Lawyers reject new exhibits in NYS trial

Defence lawyers on Tuesday objected to the introduction of documents that were allegedly missing from the list of exhibits when the trial of 35 suspects in the National Youth Service scandal started.
Lawyers Stephen Ligunya, Migos Ogamba and Kiraithe Wandugi said the evidence comprising two payment vouchers and bank statements cannot be introduced at this stage because it would amount “to trial by ambush”.

EVIDENCE
Mr Wandugi told Chief Magistrate Douglas Ogoti that the prosecution would be using the court to tie the loose ends in their case if the introduction of the evidence was allowed.
“The court should not permit the Director of Public Prosecutions (DPP) to use disclosure at his convenience because this would amount to abuse of due process. By allowing the said evidence, the consequence will be to deprive the accused persons of a fair trial,” he said.

TRANSACTIONS
Through Principal Prosecution Counsel Carolyne Kimiri, the DPP applied to be allowed to attach the bank statements for an account operated by Ms Phyllis Ngirita, who is accused of receiving Sh50 million for goods that were not supplied.
The statement details transactions between August 13, 2016 and April 20, 2018, specimen signatures and two statements from KCB officials in Naivasha.

MISPLACED
In an affidavit filed by Mr Kenneth Kemei, an investigator, the DPP said the two payment vouchers were misplaced during a document examination process. He added that the bank statements were left out as an oversight.
The officer said that at the time of disclosure, two payment vouchers — numbers 1340 and 1341 — that formed part of the documentary evidence for the prosecution had been misplaced at DCI headquarters after they were forwarded to the document examiner for forensic examination.

RELEVANT
He said the non-disclosure was an oversight since bank statements for the period between October 17, 2008 and August 12, 2016 had been disclosed to the accused persons, but they were not relevant to the current case.
But Mr Ogamba said the application was meant to fill the gaps and “breathe life” to the case. He said the prosecution cannot be allowed to introduce evidence when the trial has already started.

EXCUSE
The same sentiments were echoed by Mr Ligunya, who said the case is mutating.
He said the explanation by the prosecution that leaving out the documents was an oversight is a lame excuse.
He said the prosecution should have informed the defence team at the pre-trial stage that the documents were missing, and that they would be introduced at a later stage.