Two businessmen facing charges over the Sh10 billion Anglo-Leasing scandal have accused the Director of Public Prosecutions (DPP) of introducing new evidence through the backdoor to fix them.
Deepak Kamani and his brother Rashmi Kamani argued that the introduction of new witnesses was an afterthought after the DPP realised his case was falling apart. They said the new evidence, if allowed, would unfairly compromise their defence.
Through lawyer Ahmednassir Abdullahi, the two submitted that the introduction of new witnesses and evidence was not only an ambush but also an attempt to fill the gap left by the 45 witnesses who had testified.
“The DPP is misguided on his perception that he has an omnibus window to introduce new evidence at any stage of the trial. He is equally misguided that he can do so without giving the accused and the court a justifiable reason,” said Mr Ahmednassir.
The DPP, through his deputy Nicholas Mutuku, appealed against a decision by a magistrate’s court to deny him opportunity to introduce new evidence in the Anglo-Leasing case and got High Court orders suspending the trial until his claim is determined.
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Mr Mutuku argued that the decision would have adverse effects on all criminal cases and make it difficult to prove corruption cases.
He stated that the magistrate made an error in ruling that the accused persons be prejudiced through introduction of new evidence, even when their lawyers would have had a chance to cross-examine the witnesses on anything they produced in court.
The magistrate, in her ruling, had stated that the intention to call new witnesses was an afterthought and against the accused’s right to a fair trial, adding that the office of the DPP did not present a convincing explanation why it waited until the tail end of the case to produce new evidence.
Ahmednassir, in his response to the appeal, defended the trial magistrate Martha Mutuku, arguing that she was right in rejecting DPP’s move to call more witnesses since this was meant to buy time and prolong the case that had taken more than five years now.
The lawyer argued that prosecution did not give an explanation for seeking to introduce new evidence.
“DPP was misguided to believe he has sole discretion to introduce fresh evidence at any stage of the trial, as they wish against the interest of justice when it is the trial court which has a duty and discretion on admissibility of evidence,” he argued.
According to the lawyer, the prosecution approached the magistrate’s court after lying that they had disclosed all evidence, only to come up with four new witnesses after realising the case was a “leaking boat.”
He stated that the office of the DPP could not claim that its right to prosecute had been violated when it was infringing on the rights of the accused by attempting to delay the case.
The Kamani brothers are facing charges of conspiracy to defraud the Government through the multi-billion shilling Anglo-Leasing contracts alongside former Permanent Secretaries Dave Mwangi and Joseph Magari, and former senior treasury employee David Onyonka.
Magari and Onyonka have also opposed the DPP’s push to introduce new evidence, arguing it would be against their expectation that there were only two witnesses remaining.
“The prosecution had indicated that they only had two witnesses and had supplied us with their statements, only to come up with a new application to introduce new evidence. This is being insincere an abuse of prosecutorial powers,” said their lawyer Peter Oonge.
Justice John Onyiego adjourned the hearing to October 3.