A TRIAL court in Nairobi has rejected a request by the prosecution to introduce additional witnesses and statements at the tail end of the Anglo-leasing case.
While upholding the objection defence lawyers, SC Ahmednassir Abdullahi and Sadia Carren raised on basis of prejudice, a magistrate concurred that such evidence if allowed especially at this stage may indeed be prejudicial and make a mockery of the criminal justice system and the pursuit of fairness in a trial.
Martha Mutuku said the prosecution had not given sufficient reasons to bring in the four new witnesses who were not in the original list supplied to the defence.
The magistrate also took a swipe at the DPP, wondering if investigations were still on going in the case as stated in one of the correspondences concerning the objected introduction of the new evidence four years after the trial began and of which lawyers saw as veiled course to cure a fatal case.
Defence lawyers had accused the DPP of trying to ” mutate” and “panel beat” a fatally incurable case by trying to bring in additional witnesses.
They had submitted that the evidence was “not even a week old” and had been meant to fill in gaps and address inadequacies laid bare during cross examination and by taking advantage of the same to cure the fatality.
Mutuku said accused persons have a right to a fair trial and that all documents and lists of witnesses appertaining to the case be supplied in time, and again that sufficient reasons must be given in case these prerequisites are not met, which in this case was not done.
She said nothing bars the prosecution from introducing evidence before closure of a case, but again this must be balanced against the constitutional rights of suspects to be given sufficient time to prepare.
“A trial is a complicated matter and requires adequate preparation… to call new witnesses at this stage when it is only the investigating officer left to testify would make a mockery of the justice system and it is also an abuse of of the court process if allowed,” Mutuku ruled.
The prosecution had applied to be allowed to call in 4 extra witnesses, a thing the magistrate dismissed as “an afterthought.”
She said it was unfair that the DPP never indicated from the onset that they would be calling additional witnesses to testify and there were letters as late as last month exchanged between the prosecution and the witnesses days before the hearing date.
Forty-five witnesses have so far testified.
The magistrate said the DPP should have anticipated the introduction of additional witnesses and identified the witness and shared the list with the defence in time and not at the tail end of the trial.
“Trials must be heard and concluded at the shortest time possible, it cannot go on infinitely,” Mutuku said.
The magistrate said the move if allowed would undermine sound dispensation of justice and would be tantamount to prejudice against accused persons.
She said no sufficient reasons had been given why the new witness were not identified earlier.
Mutuku was in agreement with the defence lawyers and ruled that the constitutional provision(Bill of Rights) that the DPP had relied on in submissions is in favour of accused persons and does not give leeway to the state in introducing new evidence at the near end of a trial.
“The accused person(s) must know in advance the case to be put against them, failure to which the process becomes prejudicial…the witnesses were never disclosed and this brings a threshold issue,” the magistrate said.
She ruled that the principles of law must be respected in a trial and was categorical that no convincing reason had been given why the witnesses were to be introduced at the end of the trial.
The prosecution will be making an application for a review of the order at the high court.
Equally, the DPP’s request the the matter be stalled for two weeks until the outcome of the proposed review is out was also rejected.
Hearing has been scheduled to continue of September 11 2019.