Former Nairobi Governor Evans Kidero has failed in his bid to block the anti-corruption watchdog from tabling bank documents as evidence linking him to loss of Sh58 million at City Hall.
At the same time, the Ethics and Anti-Corruption Commission (EACC) informed the court that Mr Kidero, in his witness statement, admitted receiving Sh14.4 million from Cups Limited, which is one of the companies implicated in the scandal.
Justice Lucy Njuguna rejected Mr Kidero’s application for the court to block the production of bank statements by EACC investigator Mulki Umar.
Ms Umar investigated the accounts and procured evidence linking Mr Kidero and 13 others, including Nyakach MP Aduma Joshua Owuor, to the funds siphoned from the city county government in January 2014.
Nyakach MP Joshua Aduma Owuor in a Nairobi court on July 12, 2019.
The judge ruled that there was no special cause for the court to compel the production of banker’s books by a bank official. The judge noted that Mr Kidero had also admitted receiving a sum of Sh14.4 million.
“Where bank books have been lawfully procured and the chain of command is not broken, there is no prejudice in the production of the same by the investigating officer. In any event, Mr Kidero in his statement has admitted having received the money. He has not disputed any entry in the bank statement that is in issue,” said Justice Njuguna.
The EACC documents include bank account opening forms, bank statements, mandate cards, deposit slips and relevant bankers’ books.
Mr Kidero had argued that the investigating officer was not the maker of the bank statements, hence she was incompetent to produce them in court.
The court heard that though the investigator obtained warrants to investigate Mr Kidero’s bank account, the warrants only allowed her to inspect and get copies. His lawyers said if the EACC wanted to rely on bank statements in prosecuting the case, the same could only be produced by a bank official.
However, Justice Njuguna ruled that the investigating officer was competent to produce the documents.
“The documents sought to be produced are bank statements. The witness was the investigating officer in this case and there is evidence on record that the EACC obtained warrants to investigate bank accounts and the same were furnished to her by the banks. As the investigating officer, it is my considered view that she should be allowed to produce the statements under Section 177(2),” said the judge.
The court had in an earlier ruling blocked the investigator from tabling a certificate of electronic evidence showing how Mr Kidero’s bank documents were processed.
Justice Njuguna clarified that the certificate of electronic evidence could only be produced in court by the person who made it or the person who performed the examination.
“This in my view may be an investigating officer in which case, he can do so through an affidavit sworn by the person who made the certificate. The absence of such an affidavit was the reason why this court allowed the objection in its earlier ruling,” said the judge.
As the investigating officer, the judge said the witness investigated the accounts and she was furnished with the bank slips and the relevant banker’s books. She must have interacted with the documents in the course of the investigations and therefore, she could produce them.
The case was filed in 2021. The 13 other defendants include former councilor Paul Mutunga Mutungi, former Embakasi Central MP John Ndirangu Kariuki, former City County Government chief of staff George Wainaina Njogu, The Cups Limited and John Ngari Wainaina.
Mr Paul Mutunga Mutungi.
Photo credit: Pool
Other co-defendants include the Nyakach MP, former City Hall accountants Hannah Muthoni, Philomena Kavinya, Ng'ang'a Mungai alias Ng'ang'alito, Ekaya Alumasi alias Ghonzour, James Mimi Mbugua, Elizabeth Wanjiru Nderitu and Alice Njeri Mundia.
EACC intends to use the bank statements to demonstrate to court the movement of cash from the County Government accounts, to a City-based law firm (Wachira, Mburu, Mwangi & Company Advocates) and later to the beneficiaries. The hearing of the case continues.
