The High Court in Mombasa has temporarily stopped the corruption case against Nairobi tycoon Praful Kumar after the Director of Public Prosecutions (DPP) contested a directive requiring him to supply electronic evidence to the businessman.
Mr Kumar has been charged with allegedly attempting to bribe Nairobi Governor Mike Sonko in 2018 in order to get approval for Grand Monar Hotel in Gigiri, which was under construction.
The orders staying the proceedings were granted after the DPP, through State Counsel Erick Masila, protested a ruling by a magistrate's court that would have forced him to provide all the electronic evidence required by the defence.
In her ruling, Chief Magistrate Edna Nyaloti said the court was satisfied that the prosecution is under duty to disclose information sought by the defence and that the only information the prosecution can be limited to disclose is that which touches on national security.
"The case shall proceed for hearing and that the prosecution to make specific telephone conversations requested by the defence before the close of prosecution's case to enable the defence prepare for their case," Ms Nyaloti said.
The businessman had asked for electronic version of the telephone records and detailed conversations with Governor Sonko produced in court before the starts of his trail.
Particularly, Mr Kumar wants the details of the alleged phone conversations between him and Governor Sonko on August 20, 2018, including the telephone numbers and location from which the calls happened.
He also applied for a soft copy of the telephone records between him and Mr Sonko, Mr Joab Odhiambo, Mr Stanley Kilonzi and Mr Jacob Ongubo between August 21, 2017 and August 30, 2018.
The suspect says the information is necessary to disapprove the corruption charges against him, adding that without full, frank and fair disclosure of such details, he will be greatly prejudiced and, already being a victim of a mechanisation, he will not be able to execute his defence.
The magistrate granted the businessman's request, a decision that aggrieved the prosecution who then sought the intervention of the High Court.
"The DPP is dissatisfied with the magistrate's decision, which raises serious violation of fundamental rights and freedoms especially on the right to privacy," Mr Masila said.
He said as a consequence of the ruling, the prosecution has been ordered to tap telephones, eavesdrop and also listen to telephone conversation between the prosecution witnesses and the suspect in order to furnish the defence with the said information in the form of disclosure of evidence.
In an application brought under a certificate of urgency before Justice Njoki Mwangi, the prosecution has termed the directive a serious security breach, hence the State cannot supply the required information to the defence as it goes against the law.
"Furthermore, we can't be a party to such gross violation of the right to privacy by having the privacy of communication being infringed. The DPP shall have regard to the interest of justice and the need to prevent the abuse of legal process," Mr Masila said.
The prosecution has alleged that the suspect attempted to bribe Mr Sonko by offering a Sh5 million as an inducement for approval of the hotel project.
He allegedly committed the offence on August 20, 2018 at Kanamai in Kikambala, Kilifi County.