A recommendation that the criminal prosecution of the Anglo-leasing related cases was a sham has returned to haunt proceedings in a Nairobi court.

The prosecution was confronted with a press statement by former AG Amos Wako among other reports of committees comprising EACC sleuths and prosecutors who reviewed the investigations with an understanding that  “before any trial commenced the investigation file(s) which form the basis of such prosecution discloses sufficient admissible evidence and that such file contain no material gaps which would undermine a successful prosecution.”

A drawn out legal showdown ensued between the defence and the prosecution after attempts by the prosecution to bar lawyers from referring the the exculpatory documents were effectively shot down in two rulings to be adjudicated in an appeal before the high court.

The trial court heard that 5 files were returned to cover “certain grey areas” that had been spotted in the investigations of which, defence lawyers say were never addressed to date.

And, that on October 18 2006 the former AG sought to demystify the Anglo-leasing case by communicating to the world his decision on the investigation files.

Successful prosecution

The press statement was pulled out during the proceedings when EACC investigator, Gideon Rukaria was being cross examined, in which the AG said senior prosecutors reviewed the files and had identified a number of material and significant gaps which unless covered a successful prosecution would not be possible.

“There is no evidence from any witness stating positively that there were no provisions made in estimates  of expenditure or that Parliament was not informed of the security contract…” the statement read in court stated and that further that monies paid from the consolidated fund were never approved.

He went on to list a number of inconsistencies and concluded that “foregoing are but an indication of the gaps and deficiencies that need to be addressed…” again, of which lawyers opine were glossed over before the trial(s) began in court.

According to the former AG relevant statements that may have shed further light from Treasury and Clerk of the National assembly were missing.

The trial court was told the prosecution is an abuse of the justice system and that top investigators have all along known “it was a sham and waste of time.”

Stood down

Defence lawyers said the gaps the Ag identified have persisted to this day and that this evidence is being suppressed by the prosecution.

Two other documents that elicited heat were the “Report on the Five files returned by the director of prosecution with issues to cover” and  final one from EACC titled “Report on Anglo-leasing investigations.”

Prosecutor Nicholas Mutuku objected to the cross examination of Rukaria, who was stood down a second time, based on these documents.

Rukaria earlier said that his findings confirmed that the Kamani family is a highly respected family that has been undertaking contracts with the Government of Kenya(GoK) for the last 30 years in the fields of defence and national security and continues to do so.

He said this was mentioned when he approached Swiss  authorities.

Persistent objection

SC Ahmednassir Abdullahi took a jab at the prosecution stating persistent objection by the prosecution to limit cross examination based on the documents was prejudicial.

He said that even the much touted MLA solicited documents will be challenged at a later stage on issues of admissibility since the process was commenced before the MLA Act became operational and that provisions within the Act were not complied with.

“We will be showing that sections of the evidence Act provides for certain procedural mechanisms that evidence can be introduced,” the lawyer said.

The veteran lawyer had earlier successfully prevented Rukaria from discussing the contents of documents he received during investigations an act he said was akin to the prosecution  trying to sneak piecemeal evidence through the backdoor.”

Proceedings have been adjourned to October after the prosecution failed to stay the proceedings on grounds of that the source of the documents had not been disclosed.