- The Kamani’s argue that the MLA process commenced on by the state was not through diplomatic channels.
- They say former AG Githu Muigai and Amos Wako did not produce any letter evidencing that MLA from Switzerland was obtained through diplomatic channels.
Image: FILE
Most of the evidence obtained from Swiss authorities to pin down the Kamani family and seven others in the Sh3.5 billion Anglo-leasing scandal has been rejected by an anti-corruption court.
In his ruling, anti-corruption magistrate Felix Kombo said a lot of evidence sought to be admitted was obtained through a mutual legal assistance request by Kenya to the Swiss confederation, failed the test of integrity.
“Its value may have been degraded from tampering, as a result of an MLA process that was mishandled,” he said.
These documents, the court found were not certified to confirm they are a true copy of the original documents. Payment vouchers generated within the office of the President are among the documents excluded.
Part of the evidence obtained and used in the Anglo leasing trial was obtained through two requests for Mutual legal assistance to the United Kingdom and the Swiss Confederation.
Both requests were made by the Director of the then Kenya Anti-Corruption Commission justice Aaron Ringera in 2007 and 2008 respectively.
The defence, led by Lawyer Ahmednasir Abdullahi and Edward Oonge, objected to the production of the documents on the grounds that there was a "break of the chain of custody".
They doubted how the evidence was preserved and as a result fought for their exclusion, saying it would be prejudicial to use them against the accused persons.
The state, on the other hand, went to greater lengths to show the movement of materials from the Swiss and British authorities to the point when they were received by or on behalf of Kenyan authorities.
The state, in demonstrating there was no break in the chain of custody, said that in relation to the MLA request to the Swiss confederation, the material obtained was received by La Live Attorneys, Geneve and Marc Henzelin through a power of attorney.
He also transmitted them to the then AG of Kenya following a request on February 23, 2015.
But Kombo yesterday said the MLA requests to the Swiss authorities were not properly handled to the extent that the then KACC allowed a joint venture agreement with Marc Henzelin. This function according to the court belongs to the competent authority.
The court concluded that the material received by Marc of la live Attorneys Geneve, on behalf of the attorney general of Kenya through the power of attorney, was not properly preserved while in the custody of Marc and La Live attorneys, to ensure their integrity in the trial.
“The decision by the Attorney General to adopt a method of transmission to a third party private citizen through the power of attorney while Kenya had a diplomatic office and relations with the Swiss confederation is curious,” Kombo said.
The court said issues arose on the manner in which the request to the Swiss confederation was handled by KACC.
“It would appear that KACC had in effect co-opted Marc as a co-investigator in the matter. How else would his involvement in drawing the letters of the request be explained? He referred to the whole set-up as a ‘joint venture’ which is shocking!” the ruling read.
The defence had argued that the proper method of transmitting evidence obtained through the MLA process should have been via the diplomatic channel to the Central Authority, in this case being the office of the AG and not through a ‘private’ foreign citizen appointed by Power of Attorney.
It was contended that the AG could neither delegate his powers to KACC nor could he so delegate to Marc of La Live Attorney Geneve, through his own Power signed in July 2008.
But in relation to the documents obtained from the UK government, three of them were allowed and will be sued during the trial.
“I also find that the material obtained in the Kenyan MLA request to the United Kingdom are not shown to have been the subject of any violation relating to any legal or other aspects of the MLA process,” he said.
In the case, Rashmi and Deepak Kamani’s alongside late David Mwiraria, former Permanent Secretaries David Mwangi and Joseph Magari, David Onyonka, Sound Day Corporation and Apex Finance are accused of committing an economic crime.
It is alleged that between October 30, 2003, and April 14, 2004, in Nairobi, conspired with others to engage in a scheme to defraud the government of Kenyan Sh3. 5 billion.
The deal was crafted through a suppliers credit contract agreement for the modernisation of the Police Security Equipment and Accessories Project.
(Edited by Bilha Makokha)