Former Nairobi Governor Evans Kidero, on trial over a Sh213 million fraud case, wants the anti-graft court to throw out evidence from a bank manager saying it was illegally obtained.
Dr Kidero said the Ethics and Anti-Corruption Commission (EACC) obtained a detailed statement of accounts of the Nairobi City County from the City Hall branch of the Co-operative Bank without a court order on August 25, 2015.
Dr Kidero, who is being tried over alleged fraud alongside former county employees Lilian Ndegwa (county secretary), Jimmy Kiamba (chief finance officer, CFO), Gregory Mwakanongo (finance and planning minister), Stephen Osiro (head of accounting), Luke Mugo (acting CFO) and Maurice Okere (acting head of Treasury), said the trial “has been tainted by the evidence adduced by the banker.”
Dr Kidero said his rights in Articles 31 of the Constitution on privacy and Article 50 (2) of the Constitution on disclosure of evidence were violated by EACC when it presented evidence acquired without a court order.
Defence lawyer Tom Ojienda asked the court to expunge the evidence of Ms Charity Kagendo Williams, a manager of City Hall branch of the Co-operative Bank, saying it was irregularly obtained.
He said the prosecution relied on a different set of bank statements and exhibits which had not been supplied to the defence.
Prof Ojienda said the evidence touched on periods far beyond the timeline stated in the court order that was obtained later. The order sought statements and exhibits for 2014/15 but the ones produced included the period 2013 -16.
He said Ms Williams confirmed in court that she was seeing the statements and exhibits for the first time.
Ms Williams told the court she never gave EACC the bank statements and exhibits and therefore Prof Ojienda asked the magistrate to expunge them from the court records.
“The accused and his lawyers feel they were conned by EACC which produced crucial evidence from the lender on account transactions by the county yet it knew it acquired the testimony irregularly,” Prof Ojienda told chief magistrate Douglas Ogot.
He said the statements and exhibits were prejudicial to the trial.
Prof Ojienda said the EACC, after discovering its serious omission, returned to court on April 18, 2016 and obtained a court order to investigate the county’s’ bank account at the Co-op Bank.
“The anti-graft body caused the chief magistrate who gave the orders to believe that it was genuine in its request yet it had obtained records earlier without a court order,” Prof Ojienda said.
The evidence acquired by EACC touched on transactions between the county government, Lodwar Wholesalers and Ngurumani Traders Limited.
Dr Kidero and the other suspects have denied authorising payments to the two companyies for services not rendered.
Ms Julie Aulo Soweto who is teaming up with Prof Ojienda and Senator James Orengo for Dr Kidero asked the court to uphold the law by excluding the evidence of Ms Williams.