The witness who was under the state sponsored Witness Protection Programme was released without the knowledge of the police and the Director of Public Prosecution.
He has since disappeared without trace, assistant DPP Lilian Obuo said on Monday.
TRACING THE WITNESS
“This witness was released on December 20, 2014 without notice. The investigating officer has since sworn an affidavit detailing the efforts he is making in tracing the witness at his last residence and he indicates that he has got new leads,” Ms Obuo said.
The case was adjourned in light of the new development.
The witness in question was the producer of a video depicting the politician uttering inflammatory remarks that gave rise to the court case.
“The witness recorded a statement using a pseudonym. We cannot give details because he was protected. Until we find him, the rest of the information remains confidential,” Ms Obuo said.
Mr Waititu is charged with uttering words that the prosecution says led to the deaths of two people in Kayole estate in 2012 while he was MP for Embakasi.
On Monday prosecution sought that the video clip be admitted as evidence in the absence of its author ,a suggestion that prompted objection from lawyer Cliff Ombeta for Mr Waititu.
Mr Ombeta said that the ground rules demand that the author of the video clip be present in court and that if it was admitted in his absence it may deny him a chance to cross examine the witness.
“ The prosecution is trying to sneak in evidence which will deny a chance for cross examination. Our objection is that the person who made the clip must come to court and be cross examined on the same,” the lawyer said.
A police officer who received and analysed the video clip in question was on Monday stood down to allow the trial magistrate, Ms Joyce Gandani, make a ruling on whether he can be allowed to present and play it in court.
Assistant DPP Ms Obuo invoked section of the law that allows the admissibility of electronic evidence in a criminal trial, telling the court that only three witness, including the one who cannot be traced were left before the prosecution closes its case.
A ruling had already been made in previous proceedings on April 15 upholding the objection that the police officer may not play the clip unless the author testified first.
“The law does not protect him as long as the prerequisites are not met,” Mr Ombeta said.