Former Nairobi Governor Evans Kidero at Milimani Law Court in Nairobi on August 9,2018, where he faced graft-related charges.
A court has blocked the Ethics and Anti-Corruption Commission (EACC) from tabling bank documents as evidence linking former Nairobi Governor Evans Kidero and 12 other people to the loss of Sh58 million at City Hall ten years ago.
The anti-graft agency wanted to produce the bank statements through its investigating officer, who is one of the witnesses in the asset recovery case filed in 2021. The case involves funds siphoned from the county government in January 2014.
EACC intended to use the bank statements to demonstrate to the court the movement of cash from the county government accounts, to a Nairobi-based law firm (Wachira, Mburu, Mwangi & Company Advocates) and later to the beneficiaries.
But Justice Lucy Njuguna has upheld an objection raised by Dr Kidero's lawyer, Julie Soweto, stating that the EACC investigator was not a competent witness to table the evidence.
The court heard that EACC had not complied with the law on the production of bank documents.
Justice Lucy Njuguna.
Justice Njuguna agreed and ruled that the investigator lacked the capacity to produce the documents and their accompanying certificate of electronic evidence, showing how the bank statements were prepared. This is because the investigator was not the maker of the document.
"The requirement for a certificate is mandatory as it is crucial for the authentication not only of the contents of the documents sought to be produced but also its integrity. This certificate can only be produced by the maker as he/she is the only witness who can attest to the requirements under Section 106B(4) of the Evidence Act," said Justice Njuguna.
She continued: "The investigating officer through whom the EACC sought to produce the certificate can therefore not be a competent witness to produce the same as she was not the maker of the certificate and cannot be cross-examined on it".
Embakasi Central MP John Ndirangu.
In the asset recovery case, Dr Kidero was sued alongside former Embakasi Central MP John Ndirangu, former councillor Paul Mutunga Mutungi, Aduma Joshua Owour, former City County Government chief of staff George Wainaina Njogu, John Ngari Wainaina and Cups Limited.
His other co-defendants include former City Hall accountants Ng'ang'a Mungai alias Ng'ang'alito, Ekaya Alumasi alias Ghonzour, Philomena Kavinya, James Mimi Mbugua, Elizabeth Wanjiru Nderitu, Alice Njeri Mundia and Hannah Muthoni.
EACC is seeking to recover various sums of money and property from them.
They are also facing criminal charges in a separate case related to economic crimes, abuse of abuse, unlawful acquisition of public property and money laundering. They have since denied the accusations and are out on a bond of Sh5 million each.
Investigations started in August 2017 regarding the payment of the Sh58 million to the law firm -Wachira, Mburu, Mwangi, and Company Advocates -culminating in the arrest and prosecution of Dr Kidero and other defendants.
According to the charge sheet, they committed the offences between January 6 and 16, 2014 by conspiring to defraud the County Government Sh58 million.
Allowing the objection on the production of the bank statements in the assets recovery suit, the court held that the EACC also failed to file an affidavit given by a bank officer who performed the examination on the mode of proof of entries of bank books.
EACC's legal team had asked the court to reject the objection since the investigator had laid the basis, on the circumstances under which the bank statements were obtained.
The witness said they were obtained through "warrants to obtain the statements".
The court heard that it was after the warrants were served on the bank that it furnished the EACC with the statements and the accompanying certificate of electronic evidence, certifying that the statements were a true reflection of the financial records.
In addition, EACC argued that bank officers are not compellable witnesses.
EACC further stated that it was not disputed the transactions took place but the issue before the court was the purpose for which the money was being paid.
The said certificate of electronic evidence dated November 8, 2011, was prepared by Mr Jared Mwangi and was filed among the documents EACC intended to rely on to prove its claim.
