- Mr Musyoki recorded and signed the statement on April 24, 2009, and testified as a prosecution witness in a related case on November 18, 2014.
- Former city council legal secretary Mary Ngechi Ngethe, who is serving jail term over the scandal, had opposed the EACC’s application, saying she would not have an opportunity to cross-examine the dead man.
The High Court has allowed the use of a dead man’s statement to prove payment of Sh283 million in the scandal-ridden sale of land for a public cemetery in the outskirts of Nairobi.
High Court judge Lydia Achode ruled that the Ethics and Anti-Corruption Commission (EACC) could produce as evidence the statement of Henry Musyoki, who died in July 2016, in the case in which it is seeking to recover the money from officials of the defunct city council.
Mr Musyoki recorded and signed the statement on April 24, 2009, and testified as a prosecution witness in a related case on November 18, 2014.
Former city council legal secretary Mary Ngechi Ngethe, who is serving jail term over the scandal, had opposed the EACC’s application, saying she would not have an opportunity to cross-examine the dead man.
But Justice Achode said Ms Ngethe was afforded an opportunity to her right to fair hearing and the veracity of the claims made by Mr Musyoki can be determined by allowing her to file documents to counter the evidence.
It is alleged that the 120-acre land in Mavoko was purchased for Sh283 million, when it was worth Sh24 million and did not have a title deed.
The land had been earmarked to replace the Langata Cemetery, which is full.
“The issues are therefore related as they involved the same property and the manner in which it was procured. In my view, the applicant (EACC) has therefore satisfied the preconditions set in section 34 of the Evidence Act,” said Justice Achode in relation to Ms Ngethe’s opposition.
In the case, the EACC is seeking to recover money paid to officials of the defunct city council involved in the procurement of the Mavoko land. From Ms Ngethe, the commission is seeking to recover about Sh13 million, which was allegedly paid to her.
Ms Ng’ethe was sentenced to three years in jail and ordered to pay a fine of Sh52 million, failing which she was to serve an additional one year in jail.
This was after she was found guilty of giving a misleading report purporting that the committee had agreed to buy the controversial land. They also used a false valuation report to award the tender.
In the civil case, the EACC has maintained that the money was paid out through a flawed process.
The prosecution said it intends to use the statement signed Mr Musyoki before his death to prove the case against Ms Ngethe.
The judge said the Evidence Act provides that a judgment in a criminal case is not conclusive proof of the fact that the plaintiff wishes to prove. She said the veracity of the allegations may be determined by allowing Ms Ngethe to file documents, rebutting the evidence admitted.
The defunct city council officials approved the purchase of the land in March 2005 for use as a cemetery as the existing graveyard at Lang’ata had no space.
The land turned out to be greatly overpriced and the soil unsuitable for a cemetery.