The Supreme Court has dismissed a request by former Lugari MP Cyrus Jirongo to give new evidence in a case challenging his criminal trial in relation to fraudulent land transfer and acquisition.
In urging the six-judge bench led by Chief Justice David Maraga to allow his application, Mr Jirongo said the evidence could not have been discovered or adduced earlier because his office file had been stolen.
As a result of the theft, he reached the National Bank of Kenya to retrieve from its archives the payment details of the alleged Sh50 million fraud that happened 28 years ago.
Mr Jirongo told the court that the evidence is credible and had officially been issued by the bank and the Registrar of Companies.
“The evidence totally destroys the very basis for the laying of purported criminal charges against the petitioner. The additional evidence is not voluminous but consists only of five simple letters,” he said.
But the judges ruled that the former presidential candidate failed to show that the additional, fresh evidence could not have been obtained with reasonable diligence for use when the case was at the High Court and the Court of Appeal.
They said that through the application, Mr Jirongo wanted to engage the apex court in ‘gerrymandering and cat games’ in the name of adducing additional evidence.
“This court is convinced that the petitioner, being unsuccessful at the Court of Appeal, is now trying to amend and make corrections to his case,” ruled the bench comprising of CJ Maraga, his deputy Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola.
Mr Jirongo also failed to demonstrate that the evidence was not within his knowledge or could not have been produced at the time of the petition at the lower superior courts.
This was proved by a letter written by the bank dated November 20, 2019 addressed to the Director, Banking Fraud Investigation Unit.
The court also found that details of the letter from the bank were contrary to Mr Jirongo’s averments that he was unable to obtain records of documents as they had been destroyed.
In another letter dated August 2, 2019 the bank had served Mr Jirongo with statement of his account for the period of reference though 27 years had lapsed since the financial transactions were processed.
This, the judges said, was also against Mr Jirongo’s submission that he had been searching for evidence, which by all accounts, was all along in his possession.
The bench found that the bank was able to respond to the Petitioner’s request in a considerably short period of time contrary to assertions made by Mr Jirongo in his submissions. He had said that the bank had taken several months to recover copies of the missing payments made to the Soy Developers Limited, Sammy Boit Arap Kogo and Antoinette Boit.
In the criminal case, it is alleged that Mr Jirongo with intent to defraud induced Post Bank Credit Limited to accept a bank charge for a parcel of land registered in the name of Soy Developers Limited. He later obtained an overdraft of Sh50 million for his company Cyber Projects International.
It is further alleged that he forged a bank cheque and then claimed it was genuine and had been signed by his former business partner, Mr Sammy Kogo. The offences are alleged to have happened in 1992.
The criminal trial has since been suspended pending determination of his appeal at the Supreme Court against ruling of the appellate court delivered on July 19, 2019 that allowed his prosecution.
It was after the appellate Court had rendered its judgment that the politician wrote to the bank on August 2, 2019 seeking to have them provide the information that he sought to introduce as new and fresh evidence at the Apex Court.
“In the judicial review matter instituted by the Petitioner at the High Court, it is not shown that he had presented to the trial Court that he had engaged the bank in retrieving the documents and letters that he now seeks leave to adduce into this Court,” the Supreme judges found.
It was also not shown that during the appeal to the Court of Appeal, Mr Jirongo had sought out the bank to provide the information and documents that he wanted to adduce at the Supreme Court.
“By seeking leave to admit new evidence, which had all along been in his possession going by the facts of the case, the Petitioner would be abusing, not only the discretion of this Court in exercise of its jurisdiction, but also its processes. And seeking rather dubiously and ingeniously to reconstitute his case which had been conclusively determined by the Superior Courts below,” said the judges.
