ALTERED documents without evidence of what happened to original exhibits maybe prejudicial to a fair trial, defence lawyers have objected.
This “adulteration,” the trial court heard runs against the rule of evidence concerning public documents and the subsequent presentation in court proceedings.
The court was told a clear chain of custody must be established from the point of collection to the final presentation in court and that without the evidence of what happened to the exhibits the trial would be prejudicial.
SC Ahmednassir Abdullahi cited the rules of evidence that deal with documents as he raised an objection against the testimony of a former investigator with EACC George Makembo.
“Not every officer can produce public documents,” the lawyer said.
Makembo had sought to produce certain documents including promissory notes, correspondences between various government offices and supplies agreement among others.
He was the investigating officer but retired seven years ago, before the probe was finalised.
The lawyer stated that the documents can only be marked by the former investigator, now a businessman, “for production by the EACC officer who had the latest chain of custody.”
The rules of evidence require that the chain of custody be well established to ensure that no documents is altered to suit the interest of the prosecution.
During the proceedings it emerge that the promissory notes had been altered from the time Makembo handled them.
He confirmed that he handled them while they had no markings, which they now have and its a bone of contention for the prosecution to state at what point they were marked and by who.
Makembo also confirmed that he relied of copies of letters to file his findings of the Anglo-leasing probe.
Lawyers are demanding that those who handled the documents be called to testify and confirm if indeed the documents can be relied on for a fair trial.
They said exhibits that have been altered, or rather , adulterated, may be prejudicial.
SC Ahmednassir submitted that documents from the OP or Treasury are public documents and there must be a certification from a PS that shows a document is authentic for admissibility.
He said the PS then becomes the proper person to produce the document as the legal custodian.
“This businessman who left EACC seven years ago is not the proper custodian,” he said.
The Senior Counsel submitted that the prosecution documents “are not admissible in light of the provision of sections of the evidence Act.”
Prosecutor Nicholas Mutuku asked for time to respond to the objection.
The court will give a ruling on April 11 2019, a day after the prosecution files its response.