THE high court has rejected a request by the DPP to stop the production of a document entitled “Report on Anglo-leasing Investigations” which the prosecution wanted expunged from the proceedings.
The documents are EACC memos that seem to suggest that there was insufficient evidence to bring the Anglo-leasing cases to court and the prosecution said their case will be prejudiced if they are allowed and admitted as evidence.
In a ruling justice Hedwig Ong’udi frowned against the application stating that it was “not the duty of the high court to micromanage lower courts.”
The issue sprung from cross examination of a prosecution witness Godfrey Rukaria by the defence at a magistrate’s court where the Anglo-leasing case was proceeding before it was adjourned on August 23 2018 to allow the prosecution lodge its objection for review at the high court, being dissatisfied by an order by the trial magistrate that the document be relied on to cross examine the witness.
Senior Principal Magistrate Martha Mutuku had also disallowed an objection raised by the prosecution against the another document , titled “Report on Five Investigation files returned by the Director of Public Prosecution with issues to cover” that the defence sought to heavily rely on in its cross examination.
Took a swipe
Justice On’gudi took a swipe at the casual manner in which the prosecution had filled its application through a letter dated October 18 2018.“The DPP only did the letter for review on October 18 2018, filed it late October 19 2018(Friday) afternoon. I was in the office up-to 4.00pm on October 19 2018 and never saw the file, meaning it was filed after 4.00pm…the file was placed before me on October 22 2018 at 8.30am just before I went to court at 9.00am, yet the DPP knew all along that the hearing was to continue on October 23 2018,” the judge said.
The case had been scheduled to resume on October 23 2018 after the prosecution sought an adjournment on August 23 2018 to lodge a review against the lower courts order that had permitted the use of the two documents as evidence.
“I am pointing this out to show how Mr (Nicholas)Mutuku of the (ODPP) has handled this application so casually and yet comes before the high court under extreme certificate of urgency,” the judge scoffed.
Stay of proceedings
Mutuku had sought for a stay of proceedings on grounds that the re-examination of the witness would not cure the prejudice to be occasioned by the cross examination of the witness on the documents in question.
He had told the high court that the prosecution was highly prejudiced and aggrieved by the decision of te subordinate court more so the order to permit the defence to cross examine the witness on the documents.
However the judge dismissed the argument and stated that “it is the trial court to decide at the final end what is admissible or not…”
She said the Anglo-leasing trial was going on and that the high court will not be dragged into “micro-managing the lower courts on how to conduct its hearings, what to admit and not admit.
I have in brief not found any errors, illegality impropriety on the face of the record to make me interfere with the proceedings,’ she concluded.
Not about documents
The judge has directed parties to prepare themselves and have the matter finalised as soon as possible.
In the application, the prosecution had hinted that reliance on the same documents had been rejected earlier when the defence, in a judicial review, fought their prosecution at the high court
However, justice Ong’udi observed that the review that Justice George Odunga heard was not about what documents to be admitted or not as alluded to by Mutuku.
“I have indeed called for the lower court record and examined it…” she said, adding that she had equally analysed the judicial review proceedings. “I have noted that the case was not about what documents to be admitted or not admitted,” she ruled.