A court will decide whether a tax-evasion expert witness will be expunged from the graft case against former Nairobi Governor Evans Kidero.
The witness from the Kenya Revenue Authority was to testify in the Sh213 million graft case involving Kidero and nine others.
The ruling will be on September 2.
The defence contested a letter dated August 1, 2016, from the Ethics and Anti-Corruption Commission instructing the tax authority to look into some of the accused persons' income tax accounts.
Lawyer Paul Ng’arwa said that in spite of the good intentions of the witness, he was acting illegally and should be stood down.
It instead wants the commissioner of KRA called to testify.
“We are contesting that letter of August because the EACC took it upon itself to coerce the commissioner of taxes to inspect these accounts," he said.
"Unless we get that letter we will be prejudiced to proceed with the examination of this witness.”
Ng'arwa termed the letter "an instrument of witch-hunt".
He said the commission has no right under the Tax Procedure Act to do or tell KRA’s commissioner to look into the accused persons' income tax accounts or failure of payment of tax.
“As a result of the irregularities, I'm praying to this court to order the state to take immediate action to produce the said letter which I call an instrument of a witch-hunt. We wish to know the full details of the letter,” he said.
Assistant DPP opposed the application to have the testimony of the witness expunged.
“He should be allowed to proceed for reasons that the witness before the court is properly adducing evidence that arose out of the investigations undertaken," he said.
"The submission that the letter dated August 1, 2016, which triggered KRA to act is witch-hunt has not been demonstrated."
He said the commission is an independent body and no basis has been laid before the court to demonstrate the DPP made a decision to charge in an intended witch-hunt.
“Submission that the commission investigated this through a witch-hunt is unjustifiable. We've not been involved in how the witness was involved and what role he played,” he said.
In his evidence, witness Abdul Robow told the court his duty at KRA was to carry out investigations into allegations of tax evasion.
He added that on August 4, 2016, he was allocated a case regarding Ngurumani traders, one of the companies charged in the graft case.
The EACC requested him to probe the firm and get its tax assessment.
At the same time, the court declined to expunge the evidence of another witness from NIC Bank.
Kidero and Stephen Osiro, an accused person in the case, had objected to the production of bank documents, saying they were obtained illegally.
Their lawyers cited a recent decision by the Court of Appeal, which said evidence obtained from an individual’s accounts without notifying them, cannot be used as evidence.
Edited by N. Mbugua
