The original legal opinion from then Attorney General Amos Wako approving the Anglo Leasing contracts cannot be traced, derailing investigations of the multi-billion-shilling security deals.
Deputy Director of Public Prosecution Jacob Ondari on Wednesday told the court that investigators into the multi-billion shilling security contracts offered to Sound Day Corporation were unable to trace original approval sent from the AG's office to the Treasury.
The Evidence Act demands that only original documents must be tabled in court during prosecution.
Mr Wako, now Busia Senator, said his office approved the security contracts with conditions — which were later met by the Treasury and Interior ministries. He told the court that his office also okayed promissory notes issued to one of the Anglo-Leasing firms, Sound Day Corporation, for the supply of security equipment for police use.
A promissory note is an instrument that contains a written pledge by one party to the other a defined sum of money, either on demand or at a specified date.
“The prosecution cannot really be blamed for not having the original documents but we have produced genuine copies of the originals,” Mr Ondari.
He asked Mr Wako, who was also testifying in court on Wednesday, to produce the copies to support the prosecution’s case given he was the author of the missing files, which are only available in copies.
The Ethics and Anti-Corruption Commission (EACC) had earlier made an urgent request for original documents used in the Anglo Leasing contracts to aid investigations.
Besides the original approval sent from the AG’s office to the Treasury, original letters from the AG’s office requesting Mutual Legal Assistance from Switzerland and the rights given to foreign lawyer to represent Kenya in a Switzerland court are also missing.
“The prosecution has not availed [sic] any evidence to demonstrate why they are unable to comply with the Evidence Act. Unless reasonable evidence is adduced, we object to the production of the copies,” said defence lawyer Kioko Kilukumi.
On Wednesday, Anti-Corruption Court Magistrate Felix Kombo said the EACC will shed more light on the missing files given they have probed the security contracts for about 15 years.