• Sonko says the EACC was required to notify him that it intended to look at specific bank accounts, which it did not do.
• Wants all charges quashed as evidence was obtained illegally and prosecution cannot stand.
Image: COURTESY
Nairobi Governor Mike Sonko claims the evidence being relied on by the Director of Public Prosecutions in a Sh357 graft case was obtained illegally.
He says he was not notified in advance of the intention to investigate his bank accounts.
Hence, Sonko wants the court to quash all charges leveled against him last year and the charges recently amended by the DPP.
The DPP presented two charge sheets against Sonko last year. In the first file, he was accused of embezzling Sh24.1 million county funds.
In the second file, he faces charges of economic crimes, abuse of office, unlawful acquisition of property and irregular payments that saw the county lose Sh357 million.
He has pleaded not guilty.
The charges mostly involve irregular tenders for garbage collection and disposal.
He was later released on a cash bail of Sh15 million and barred from accessing his office. The DPP has since served Sonko with an amended charge sheet dated 27 January 27. He is yet to plead to the fresh charges.
Sonko in his fresh application says the charges against him are based on evidence from investigations conducted by the Ethics and Anti-Corruption Commission into his bank accounts.
A charge is the basis of a criminal case and if it is found to be based on illegally obtained evidence, then the prosecution cannot stand.Nairobi Governor Mike Sonko
He says the commission violated his right to be notified of the intention to investigate his bank accounts. He claims the evidence obtained during the investigations into his bank accounts by the commission without following due process violated his right to privacy.
“Article 50 (4) of the Constitution provides that evidence obtained in a manner that violates any right shall be excluded if the admission of that evidence would render the trial unfair or would be detrimental to the administration of justice,” his document reads.
As a result, he wants the DPP stopped from prosecuting, continuing with prosecution or instituting criminal prosecution against him based on illegally obtained evidence from unlawful investigations of his bank accounts.
“A charge is the basis of a criminal case and if it is found to be based on illegally obtained evidence, then the prosecution cannot stand,” Sonko says.
According to the court documents, the EACC issued notices on January 28 this year to a number of banks to provide information and documents. Sonko was copied in.
The banks are Kenya Commercial Bank, Cooperative Bank of Kenya, First Community Bank Limited, Diamond Trust Bank Kenya and Equity Bank of Kenya.
The notices cover bank statements already in the hands of the commission on September 3 last year when Sonko recorded a statement at the offices of the commission.
The notices issued by the commission to the banks are said to assist the commission in its investigations in corruption allegations at the Nairobi county government offices for the period between January 1, 2012, and December 31 last year.
But Sonko says the fresh notices are irregular, unlawful and illegal because the commission has the information that it is purporting to get from the banks.
“The officers already had the information they are purporting to get from the banks in September last year when they interviewed me. The commission and the DPP used the information from the bank statements to prefer charges against me in the graft case and the amended charges,” he says.
Sonko claims that the commission has realised it obtained information from the various banks illegally, without his consent, knowledge or involvement and they are now issuing new notices after the fact to try and cover up their error of omission.
“The EACC is using the notices to try and cure an already existing illegality. Going by the law, the officers of the commission are obligated to issue me with a notice indicating that they wish to investigate my bank accounts before obtaining warrants to investigate them,” the governor says.
At the same time, magistrate Douglas Ogoti was to rule on Wednesday whether it will release Sonko’s passport. The DPP has opposed its release but Sonko urged the court to have it released as he has been invited to attend the World Urban Forum February 8 to 13 in the United Arab Emirates. Both his regular and diplomatic passports were deposited in court as a condition of bail.
(Edited by V. Graham)