A court halted the production of electronic evidence obtained from Swiss authorities relating to the Sh7.1 billion fraud, dealing a major blow to the prosecution in one of the Anglo Leasing cases.

The documentary evidence did not meet the admissibility threshold, according to Justice Esther Maina, because the prosecution failed to produce a certificate indicating how the evidence was obtained and processed, as required by law.

She denied a request by Principal Prosecution Counsel Eva Kanyuira for a rehearing of the court's decision to throw out evidence that Director of Public Prosecutions Noordin Haji intended to use to convict the suspects, including businessmen Deepak Kamani and his brother Rashmi Kamani.

Former permanent secretaries Dave Mwangi (Security) and Joseph Magari (Finance), as well as former Treasury debt management head David Onyonka, are also suspects in the case.

They are accused of conspiring to defraud the government out of €59,688,250 (Sh7,111,402,461) via one of the Anglo Leasing contracts referred to as the Kenya E-cops security project.

The evidence was submitted to the Ethics and Anti-Corruption Commission (EACC) in two sets of documents seven years ago. The first set was on a flash disc, while the second was delivered by courier. Through Mutual Legal Assistance, the evidence was obtained from Swiss authorities (MLA).

Justice Maina upheld the lower court's decision yesterday, saying the trial magistrate was correct in striking out the evidence because the prosecution failed to follow the legal procedure of producing electronic evidence.

In a ruling dated February 18, 2022, Trial Magistrate Martha Mutuku noted that the evidence was in electronic form and was not accompanied by a certificate, as required by the Evidence Act.

Review requested
Dissatisfied with the ruling, the DPP petitioned the High Court for a rehearing, claiming that the magistrate erred in striking out the evidence and that the ruling had prejudiced the case.

"The ruling has far-reaching and negative consequences for the proceedings in the anti-corruption case." "Unless it is revised, it will undermine the administration of justice," Ms Kanyuira told the High Court.

However, Justice Maina ruled that the prosecution was required to follow the rules for producing evidence.

"Evidence laws must apply even to evidence obtained (from other countries) through Mutual Legal Assistance." "The evidence should have been accompanied by a certificate," Justice Maina stated.

Sections 105 and 106B of the Evidence Act, which require the maker of electronic evidence to produce a certificate demonstrating how the evidence was processed, served as the foundation for her decision.

"In the absence of evidence of compliance with sections 105 and 106B of the Evidence Act, it means the documents did not meet the admissibility test," the judge explained.

She noticed that some of the rejected documents were public and were not certified.

"The law on admissibility must be followed. Ignoring the mandatory provision of the Evidence Act in the admissibility of evidence will be an infringement of the accused persons' rights, so the request for revision is unjustified and thus dismissed," Justice Maina said.

The magistrate upheld an objection raised by defence lawyers Ahmednasir Abdullahi, Edward Oonge, and Sadia Carren to the admission of evidence, citing legal flaws in the acquisition, retention, and presentation of the evidence.

The lawyers also claimed that the documents were obtained "illegally" through a flawed MLA procedure and would be detrimental to their clients. Mr Abdullahi had also questioned the authenticity of the documents presented in court by the prosecution, claiming that proper procedures were not followed in obtaining them.

John Kiilu, the EACC's lead investigating officer in the case, told the court that he planned to use evidence obtained from Swiss authorities to show how the accused conspired to defraud the government of billions of shillings in the alleged supply of police equipment.