Riungu Gitonga yesterday asked Edward Gichana, the head of audit and risk management, to take the court through the events that transpired regarding the case. Gichana is the second prosecution witness.
Gichana told the court that sometime in 2017, acting county secretary Robert Ayisi called him regarding some documents being sought by the Ethics and Anti-Corruption Commission.
“He showed me a letter from the commission. The letter was requesting for a number of documents among them vouchers made to Ngurumani Traders Ltd. But I advised him to liaise with Treasury to get the documents,” the court heard.
The defence objected to the line of questioning soon after Gitonga asked the witness to inform the court what transpired after his advice to Ayisi.
Senior counsel James Orengo said the witness cannot testify on a matter that does not comply with a section of the law that says that every person has the right to a fair trial and a right to be informed in advance of evidence the prosecution intends to rely on and to have reasonable access to that evidence.
Orengo said the defence was not challenging the DPP's authority to prosecute, but the "draconian manner in which they were trying to bring evidence that's not captured in the witness statement".
He suggested that the DPP should ask for an adjournment and prepare a different statement.
But Gitonga objected. “A statement is a summary of the events of the particular acts that took place. We cannot be limited from adducing evidence on what transpired," he responded.
He said the witness is giving the evidence under oath and therefore, the prosecution cannot be curtailed to stick to what is in the statement.
Gichana has since January 2014 been the head of county internal audit.
He told the court that a voucher/payment of Sh9.4 million to Ngurumani traders was properly done. “The documents appeared to have met the procedure as it had a certificate showing whatever was supplied was inspected. In my view, the transaction was proper.”
Kidero and eight others are charged with conspiring to commit fraud, leading to the loss of Sh213,327,300 at the county government between January 16, 2014, and January 25, 2016. They allegedly authorised payments to Ngurumani and Lodwar Wholesalers Ltd for services not rendered.
His co-accused are former county secretary Lilian Ndegwa, chief finance officer Jimmy Mutuku Kiamba and finance and planning minister Gregory Mwakanongo.
The others are head of accounting Stephen Ogago Osiro, acting chief finance officer Luke Gatimu and acting head of treasury Maurice Ochieng Okere.