• Justice John Onyiego said there is merit in the Director of Public Prosecution’s application to warrant the court to allow him to present more witnesses.
• The accused were charged in 2015 with conspiracy to defraud the government.
Image: FILE
The High Court yesterday allowed DPP Noordin Haji to call additional witnesses in the Sh10 billion Anglo-Leasing case against the Kamani brothers and three others.
Justice John Onyiego said there is merit in the Director of Public Prosecution’s application to warrant the court to allow him to present more witnesses.
In the case, businessman Deepak Kamani, his brother Rashmi Kamani, former permanent secretaries Dave Mwangi and Joseph Magari, and former senior Treasury employee David Onyonka were charged in 2015 with conspiracy to defraud the government.
The DPP, through Nicholas Mutuku, moved to the court to appeal against a decision by a lower court to deny him the opportunity to introduce new evidence and present more witnesses.
Justice Onyiego directed the DPP to call all the witnesses and serve the defence with copies of his statements before a hearing date to be set by the trial court today.
Earlier, the DPP had argued that the decision by chief magistrate Martha Mutuku would have adverse and far-reaching effects on criminal cases his office is prosecuting. Haji had also sought the suspension of the trial of businessman Deepak Kamani, his brother Rashmi Kamani, former permanent secretaries Dave Mwangi and Joseph Magari, and former senior treasury employee David Onyonka until he is allowed to call more witnesses.
The prosecutor had said the magistrate’s ruling had the effect of unlawfully blocking crucial evidence being tendered by the prosecution through the intended witnesses. "This will have grave ramifications not only in this case but other criminal prosecutions we are undertaking,” Nicholas said.
He had told the magistrate’s court they wanted to introduce four fresh witnesses before resting their case, but lawyers for the accused persons objected on grounds the move would delay the case that has dragged on for five years.
The magistrate agreed with the defence, stating that the intention to call new witnesses was an afterthought and went against the accused persons' right to a fair trial. She said the prosecution did not present a convincing explanation of why they waited until the tail-end of the case to produce new evidence. She directed that only the investigating officer be allowed to testify.
But the DPP argued that they wanted to protect public funds by proving their case beyond any reasonable doubt. “It is unfair because if the investigating officer testifies and the prosecution closes its case, the intended crucial evidence would be locked out, thereby resulting in a miscarriage of justice,” Nicholas said.
He stated that the magistrate made an error in ruling that the accused persons would be prejudiced through the introduction of new evidence, yet their lawyers would have a chance to cross-examine the witnesses on anything they produce in court. The prosecutor said the defence lawyers should have asked for more time to go through the new evidence.