• Prosecution barred from using Co-operative Bank statements.
• Magistrate Ogoti says documents were not supplied to the defence but they somehow appeared in court.
The ODPP has been dealt a blow after a court barred it from using evidence obtained from Cooperative Bank in the Sh213 million graft case against former Nairobi Governor Evans Kidero.
Anti-Corruption Court magistrate Douglas Ogoti ruled that since the bank statements have not been formally admitted in court, the prosecution should not be allowed to use them to prove the case. He said the documents were not supplied to the defence but somehow appeared in court.
"The documents were neither disclosed to the DPP nor to the defence. They have also not been formally admitted as evidence and in order to ensure the accused's rights are protected, I hereby bar the prosecution from further referring to the said statements in this case," he said.
"As of now, those documents are only hearsay. The court is left to wonder whether this was an oversight or was a voluntary oversight by the investigating officer who is a lawyer.”
Kidero and his co-accused had 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
The charges against them 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.
They had asked the court to expunge the documents and the entire testimony of one Charity Williams. They argued that the evidence was obtained illegally, hence rendering the trial unfair. The disputed statements are in relation to Cooperative Bank under the name of Nairobi County Government. They detail how money was transferred from City Hall to the bank and finally to Ngurumani Traders — an accused entity in the case.
But senior counsel James Orengo and Philip Nyachoti took issue with Ogoti’s ruling as it did not deal with the consequences arising from the evidence adduced by other witnesses who made reference to the bank statements.
“What happens to evidence that is already on record where the prosecution has referred to the documents you have barred them from using. What of witnesses giving testimony arising from that document,” they posed.
Orengo said they needed time to internalise the ruling and brief their clients to know the way forward.
Charity, the 11th prosecution witness, used to work at Co-operative Bank of Kenya until 24 January last year when she was dismissed. Her testimony was in regard to the transactions that occurred in the bank in relation to the case. The anti-graft agency had requested the bank to supply them with bank statements of Ngurumani Traders. The defence opposed the move.
However, even though Ogoti barred the prosecution from using the bank statements, he declined to expunge Charity’s testimony. He said no sufficient reason was given to warrant such an action.
“No provision of the law was cited to give me the authority to expunge her testimony on oath from the record of the proceedings,” he said.
The other suspects are 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 Okere.