Anti-Corruption Court magistrate Douglas Ogoti has struck out an affidavit by an investigator from the EACC against former Nairobi Governor Evans Kidero and nine others in a Sh213 graft case.
Ogoti, in a brief ruling, said no party is allowed to introduce new evidence without the knowledge of the court. He said he had made it clear that notice be given before new evidence is introduced.
"Natural justice demands that sufficient notice be given to parties where their rights are bound to be affected. EACC investigator Mulki Umar's affidavit is not properly on record. It is against all tenets of the law and the same is struck out,” he said.
The affidavit Umar indicated the reasons why the Ethics and Anti-Corruption Commission chose to apply to use one Lillian Kioko as a prosecution witness in place of Charity William.
Umar says in the documents the commission in gathering evidence recorded the statement of William from the Co-operative Bank of Kenya, to testify regarding the transactions that occurred in the bank in relation to the case.
But on 24 January last year, William ceased to be an employee of the bank and since she was dismissed, the EACC has not been able to trace her.
The affidavit says that the evidence that would have been produced by William is the property of the bank in which Kioko is an employee.
Also attached was a letter from Co-operative Bank dated July 12, addressed to the commission confirmed that William ceased to be an employee of the bank in January last year.
“We wish to confirm that Kioko who is our employee and currently the branch manager City Hall branch replaces Charity William as a witness in the ongoing case,”
Lawyers James Orengo and Philip Nyachoti ,acting for Kidero and Jimmy Kiamba, respectively, told court they had not been served with the impugned affidavit and it shouldn’t be allowed unless the prosecution make a formal application to capture all issues arising in respect to the witness.
But assistant DPP Gitongo Irungu told the court that the affidavit was simply laying basis as to why Kioko was in the dock following circumstances that came up beyond their control.
“What transpired last time is that the witness was demonstrating to court as to why she is in the dock not by virtue of her name but by virtue of the office she holds,” he said.
Ogoti, after striking out the affidavit, eventually allowed the DPP to make a formal application.
In the case, Kidero and the others are accused of conspiring to commit fraud, leading to the loss of Sh213,327,300 at the county government between January 16, 2014 and January 25, 2016.
They allegedly authorised payments to Ngurumani and Lodwar Wholesalers Ltd for services not rendered.
