The prosecution was Monday dealt a blow in the trial of former Nairobi Governor Evans Kidero and eight others after it was barred from referring to a statement obtained from Cooperative Bank.
The statement, tabled during the last hearing, showed how money allegedly moved from the county government to the bank and later to Ngurumani Traders and Lodwar Wholesalers.
The two companies are also facing charges of corruptly receiving money from city hall.
Chief magistrate Douglas Ogoti ruled that the prosecution should have sought permission from the court before tabling the documents.
Mr Ogoti said it was clear that the document had not been supplied to the defence and the Director of Public Prosecutions and wondered whether it was an oversight by the investigating officer.
He however declined to expunge from the court record evidence of Ms Charity William, who tabled the document.
Mr Ogoti said the defence team had not supplied evidence to back the provisions of law which would allow him to expunge testimony given under oath.
The defence team led by senior counsel James Orengo and Philip Nyachoti had objected to the use of the statement saying it was obtained illegally.
“It is my finding that in order to obtain an entry of the banker’s books, one must obtain permission from the court which is otherwise known as a court order,” Mr Ogoti said.
He added that if admitted as evidence, the same would amount to hearsay.
In the trial, Dr Kidero is said to have received a total of Sh24 million from Lodwar Wholesalers Ltd on August 24, 2014 and September 11, 2014.
The former governor has been charged together with former chief officers in his administration over the alleged loss of Sh213 million between January 16, 2014 and January 25, 2016. They have denied 35 counts.
His co-accused are: former county secretary Lilian Ndegwa, ex-chief finance officer Jimmy Mutuku Kiamba, former CEC in charge of Finance and Planning Gregory Mwakanongo, former Accounting head Stephen Ogago Osiro, former acting chief Finance officer Luke Mugo and former acting head of Treasury Maurice Ochieng Okere.
Mr John Githua and Grace Njeri of Lodwar Wholesalers and Ngurumani Traders Ltd are accused of fraudulently receiving payments from the county government.
They allegedly conspired to commit corruption by authorising payment to various companies, for services not rendered. The hearing resumes on September 19.