• Kidero says the law provides that for one to obtain bank statements a court order must be obtained.
• Lawyer Ojienda says the right to privacy was violated and due process of the law not followed.
Former Nairobi Governor Evans Kidero and nine others have claimed that part of the evidence in the Sh213 million graft case was obtained illegally.
Kidero has denied charges of corruption and economic crime, including conspiracy to commit an offence of corruption, abuse of office, fraudulent acquisition of public property, dealing with suspect property, and unlawful failure to pay tax to a public body.
He was charged alongside former county secretary Lilian Ndegwa, former chief finance officer Jimmy Kiamba, former Finance and Planning executive Gregory Mwakanongo, former acting chief finance officer Luke Mugo and former acting head of Treasury Maurice Ochieng Okere.
The charges state that they conspired to commit fraud, which led to the loss of Sh213,327,300 at the county government between January 16, 2014, and January 25, 2016.
Yesterday, Kidero and his co-accused told trial magistrate Douglas Ogoti that bank statements being used by the prosecution as evidence is tainted and renders the trial unfair.
The accused persons want the court to expunge the entire testimony and witness statement of one Charity William. Charity, the eleventh prosecution witness, used to work at the Co-operative Bank of Kenya until January 24 last year when she was dismissed.
Charity’s testimony was in regard to the transactions that occurred in the bank in relation to the case. The Ethics and Anti-Corruption Commission had requested the bank to supply them with statements of Ngurumani Traders (an accused entity in the case). Yesterday, the defence opposed the evidence on grounds it was obtained without a court order.
Kidero, through lawyer Tom Ojienda, told the court the law provides that a court order be obtained before bank statements can be given.
Ojienda and lawyer Julie Soweto likened Kidero’s case to that of Deputy Chief Justice Philomena Mwilu, whose graft charges were quashed on account of the evidence having been obtained illegally.
Ojienda said that in the Sh213 graft case, the right to privacy has been violated and due process of the law has not been followed.
“The prosecution acted outside of what the law has said by obtaining the bank statements without a court warrant. It would be prejudicial for the court to allow such. The only remedy that’s available is evidence and testimony of Charity to be expunged,” he said.
Ojienda said Charity’s evidence is inadmissible and the court should not entertain it. "It’s apparent that the witness, in her testimony, admitted she did not have any form of authority to produce the statement that is purported to have been sneaked to court and is now part of the record. She does not even know where the statements came from."
He submitted that the statements the prosecution chose to rely on are not what they had supplied them with but are rather a new set of documents dated April 19, 2016. The defence accused the prosecution of trying to introduce new evidence through the backdoor.
“This is an ambush by the prosecution. We have been deliberately misled. They are playing dirty by attempting to sneak in new evidence. The court should note that where there is no exchange of documents court is enjoined to act in a manner that preserves fair trial,” said the defence team.
The prosecution is to make its submissions today.
(Edited by F'Orieny)