A trial in Nairobi court vindicated Dave Mwangi, Joseph Magari, Joseph Onyonka, businessmen Deepak and Rashmi Kamani declaring they were “innocent” and were charged irregularly.
“Having examined the evidence presented in court, I have concluded that the prosecution has failed to prove a case against the accused warranting to put them om their defence and therefore acquit them fir lack of evidence,” chief magistrate Felix Kombo ruled.
The magistrate said there were glaring contradictions and inconsistencies in the prosecution’s case and opined that perhaps the suspects had been charged “selectively” after “those who were intimate with the procedures were like the former internal security PS Dr Chris Murungaru, former AG Amos Wako and his assistance Dorcas Achapa were never dragged to court to face trial.
Kombo said he found the assertion that Sounday Incorporation, the company in question was non-existent was farfetched as it had a long history of dealings with the Government of Kenyan( GoK) since the 90s.
The magistrate ruled that the procurement procedures were properly followed and that the budget allocation for the project was in order, having perused the evidence brought to court that proved that due diligence and procurement procedures were followed.
“The government had a legal obligation to pay tef contractual fees,” he said adding that claims that the project had not been budgeted for was not supported.
Kombo ruled that nothing was out of place in the procedures that official followed to do business with Sound Day as it had a history of dealing dating back to 1993.
“The submission by the state that the company in question was a shell company used to siphon money from the government lacked evidence and there is nothing to show that there was a conspiracy between its owners and the rest of the accused in the case” he said.
The magistrate said the assertions by the state against the former government officials and the businessmen were erroneous and unfounded.
“For instance, sound day was known in government circles since the 1990s and could not be a phantom company, “ he said.
He said a witness who said he was an offshore-fraud expert and whom the prosecution relied on from UK struggled to prove Sounday was shell company and even overstepped his mandate.” He went beyond the role of an expert and transformed himself into an investigator.
“Despite spirited attempt to prove its case, I find that the evidence before me fails to stand the test,” the magistrate ruled.
He said the state “cherry- picked” suspects to charge in a case that he said smirked of “selective prosecution” while leaving out those who were very close and intimate with the procedures and wert e main suspects..
“There is absolutely no evidence of involvement in a conspiracy, nothing is before the court to prove the completion of a conspiracy,” he ruled.
He said he was in agreement with the submission by the defense that the prosecution purposefully avoided calling in witnesses who performed various administrative tasks along the line but it deemed adverse and would have devastated its case.
The magistrate said that not calling such witnesses did not help the prosecution case as it still failed to convince the court to continue with hearing the case.
He said documents presented in court showed Soundday was a registered company that was incorporated in the British Virgin Islands in September 21,1989.