[2022] KEHC 10570 (KLR)

Director of Public Prosecutions v Mwiraria & 6 others (Anti-Corruption and Economic Crimes Revision E013 of 2021) [2022] KEHC 10570 (KLR) (Anti-Corruption and Economic Crimes) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10570 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Revision E013 of 2021

EN Maina, J

June 16, 2022

Between

Director of Public Prosecutions

Applicant

and

David Mwiraria

1st Respondent

David Muya Mwangi

2nd Respondent

Joseph Mbui Magari

3rd Respondent

David Lumumba Onyanga

4th Respondent

Rashmi Chamanlal Kamani

5th Respondent

Deepak Kuma Kamani

6th Respondent

Chamanlal Vrajlal Kamani

7th Respondent

((Being a revision against a ruling by Hon. F. Kombo CM in Milimani Anti- Corruption Case No. 2 of 2015 Republic v David Mwiraria & others on 4th October, 2021))

Judgment

Introduction 1. The Director of Public Prosecutions (the Applicant) filed the notice of motion dated October 8, 2021which is supported by an affidavit sworn on October 8, 2021by Steven Githinji, Prosecution Counsel at the Office of the Director of Public Prosecutions. The application which is brought under article 165(6) & (7) of the Constitution and sections 362, 364 and 367 of the Criminal Procedure Code cap 75 seeks the following reliefs:“1) That the honourable court be pleased to certify the application as urgent and ex parte in the first instance and on priority basis.2) That the honourable court be pleased to call for and examine the record of the proceedings in the Anti-Corruption Chief Magistrates Court Nairobi at Milimani in Anti-Corruption Case No 2 of 2015 Republic v David Mwiraria & others, for the purpose of satisfying itself and pronouncing on the correctness, legality and propriety of the findings and orders issued on October 4, 2021by Hon Felix Kombo CM.3) That the Honourable Court be pleased to review, vary, reverse and/ or set aside the order relating specifically disallowing the evidence obtained from the Swiss Confederation in Anti-Corruption Chief Magistrates Court Nairobi at Milimani Anti-Corruption Case No. 2 of 2015 Republic v David Mwiraria & others on grounds of integrity.4) That pending the hearing and determination of this application for revision, the Honourable Court be pleased to stay proceedings in Anti-Corruption Chief Magistrates Court Nairobi at Milimani in Anti-Corruption Case No 2 of 2015 Republic v David Mwiraria & others to avert a serious miscarriage of justice.5) That the honourable court be pleased to make any other order that it deems fit in the interest of justice.”

Background 2. The respondents are charged with various corruption related offences in Milimani Anti-Corruption Case No 2 of 2015 Republic v David Mwiraria & others which proceedings are pending before the Magistrates court. The evidence filed in the trial includes evidence which was obtained from the United Kingdom and the Swiss Confederation through Mutual Legal Assistance.

3. During the examination-in-chief of PW37 Ignatius Wekesa, the Investigating Officer, an objection was raised by defense Counsel to the production of certain documents, particularized in the Inventory of Objected Documents filed on August 5, 2021as MFI 9, MFI 13-14, MFI 17, MFI 60, MFI 61(a)-(p), MFI 62-64, MFI 65(a) and MFI 65(b), MFI 72-73, MFI 75(a)-(b), MFI 77, MFI 81, MFI 85, MFI 87(a)-(n), MFI 90(a)-(g), MFI 92(i)-(ii), MFI 95, MFI 96 also marked as MFI 81, MFI 97, MFI 98(i)-(xxi), MFI 110-111, MFI 118, MFI 120 -121, MFI 123(a)-(t), MFI 124, MFI 124(a)-(h), MFI 125, MFI 125(a)-(h). The trial magistrate heard the objection and in a ruling delivered on October 4, 2021, he admitted some of the documents but excluded the remainder of the documents which now form the basis of this application by the Director of Public Prosecutions/applicant.

The Applicant’s case 4. The grounds for the application are summarized as below:-“(a) The applicant avers that the learned Magistrate erred in law by disallowing the evidence obtained from the Swiss Confederation despite having found that the chain of custody was in order. That he erred in law by rejecting the material obtained pursuant to a Power of Attorney which he found to be proper and valid.(b) They aver that the learned Magistrate erred in law in isolating the issue of integrity over one item of evidence without considering the totality of evidence adduced in the matter, including through witness testimony.(c) The applicant avers further that that the Magistrate erred in law in finding that prosecution witness PW26 was co-opted as an investigator by Kenya Anti-Corruption Commission by rendering his expertise assistance in drafting the letter of request a factor erroneously attributed to lack of integrity of the evidentiary material sought to be produced.(d) They aver that the Magistrate erred in law and fact by implying that the length of time taken in executing the Mutual Legal Assistance requests degraded the integrity of the evidence and that he ignored the totality of evidence placed before him.(e) That the court concluded that the fact of scanning documents and storing them in electronic media amounted to tampering with the evidence and ignored the testimony of PW26 that the documents were scanned in his presence.(f) The applicant avers that the learned Magistrate erred in law and fact by implying that safe custody of evidentiary material is stored and secured in an inaccessible room or receptacle which error resulted to a serious misdirection when he concluded that that the scanning of documents by the assistant of PW26 in his presence meant that the integrity of the documents was compromised.(g) That the Magistrate accorded undue weight to the description of pagination of the evidence in box files marked for identification as MFI 97,98 and 121 while disregarding the totality of evidence already before the court and his own finding that the chain of custody was unbroken;(h) That he based his decision to disallow the evidence obtained from Swiss Confederation on his personal opinion.

5. In the supplementary affidavit, the applicant produced as an annexture a copy of the certificate of execution Exh 127 marked as SG 1, Bank account opening documents for account number 602439 held by Apex Finance Ltd at Schroeder & Co Bank MFI 121 marked as SG2 and statements and other documents contained in a box file marked MFI 98 marked as SG 3. The applicant only annexed some parts of MFI 121 and 98 and explained that the complete documents are voluminous hence could not be annexed in their entirety.

6. In written submissions dated and filed on December 8, 2021, Learned Counsel for the applicant submitted that the learned Magistrate erred in law in isolating the issue of integrity over one item of evidence without considering the totality of the evidence adduced in the matter. Counsel referred to an unreferenced Black’s Law Dictionary to define integrity of a document to mean the way records are archived, maintained and preserved from any damage, change or theft.

7. Counsel submitted that the material in issue was obtained legally from the Swiss Confederation through Mutual Legal Assistance initiated by a letter of request dated May 6, 2008which was duly executed by the then Kenya Anti-Corruption Commission Director Justice Aaron Ringera (Rtd) to the Federal Office of Justice Switzerland. Counsel stated that the material was marked for identification as MFI 81/96 flash disks, MFI 75(a) and (b) compact disks, MFI 97, MFI 98 and MFI 121 files. Counsel stated that the request was in respect to the investigations into the financing agreement entered into on behalf of the government of Kenya for the modernization of the Police Force Security Equipment and accessories project for the Kenya Police Department by Sound Day Corporation, Apex Finance Corporation, Deepak Kamani and others.

8. Counsel stated that two Powers of Attorney dated February 9, 2007and July 5, 2008were issued to Dr Mark Henzelin, of La Live Attorneys, Geneva, appointing him to appear on behalf of the Republic of Kenya in matters where Kenya may have to request for mutual legal assistance from Swiss authorities and to file criminal complaints in Switzerland.

9. Counsel averred that after the request was made, several cases challenging the handing over of the evidence to the Republic of Kenya were filed before the Swiss Federal Court which were heard and ultimately determined in favour of the Kenya Anti-Corruption Commission. That those cases determined that the Kenya Anti-Corruption Commission had the jurisdiction to request for mutual legal assistance hence leading to the delivery of the material obtained through mutual legal assistance to the Office of the Attorney General by the PW26 on February 16, 2015.

10. Counsel submitted that the material was forwarded to the Ethics & Anti-Corruption Commission through a letter addressed to the Deputy Chief Executive Officer. Counsel submitted that the trial magistrate therefore erred in holding that PW26 kept the material for 3 years. Counsel asserted that there was no break in the chain of custody in the transmission of the material from the Request to the Swiss Confederation and the Magistrate ought to have admitted the evidence and addressed the issue of integrity at a later stage.

11. Counsel further submitted that the Magistrate’s finding that Dr. Henzelin (PW26) was co-opted as an investigator in the matter does not have grounding in fact and law. That the trial magistrate disregarded the testimony of PW26 as to his role in the Mutual Legal Assistance process and took the words “joint venture” out of context and that this finding contradicts the courts holding that the Mutual Legal Assistance request had to conform with the law of Switzerland.

12. Counsel stated that the involvement of Dr. Henzelin (PW26) in the Mutual Legal Assistance was only limited to the preparation of letters of request for mutual legal assistance to ensure that they conformed to Swiss law and that PW26 was not involved in any investigations. Counsel contended that it was imperative to engage PW26 as he was an expert in Swiss law and emphasized that the international best practice requires the State to keep personal contacts with officials of the requested State and referred to examples such papers as “An Informal Expert Working Group on Mutual Legal Assistance Case Work Best Practices under the auspices of the UNODC” and “A study of experiences in 31 Asian Countries in MLA jointly published by the Asian Development Bank and the Organization for Economic Cooperation and Development.”

13. Counsel also argued that the conclusion reached by the learned Magistrate cannot be justifiably maintained as it is an inaccurate depiction of the evidence before the court and a mis-appreciation of the law and practice of mutual legal assistance in international cooperation; that the finding that the prosecution failed to call a key witness Jacques Rayroudes, a Federal Prosecutor, was erroneous as the prosecution is yet to close its case. Counsel urged this court to therefore review, vary, reverse and/or alter the trial court’s ruling dated 4th October 2021. Counsel cited the case of Director of Public Prosecutions v Samuel Kimuchu Gichuru & another [2012]eKLR and the case of DPP v Jackson Cherono [2019] eKLR to support the above submissions.

14. Counsel further argued that this court has supervisory jurisdiction over subordinate courts under article 165(6) of the Constitution and for this cited the case of Director of Public Prosecutions v Kuldip Madan and another[2019] eKLR, R v Ajit Singh [1957] E.A 822 and the case of BGM HCCR Revision No. 27 of 2013 Martin Maruti Kituyi v Republic.

15. At the oral highlighting of submissions and in the reply to the respondent’s submissions, Counsel for the applicant submitted that the learned magistrate did not look at the box files obtained from Switzerland before rejecting them hence occasioning a miscarriage of justice. Counsel stated that the prosecution had already submitted a certificate of transmission (Pros. Exh 127) in respect of Mr. Jacques which they hoped the court would look at before rejecting the documents. Counsel then added that should the evidence obtained through mutual legal assistance be rejected requested countries will be discouraged.

16. In regard to the supplementary affidavit objected to by Counsel for the Respondent, Counsel asserted that this court granted the Applicant leave to file the same on 10th November 2021. Counsel contended that the Applicant did not contravene the law on supplementary affidavits as the affidavit only expounds on the issue of pagination and does not introduce a new issue. Counsel relied on the case of Astute Africa Investments & Holding v Spire Bank Kenya Limited Civil Case No. 455 of 2017.

The Respondent’s case 17. The 1st and 7th respondents are deceased while the 2nd respondent elected not to file any response or submission to the application.

18. The 3rd respondent opposed the application based on the grounds of opposition filed on December 8, 2021. It is the 3rd respondent’s position that the decision of the trial court was not illegal, incorrect or generally irregular or marred by impropriety as to warrant revision by this court. That allowing the application will be tantamount to micromanaging the trial; that the applicant’s recourse lies in an appeal; that it will be greatly prejudicial to allow the application; that the claim by the applicant that their evidence is enough is premature as the sufficiency of the evidence can only be weighed at the close of their case and that the integrity of the documents the applicant wished to produce violated the Mutual Legal Assistance Act. The 3rd respondent further asserts that the application is incompetent and a gross violation of the court process.

19. The 5th and 6th respondents opposed the application through their joint grounds of opposition dated December 7, 2021 and written submissions dated February 11, 2022. The sum total of the 22 grounds can be summarized as follows: that there is no glaring act or omission by the lower court to warrant the revision of the said decision; that the applicant’s remedy lies in an appeal and not revision; that, this court lacks jurisdiction to re-evaluate the evidence before the lower court in a revision application; that the applicant has not demonstrated that they would suffer any breach of fundamental right or freedom to warrant the exercise of revisionary jurisdiction by the court; that, the respondent’s right to fair trial shall be infringed if the impugned evidence is admitted by the lower court and that the applicant has failed to point out any illegality, incorrectness or impropriety in the ruling of the trial magistrate. The 5th and 6th respondents aver that the learned magistrate correctly made the findings that the process of mutual legal assistance was a joint venture as evidenced in Mark Henzelin’s (PW 26’s) testimony and that the integrity of the documents was questionable. Counsel reiterated that there is nothing irregular in the ruling to warrant this court’s intervention through the exercise of its revisionary jurisdiction and finally that it is in the interest of justice that the application be dismissed.

20. In the written submissions, Learned Counsel for the 5th and 6th respondents framed two issues for determination namely: firstly, whether a supplementary affidavit can cure the defects of a supporting affidavit or introduce prayers not sought in an application; and secondly what are the grounds for revision orders and whether the Applicant has met the threshold for the orders sought.

21. Counsel submitted that the applicant’s supplementary affidavit sworn on December 8, 2021attempted to cure the defects in the supporting affidavit specifically at paragraph 7 to 14. That it changed the applicant’s narrative from the documents were serialized to the documents were paginated. Counsel stated that the supplementary affidavit introduced a new prayer by invoking the supervisory jurisdiction of this honourable court, an alleged backdoor attempt to amend the application and which should be expunged from the record. To support the submissions Counsel cited the case of Astute Africa Investments & Holding v Spire Bank Kenya Limited & another [2018] eKLR.

22. Counsel further submitted that the applicant has not met the threshold for exercise of the discretionary revisionary jurisdiction of this court in its favour in that the applicant has not pleaded a violation of its fundamental rights or freedom. Counsel stated that the admission of the impugned documents would violate the right to fair hearing of the 5th and 6th respondents that is entrenched in article 50 as read with article 25 of the Constitution. Counsel argued that accused persons cannot be put on their defense on the basis of improperly admitted documents which violate the rules of evidence and admissibility as the same would go against public policy in Kenya. Counsel placed reliance on the following cases:- George Aladwa Omwera v Republic [2016] eKLR, Director of Public Prosecutions v Kuldip Madan & another [2019] eKLR and Abraham Wafula v Republic[2013] eKLR.

23. Counsel also argued that the revisionary jurisdiction, though discretionary should not be used to micromanage the trial courts on matters admissibility of evidence such as the instant case; that this court cannot make a re-assessment of the evidence and that the applicant attempted to re-annex the expunged evidence in their supplementary affidavit. Counsel urged this court to refrain from the invitation to re-assess the evidence and cited the case of Njuguna Mwani andanother v Republic [2019] eKLR in support. Counsel asserted that revisionary jurisdiction is narrow and concerned only with the regularity of proceedings. That revision is limited to improper, incorrect and illegal determinations and the discussion on the substance of the ruling falls outside the scope of revisionary jurisdiction which is reserved for appeal. Counsel contended that this court cannot vary the decision of the trial court as this would amount to replacing the trial court’s finding with its own finding. In that respect, Counsel cited the case of Alex Mutungi Mutuku v Republic [2021] eKLR and Republic v John Wambua Munyao & 3 others [2018] eKLR.

24. Counsel further asserted that the lower court correctly found that the documents obtained from the Mutual Legal Assistance request to the Swiss Confederation were inadmissible for want of integrity. That MFI 127 is a certificate of execution of the Mutual Legal Assistance request sworn by Jacqueus Rayroude, Swiss prosecutor, who lists the pagination of over 2000 documents that he had paginated but the pagination was missing on all pages supplied to the accused persons and purportedly received by the state through the Mutual Legal Assistance request. Counsel stated that some documents had serialization as alleged by prosecution but others did not, which goes to the core of the integrity of the documents; That the said Jacque Rayroudes was not called to testify yet he was the only person capable of clarifying the discrepancies. Counsel reiterated that the applicant’s argument mutated from one that documents were serialized to one that the documents were paginated and submitted that parties are bound by their pleadings and any evidence which does not support the pleadings should be disregarded. Counsel contended that the evidence of PW23 cast doubt on the integrity of the documents obtained through the Mutual Legal Assistance request and the magistrate correctly held so. Counsel urged that this application is an appeal disguised as a revision as it goes into the substance of the ruling. Counsel cited the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR and asked this court to dismiss the application.

Issues for determination 25. I have carefully considered the application, the grounds thereof, the affidavits of the applicant, the grounds of opposition and the rival submissions both written and oral. The following issues arise for determination:1. whether the supplementary affidavit sworn on December 8, 2021 introduces new prayers not sought in the application and whether it should be expunged; and2. whether the orders sought are merited.

Analysis and determination Issue No. (1) Whether the supplementary affidavit sworn on 8th December 2021 introduces new prayers not sought in the application and whether it should be expunged 26. The respondents contest the substance and form of the applicant’s supplementary affidavit sworn by Steven Githinji on December 8, 2021. Order 51 Rule 14 (3) of the Civil Procedure Rules states:-“(3) Any applicant upon whom a replying affidavit or statement of grounds of opposition has been served under subrule (1) may, with the leave of the court, file a supplementary affidavit.” (Underlining mine)

27. The filing of a supplementary affidavit is therefore sanctioned by the Civil Procedure Rules provided leave of the court is obtained. The proceedings before this court are not civil in nature but criminal in nature as what is before this court is an application for revision of a ruling of a court trying a criminal case. Be that as it may the law does not provide for the form by which applications for revision ought to be made to this court but only states that the court may on its own motion or in a matter reported to it or which otherwise comes to its attention call for the record of a subordinate court for purposes of revision. This application therefore suffices. This court granted leave to the applicant to file a supplementary affidavit as provided in order 51 rule 14(3) of the Civil Procedure Rules. The purposes of a supplementary affidavit is to respond to issues raised in the responses of the respondents. A review of the impugned supplementary affidavit reveals that the deponent has made averments in respect to the contentious documents and produced annextures Exh 127 as SG1, documents marked as MFI 121 as SG2 and MFI 98 as SG3. The averments by the deponent are statements of fact in further explanation of the excluded evidence alluded to in the supporting affidavit. It is my finding that the affidavit does not amend or plead new prayers outside what was already pleaded in the application and the supporting affidavit of October 8, 2021. The prayers in the application remain unaltered. The respondent’s assertions of alleged addition of new prayers in the supplementary affidavit has no basis and cannot stand and it is rejected.

Issue No. (2) whether the orders sought are merited. 28. Section 362 of the Criminal Procedure Code vests this court with jurisdiction to call for and revise orders of subordinate courts. The section states as follows:“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

29. The powers of the court on revision are to be found in section 364 of the Act which states:-“(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defense.” (underlining mine)

30. Article 165(6) and (7) of the Constitution also gives this court supervisory jurisdiction over subordinate courts. That Article states:-“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration.”

31. The revisionary jurisdiction of the High Court must however always be exercised judicially and is thus to be invoked only where the subordinate court has made a decision whose correctness, legality, propriety or irregularity is in contention. It should not be a substitute for an appeal. In the case of George Aladwa Omwera v R [2016] eKLR, cited with approval in the case of Kipyegon Koskei v Republic [2021] eKLR it was held that:“The supervisory powers are obviously intended to enable the High court use them in grave cases where the subordinate tribunal or bodies or officer acts wholly without jurisdiction or excess of it or in violation of the principles of natural justice or refuses to exercise jurisdiction vested in them or there is an apparent error on the face of the record and such action, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide and large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what the proper view on the order is to be made….”

32. It is trite therefore that while a party aggrieved by an error on the part of a subordinate court may approach this court either by way of revision the court does not concern itself with the merit of the decision and a party aggrieved by the merit of a decision would be best advised to appeal. Indeed, section 364 of the Criminal Procedure Code is emphatic that revision is not available to a party who could have appealed but did not. It is my finding that the application before me has properly invoked the jurisdiction provided under Section 362 of the Criminal Procedure Code and article 165(6) and (7) of the Constitution as the same raises the correctness of the trial magistrate’s rejection of the documents in issue. The application does not require this court to look into the merits of the evidence contained in those documents and this court needs not to scrutinize their contents for it to make a determination. I therefore find that the application is properly before this court. Moreover in the case of Joseph Lendix Waswa v Republic [2020] eKLR the Supreme Court settled the issue of interlocutory appeals in criminal cases and while holding that interlocutory appeals ought to await the determination of a case it nevertheless ruled that appeals on the admissibility of evidence are an exception to the rule.

33. The trial magistrate rejected the document in issue for reason that first they were not certified and second, that their integrity was questionable given the manner of their storage.

34. The admissibility in Kenya of evidence obtained abroad, as was the case with the documents before the trial court, is provided for in Part VII of the Mutual Legal Assistance Act. Section 33(1) and (2) thereof state as follows:-“33(1) A record or a copy and any affidavit, certificate or other statement pertaining to the record made by a person who has custody or knowledge of the record sent to the Central Authority by a requesting state in accordance with a Kenyan request, shall not be inadmissible in evidence in a proceeding with respect to which the court has jurisdiction by reason only that a statement contained in the record, copy, affidavit, certificate or other statement is hearsay or a statement of opinion.(2) For the purpose of determining the probative value of a record or copy admitted in evidence under this Act the court may examine the record or copy, receive evidence orally or by affidavit, including evidence as to the circumstances in which the information contained in the record or copy was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record or copy.”

35. It is clear from the wording ofsection 33(1) that the record or a copy of any affidavit or certificate pertaining to the record made by the person who has custody or knowledge of the record sent to the Central Authority in accordance with a Kenyan request cannot be rejected merely for being an opinion or hearsay. The certificate of execution of Mutual Legal Assistance Request and transmission of evidence prepared by Jacques Rayroud on 11th March explains what the request was and how he executed the request.

36. The testimony of Dr. Henzelin (PW26) is clear that the preparation of the documents duly complied with the Swiss laws on execution of MLA requests, that is the Swiss Criminal Procedure Code Articles 23 and 24 and The Federal Act on International Mutual Assistance in Criminal Matters (Mutual Assistance Act IMAC Article 17). Dr. Henzelin (PW26) who had been appointed to represent Kenya in the event it required mutual legal assistance and who brought that evidence to Kenya produced Exh. 127 at the trial, a Certificate of Execution of MLA Request and Transmission of Evidence dated 11th March 2015 signed by Jacques Rayround. That certificate accompanied the documents expunged by the trial Court (MFI 121) which are marked as SG2 and MFI 98 marked as SG3 in the supplementary affidavit. Jacques Rayround was the person who obtained the documents himself and while PW26 only prepared and transmitted those documents his evidence is admissible under Section 33 of the Mutual Legal Assistance Act. I agree fully with the trial magistrate’s interpretation of section 33(1) of the Mutual Legal Assistance Act. I do also agree with his finding that nothing in that provision would prevent a party from objecting to the production of such documents on the basis that they are forgeries or on the ground that they were illegally obtained. (My so saying is founded on my reading of section 46 of the Mutual Legal Assistance Act which provides that the law of Kenya shall govern the admissibility of evidence to be gathered under the Act). It is also my finding however that the rejection of the documents herein was incorrect. It is also my finding that the reasons given by the defence for objecting to the production of the documents were issues that touched on their probative value. It is also not lost to this court that the evidence obtained by Jacques Rayround were documents held by Schroeder & Co. SA Bank and hence Bankers Books whose admissibility in Kenya would be governed by chapter VII of the Evidence Act which the learned trial magistrate did not advert to.

37. It transpired during the hearing of this application that the documents were properly paginated but that an error may have arisen during the scanning of the documents supplied to Counsel for the respondents. It did also transpire that the certificate which should accompany such documents was there and that the prosecution might still have called the maker of that certificate. Moreover the trial magistrate had himself come to the conclusion that the documents could not be rejected only for lack of a certificate and to that extent rejected the objection by the respondents. The trial magistrate having found that the request made to the Swiss Confederate and to United Kingdom were valid and that the documents were properly transmitted to Kenya, erred in rejecting them on the ground of their integrity whereas their integrity or otherwise ought to have been tested through cross-examination.

38. Section 33(2) of the Mutual Legal Assistance whose commencement had by then taken effect enjoined the trial magistrate to examine the documents including the evidence as to the circumstances in which the information contained therein was recorded or how the copies were written, recorded or stored in order to determine their probative value. The integrity of the documents would in my view go to its probative value something that should have been left to cross-examination.

39. In the upshot I find that the rejection of the documents was incorrect and improper and accordingly this application is allowed and the ruling of the trial magistrate is reversed and it is hereby directed that the documents obtained from the Swiss confederation which were rejected on grounds of integrity shall be admitted in evidence.

40. The orders staying the trial in the lower court is also vacated and it is also ordered that this ruling shall be certified to the trial court forthwith as provided in section 367 of the Criminal Procedure Code. Orders accordingly.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 16TH DAY OF JUNE, 2022E N MAINAJUDGE