Anglo Leasing case fails to take off due to fresh hitch

A fresh hitch has hit the decades-old Anglo Leasing case after a trial court on Tuesday overruled an attempt to start proceedings in the absence of alleged key players.

Senior principal magistrate Felix Kombo, presiding at the anti-corruption court in Milimani, held that it was unlawful to “try accused persons who have not taken plea”.

“The court has no jurisdiction to try an accused person who has not taken plea,” the magistrate ruled, referring to an American, Brian Mills, who has an international warrant of arrest pending against him, and two companies, Sound Day Corporation and Apex Finance Corporation, which allegedly received multiple payoffs for the “phantom” supply of a security systems upgrade for the police in which the government is said to have lost over Sh10.4 billion.

Prosecutor Jacob Ondari had asked the court to enter a plea of not guilty in the absence of the three parties so that the hearing of the case could begin, but lawyers representing other suspects in the case, including businessmen Deepak Kamani, his father Chamanlal Kamani and brother Rashmi Kamani objected, saying the case would be prejudiced since their defence was pegged on the absentees.

“The right to [a] fair trail cannot be taken away,” the magistrate ruled.

SUFFER PREJUDICE

He observed that the warrant of arrest against Mr Mills “remains unexecuted to date while the companies named in the case had no representation in court”.

The magistrate said the defence team had submitted that the case was built around the two companies and thus may suffer prejudice if proceedings commence in their absence.

He said the prosecution was thus left with the option of amending the charges for the case to proceed.

Lawyers Kioko Kilukumi, Fred Ngatia, Paul Nyamodi and Edward Oonge told the trial court that their defence “is built around the two companies as they are the ones alleged to have been awarded the suspicious security contracts” that led to the Anglo Leasing scam.

They said their clients would be disadvantaged “because of failure by the DPP to execute his functions”.

However, Mr Ondari was categorical that the absence of the three parties could not affect the case of the accused persons before the court.

Mr Ondari asked for time to amend the charge sheet in light of the new development.

AMEND CHARGES

The magistrate directed the DPP to amend the charges against the Kamanis, who are charged with five counts of conspiracy to commit an economic crime and fraudulent acquisition of public resources totalling Sh10.4 billion.

They are charged alongside former provincial administration permanent secretary Dave Mwangi, former Treasury head of debt management David Onyonka and former finance permanent secretary Joseph Magari.

“The law requires that all accused persons must appear in court during the hearing of a case of this nature. The presence of the two companies (Sound Day and Apex Finance) in court is vital as it is impossible to proceed with the matter as they are the companies alleged to have been awarded the contracts that led to the accused being charged,” Mr Kilukumi submitted.

When the suspects took their pleas on March 4 last year, a magistrate issued an international arrest warrant against two foreign Anglo Leasing suspects, Mr Mills and Bradley Birkenfeld.

PROSECUTION WITNESSES

However, later, the prosecution said after investigations were completed, Mr Birkenfeld jumped ship and had agreed to be a prosecution witness. The arrest warrant against him was forthrightly revoked.

The new charge sheet will not include the two companies' names and Mr Mills' name. New prosecution witnesses will also be listed in the new charge sheet.

On Tuesday, the court set Thursday for a mention for “further directions.”

The matter was scheduled for a hearing on Tuesday and two witnesses were ready to testify.

The state counsel urged the court to use the same measure it used to exempt former finance minister David Mwiraria from the trial and allow the matter to proceed, a bid that the court declined.