The Government has lost its bid to have eight Japanese summoned to testify against former Permanent Secretary Thuita Mwangi over the controversial purchase of Kenya embassy property in Tokyo, Japan, for which taxpayers reportedly lost Sh1.7 billion.
Chief Magistrate Doreen Mulekyo said the court lacks the necessary jurisdiction to issue such communication to the Japanese. The Kenyan court, she said, is not mandated to issue the communication to a court of competent jurisdiction in Japan.
"The court lacks the competent authority mandated to seek mutual legal assistance (MLA) under the MLA Act Number 36 of 2011," Ms Mulekyo said in a ruling read by Senior Principal Magistrate Lawrence Mugambi.
Mulekyo said the Director of Public Prosecutions (DPP) had not demonstrated to the court that it was one of the courts envisaged under Section Five of the Evidence by Communication Act of 1859 (UK) to issue such a communication. Through lawyer Paul Muite, Mr Thuita said the DPP's application was flawed and should be thrown out.
"The application is flawed as the court does not have competent authority. The evidence to be obtained would be inadmissible as there is no parity between Kenyan criminal law and procedure and Japanese criminal law and procedure," he said.
The State was seeking mutual legal help in collecting crucial evidence from the Japanese, who had declined to travel to the country to testify against Thuita and two others. The DPP believed the case against Thuita, Antony Mwaniki and Allan Mburu would collapse in the absence of the evidence of witnesses.