• The DPP wanted the court to review the order and allow the exhibits to be used as evidence in the case.
• In response, Sonko’s lawyers opposed the application arguing that the DPP should have filed an appeal and not a review.
Image: FILE
The DPP suffered a major setback on Monday in former Nairobi governor Mike Sonko’s graft case after the High Court declined to review orders of the trial court.
The prosecution had moved to court seeking a review of the orders issued by a magistrate’s court in a ruling by senior principal magistrate Peter Ooko.
In the case before the lower court, Sonko is charged alongside Fredrick Odhiambo, ROG Security, and Anthony Otieno.
In the said impugned ruling, the magistrate declined to admit certain Equity Bank account statements and account opening documents to be used as evidence in the trial.
In his ruling, the magistrate said that the documents lacked certificates required under Section 106B of the Evidence Act cap 80 Laws of Kenya and that they had not been certified or signed by the bank officers.
The DPP wanted the court to review the order and allow the exhibits to be used as evidence in the case.
However, Justice Nixon Sifuna ruled that the improper admissions of an exhibit against the provisions of the Evidence Act, or its improper rejection as in this case is a merit issue hence appropriate for contestation by way of an appeal and not revision.
“I am of the view that the determination of whether should stand the magistrate impugned rejection of the listed nine exits and the question of their admissibility or otherwise is merit-based reserved for appellate jurisdiction rather than revisionary jurisdiction.”
He further ruled that reviewing the orders will interfere with the decisional independence of the subordinate courts and the smooth running of their proceedings and to some extent amount to the arm-twisting of the courts.
In the case, the DPP wanted the high court to review and vary the orders which rejected the nine documents from Equity Bank that had been produced by the prosecution.
They argued that Magistrate Ooko erred in law by finding that the Bank statements which are computer printouts were inadmissible on grounds that they were not certified yet the same were generated as printouts.
In response, Sonko’s lawyers opposed the application arguing that the DPP should have filed an appeal and not a review.
Lawyer Assa Nyakundi said the high court supervisory jurisdiction is distinct from its appellate jurisdiction.