Part of the evidence the prosecution sought to rely on for the Anglo Leasing trials will not be used in court on fears they had been tampered with.
Senior Principal Magistrate Martha Mutuku last week ruled that allowing the documents may prejudice parties in the case.
The evidence was presented in court by a former lead investigator at the Ethics and Anti-Corruption Commission (EACC), George Makembo, who had quit the anti-graft body in 2012.
The defence successfully petitioned the court, arguing the documents, including communication between ministers on the Anglo Leasing contracts, could have been tampered with after 2012.
“As a general rule, it is always a good practice to have the chain of custody of exhibits whatever their nature, clearly established in order to rule out the possibility of adulteration or switching such as would impact on the outcome of the case,” the magistrate ruled.
Ms Mutuku said that the prosecution did not provide sufficient evidence on why persons who handled the documents after Mr Makembo could not be brought to court.
“Mr Makembo has given a detailed account of the persons who handled the documents. We want those persons in court so that we can establish the chain of custody of these documents, and at what point alterations were made, if any,” said defence lawyer Kioko Kilukumi.
Mr Makembo also told the court that his investigations failed to link some of the suspects, including David Onyonka (former head of debt management at the Treasury) and the Kamanis, to graft over the Anglo Leasing contracts.
During cross examination by lawyer Sadia Carren, for the accused, the former investigator said he preferred charges against the suspects due to pressure for prosecution.
Businessmen Deepak Kamani, Rashmi Kamani and Chamanlal Kamani as well as former permanent secretaries Joseph Magari (Finance), Dave Mwangi (Provincial Administration), and Mr Onyonka are facing charges related to the multi-billion shilling security tenders that the State has termed irregular.
The prosecution through lawyer Nicholas Mutuku had opposed this petition, arguing that various witnesses have testified on these documents.
He said the documents the prosecution sought to introduce are original public documents obtained from the Office of the President and thel Treasury, and that no evidence had been tabled to demonstrate that they had been tampered with.
A previous case fell apart in 2005 because of a lack of evidence. Hearing resumes on July 1.