He said it was impossible for such a court order to be issued because the requests by the prosecution did not provide the exact numbers that it wanted information provided.
Kenyatta’s lawyer Steven Kay told the court that the defence team had given consent for the release of his bank records, phone records and vehicle records which the prosecution had also been furnished with.
The prosecution and Muigai disagreed over who had failed to cooperate with each making their argument. The prosecution earlier told the judges that Kenya had not responded or updated the office over its requests for about two months.
On the other hand Muigai told the court that he was in touch with the prosecution during the period of two months contrary to the prosecution’s position.
“It is clear that from the prosecutor’s and my own filing we were completely at cross purposes. I spoke to one of the prosecutor’s assistants (Pakhiso Mochomoko) on the telephone. We mooted the idea that he would be in Nairobi, he was in Arusha. I mooted the idea of hosting him in Nairobi. He told me the period of layover was too long to be justified, that is part of my record,” Muigai alleged.
The prosecution told the court that efforts to get Kenya to furnish it with further documents had hit a deadlock.
“Throughout the two hours of the status conference there’s been no indication from the representative of Kenya that they intend to adopt any of the measures which the prosecution has urged to honor to overcome what they say is the impossibility of providing any more material and as long as that remains the case, then we are deadlocked,” Gumbert said.
He told the court none of the materials the prosecution had received from GoK had added value to the evidence it required to use against President Kenyatta.
“We still remain in a position of speculation. It is fair to say that nothing in the 75 pages of material which we have received from the Kenyan Government makes the case against Mr. Kenyatta any stronger. We have not received material that can be regarded as critical material,” Gumpert explained.
Muigai lashed out at the prosecution for informing the court that it had evidence against Kenyatta and also carrying out investigations for over five years only to later tell the judges that it does not have adequate evidence to hold alleged charges against him.
“We have an investigation that has taken place for over five years. We have an investigation team and a prosecutor who has come to you repeatedly and said we are ready to proceed with the case because we have evidence. What Kenya is supposed to do is to cooperate to facilitate in confirmation of the availability of material,” he argued.
The Attorney General said it was confusing that the prosecution told the judges that they had critical information to prove the criminal responsibility of the president a statement which he complained has since changed.
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