The tax evasion case against businessman Humphrey Kariuki failed to take place yet again after the prosecution failed to supply all required documents in the rial.
Defence lawyers Kioko Kilukumi and Cecil Miller who are acting for Kariuki in the matter complained that they are unable to adequately prepare their client’s defence following the continued delay in supply of witness statements, supporting documents and exhibits.
“One year after investigations began and seven months after taking a plea, the Director of Public Prosecutions (DPP) has not supplied us with all the witness statements and exhibits,” defence lawyer Kioko Kilukumi told Chief Magistrate Francis Andayi.
Kilukumi told the court that he wrote to the DPP in January seeking to be supplied with statements and exhibits to enable him to prepare for the pretrial.
Kilukumi said there was a lot of fanfare when the suspects were charged but the DPP has failed in his duties to avail evidence in the multibillion tax evasion case and was giving documents piecemeal.
The lawyers said they were called to the DCI office two days ago and given statements of 29 witnesses out of 37. Witness statements of 8 witnesses were missing.
Kilukumi stated the inventory shows that there are 37 witnesses among them unnamed bank officials. Kilukumi says there is an indication that witnesses from National Bank and Equity Bank were to testify but their details and witness statements were not supplied so there is no way they can prepare the defence of their clients. Some of the 160 documentary exhibits in the case had also not been provided.
He wondered how the defence will go about preparing for the defence of the accused persons without full disclosure of the prosecution’s case.
“Kariuki is an international businessman and any delay in prosecuting the case means his businesses are being destroyed,” Kilukumi said.
The magistrate heard that the seven months which the DPP has delayed in supplying evidence to the defence is enough time to have heard and concluded the case. Kilukumi urged the court that the delay of months was a clear violation of the accused person’s rights under Article 50(2)(e) of the constitution to a fair trial conducted without unreasonable delay.
Other lawyers also protested the delay in supply of crucial documents with Mannases Mwangi for Africa Spirits Limited saying that since a year ago when the factory was closed, over 500 employees have not worked and as such, they were suffering due to the delay in the matter.
He asked the court to bring to a halt the issues of evidence.
The court has directed DPP to convene a joint pretrial conference where all the evidence was pre-arranged and availed to Defence counsel and any issues sorted out. This was against the background that some of the counsels have not received any of the documents.
Lawyer Rubeena Dar also informed the court that there was not one single original document that had been sighted in the review that was used to form the basis of the charges facing the accused persons and she said in the absence of such the case is as good as dead.
Ben Nzacho said they have not been given a single sheet of documents or witness statements.
Counsel took issue with the lack of numbering of the voluminous documents and said this would impact a smooth trial. The inspection of exhibits by the Defence teams was also identified as an outstanding issue.
The court found that the matter was not at all ready for pre-trial and it was as if the accused persons had just taken plea.
The court has directed that the defence counsels write to the DCI and DPP and indicate documents and witnesses statements that they have not been served within the next seven days. Thereafter the DPP is required to respond in writing to the lawyers on the evidence within 2 weeks.
The case conference will then be convened by the DPP to iron out any remaining issues.
The matter will be mentioned on May 21st to confirm compliance by the DPP.