'Admissibility issues' stalk scouting of key Anglo Leasing files

"Admissibility issues" are at the centre of the current stand-off over five Anglo Leasing files being scrutinised at the Office of the Director of Public Prosecution.

Sources at the heart of the ongoing review have confirmed to The Standard on Sunday that the prosecutors raised "technical killer points" which the 17 suspects named could employ to defeat a successful prosecution.

On Thursday, Director of Public Prosecutions Keriako Tobiko and Ethics and Anti-Corruption Commission chair Mumo Matemu held a consultative meeting during which the issues were flagged.

"Both sides agreed that the outstanding areas identified must be covered in order to facilitate successful prosecution. Accordingly a joint committee was constituted to speedily and expeditiously address the outstanding areas identified and report back within 30 days," a joint statement issued by Tobiko and Matemu said.

Our investigations reveal that some of the issues relate to admissibility of evidence as a result of mutual legal assistance requests on the Government of Switzerland.

A bulk of evidence was handed over to Kenyan investigators on September 20, 2012 by Swiss Federal Office of the Justice. The evidence included "banking records and other documents" obtained by the Office of the Attorney General."

By the end of the 2011, Office of the Attorney General of Switzerland had agreed on 12 applications for mutual legal assistance from Kenya. In seven instances, the evidence required was given.

In five instances however, the companies concerned contested the Swiss AG's decision in the Federal Criminal Court. However, on August 2, 2012, the court rejected three of the appeals, ruling that the other two were inadmissible.

"Specifically, it held that the requests for the legal assistance had been lawfully submitted to Switzerland by an authority with jurisdiction over the alleged offences," a statement by Spokesman for the Swiss AG, a Jeannette Balmer said.

The companies did not appeal the matter in the federal Supreme Court, setting the stage for the handover. The statement said the September 20, 2012 handover of evidence "concludes Swiss involvement in the mutual legal assistance proceedings surrounding the Anglo-Leasing affair."

Earlier this year, the Swiss Government asked Kenya to return the favour by handing over evidence collected in the course of Anglo Leasing investigations in order to help their (Swiss Government) case against three suspects.

The Swiss Government has successfully identified and frozen several bank accounts in the money laundering case against the three suspects. Swiss authorities have linked the money laundering case to bribery of Kenyan officials in return of award of lucrative Anglo Leasing-type contracts.

In the first phase of Anglo Leasing investigations and prosecution, six people were charged in court. In case No CR 113/25/05 CF ACC 8/04, Sylvester Mwaliko, former PS Home Affairs, Joseph Magari, former PS Treasury, Wilson Sitonik, a former director of ICT Treasury, and David Onyonko, a former head of debt management at Treasury, were charged.

Also interviewed in the investigations for that case were former Attorney General Amos Wako, former Finance Minister David Mwiraria and former Principal Immigration Officer Henry ole Ndiema.

The matter involved the supply and installation of a new passport issuing system for the Department of Immigration, a contract awarded to Anglo Leasing and Finance Ltd.

In the other Anglo Leasing Finance Ltd contract on supply and installation of a  forensic science lab for the CID, former Internal Security PS Zakayo Cheruiyot and former chief finance officer at the OP John Agili were charged.

Prominent persons interviewed over the same included former Finance Minister Chris Okemo, former Post Master General Dan Ameyo, former CID Director Francis Sang, former Head of Civil Service Sally Kosgey, former PS Treasury Mwangazi Mwachofi and former PS Internal Security Dave Mwangi.

"The biggest turning point in the cases this time round is the legal assistance, the convergence of the DPP and EACC to clear the matter once and for all, and the amendments on the law to aid investigations," an investigator told The Standard on Sunday.

The investigator added that "other residual issues" also needed to be cleared to ensure the cases overcome the challenges of the "legal procedure."