A Nairobi court Monday struck out several documents obtained from Switzerland for use in the ongoing trial of suspects linked to the Anglo Leasing scandal.
Chief magistrate Felix Kombo struck out the documents obtained more than a decade ago, saying they were not properly preserved before they were transmitted to Kenya.
Some of the documents were obtained through two requests for Mutual Legal Assistance to the United Kingdom and the Swiss Confederation.
Both Requests were made by then Kenya Anti-Corruption Commission director Aaron Ringera between 2007 and 2008.
“In conclusion, it is my finding that so much of the evidence sought to be admitted herein, which was obtained through an MLA Request by the Republic of Kenya to the Swiss Confederation, fails the test of integrity and its value may have been degraded from tampering, as a result of an MLA process that was mishandled,” said Mr Kombo.
The Swiss government said it opened an inquiry against the Kamani’s for money laundering, after receiving the legal assistance request from the defunct Kenya Anti-Corruption Commission in 2008.
The Swiss said the businessmen were suspected to have participated in the formulation of several multi-million dollar contracts that were tainted with irregularities.
security equipment
The contracts were for the supply of security equipment to Kenya Police, immigration security document control system and computerisation of the security system.
Lawyers Ahmednasir Abdullahi and Caren Sadia representing Rashmi and Deepak Kamani had objected to the use of the documents, citing legal flaws in the acquisition, retention and manner of presentation.
They argued that the documents, which were obtained from Switzerland, stayed in a private law firm of Dr Marc Henzeline for three years and who shared them with his staff members before they were sent to Kenya’s Attorney-General.
The court agreed saying, “I also find that the defence has demonstrated that a number of anomalous things happened during the time the material in the custody of Dr Marc Henzelin of La Live Attorneys Geneve, and before their transmission to the Republic of Kenya.”
The magistrate said while it can be said at that point of transmission had been completed, and technically the materials were in “Kenyan hands”, a serious issue concerning the state of preservation and integrity of the materials at the time, arises.
“Based on the foregoing, I have come to the conclusion that the material received by Dr Marc Henzelin of La Live Attorneys Geneve, on behalf of the Attorney-General of the Republic of Kenya, via power of attorney, were not, while in the custody of Dr Marc Henzelin and La Live Attorneys, properly preserved so as to ensure their integrity and evidentiary value in this trial,” he said.
The court, however, allowed the use of several documents obtained from the UK saying they are admissible as secondary evidence under Section 68(2)(c) of the Evidence Act.
In the case, the Kamanis are charged alongside former government officials Joseph Magari, Joseph Onyonka and Dave Mwangi.
They have denied charges of conspiracy to defraud the government through the Anglo Leasing contracts.
The case was adjourned to October 8.