It's 39 years or over Sh1.5bn for Waluke, Wakhungu

Years of impunity, bribery and crookedness ended Thursday with the jailing of Sirisia MP John Waluke, ending one of the most dramatic corruption cases in the country’s history.

Mr Waluke and his co-accused Grace Wakhungu will pay a combined fine of about Sh2 billion or serve 39 years in prison after they were found guilty of defrauding a State agency. The sentences will run consecutively.

They were whisked to prison to begin their jail term Thursday evening after the court declined to suspend their sentence.

Sentencing the two, Chief Magistrate Elizabeth Juma said the offence they committed was serious. She added that the two and their company took advantage of a dire situation, as Kenya faced a drought, to defraud the National Cereals and Produce Board.

“The court agrees that being first offenders and their age, they deserve leniency,” she said, adding that she appreciated the roles they play in society.

But the magistrate said there were aspects in the Anti-Corruption and Economic Crimes Act that are mandatory and the court had no option but to pass a sentence as prescribed in the law. But where the court has discretion, Ms Juma said, she would exercise it judiciously.

On the first count of uttering a false document, the court directed Ms Wakhungu to pay a fine of Sh100,000 or serve one year in prison. She was further directed to pay another Sh100,000 fine for perjury or serve another year in jail.

Mr Waluke and his firm Erad Supplies were directed to pay a fine of Sh727 million each or serve the jail term for receiving a fraudulent payment from NCPB, while Ms Wakhungu will have to part with Sh707 million or serve the jail term.

Mr Waluke becomes the fourth “big fish” to be tried and jailed for economic crimes in over two decades, after former Nairobi City town clerk John Gakuo, former Local Government permanent secretary  Sammy Kirui and former nominated senator Joy Gwendo.

The trials, which a few years ago were almost impossible to conclude, come after intensified efforts to reform the justice system, especially at the Anti-Corruption Court in Milimani, whose officer, Ms  Juma, made the groundbreaking ruling Thursday.

Ms Juma, who has worked in the Judiciary for the past 17 years, serving in various courts, among them Kitui, Nyeri, Murang’a and Kibera, said the courts have to serve justice “according to what the law said’’. She maintained that the Anti-Corruption and Economic Crimes Act is clear on penalties for economic crimes.

The jail terms also marked the first big victory for anti-corruption fighters, Director of Public Prosecutions (DPP) Noordin Haji and the Ethics and Anti-Corruption Commission (EACC) chief executive Twalib Mbarak.

The Waluke case was the first judgment in a corruption case filed by DPP Haji to be heard and finalised. Mr Haji was sworn in as the DPP in March 2018.

It was also another rare victory for the EACC, which appears to have awoken from a slumber after the appointment of Mr Mbarak in January last year. The case was also the first corruption case in the history of the country to be tried and concluded in less than two years.

The faces of some of Mr Waluke’s fellow MPs and spouses in court somewhat reassured him. But weary, he was perhaps pondering what awaited him after spending three days in police custody.

In mitigation, the MP said through his lawyers that he is sick and had people who depended on him, including his 80-year-old mother.

He said he was remorseful and pleaded for a non-custodial sentence. A custodial sentence, his lawyers said, was akin to sentencing him to a slow death.

Although known for violent and abrasive campaigns, Mr Waluke’s lawyers portrayed the MP as a family man and a peacemaker.

“This is a war veteran who in other jurisdictions is regarded highly. He rose from a constable to a major, evading bullets and bombs. He is now asking for mercy,” lawyer Danson Omari pleaded, adding that it was also imperative that the court spare his client a custodial jail term so as to save him from contacting the coronavirus behind bars.

Mr Omari added that Mr Waluke deserved leniency as he was among the soldiers who saved the life of President Daniel Moi during the 1982 coup.

Ms Wakhungu did not look any better. She sat quietly as her team of lawyers tried to convince the court that she should be granted a non-custodial sentence.

Ms Wakhungu, a 79-year-old retired civil servant, said that after leaving her teaching job, she joined Kenya Reinsurance, where she rose to the position of general manager before joining the banking industry as a banker at Consolidated Bank until her retirement 1997.

Ms Wakhungu said she regretted the offence and also pleaded for a non-custodial sentence.

The two, directors of Erad Supplies & General Contractors, were found guilty of receiving money from NCPB for supplying air to the State agency.

They claimed that they imported the maize, which was meant for the Strategic Grain Reserve, from Ethiopia. And before arriving in Ethiopia, the maize had been stored in South Africa, making them incur more losses.

In the tender, five firms were in the contract to supply some 180,000 metric tonnes of maize. But out of the five, four were issued with letters of credit. Erad’s letter of credit was not opened. Eventually, only two firms supplied the maize, which was meant to mitigate the effects of a drought.

And after filing the case before an arbitrator, the firm was awarded damages for loss of profit, cost of storage and interest.

The drama started when Erad Suppliers took NCPB to court demanding payment of maize supplied and for storage of the maize, yet they had not supplied any maize.

On July 7, 2009, an arbitration ruling was made in favour of Erad Supplies, ordering NCPB to pay the firm or risk the seizure and auctioning of its properties.

Following the arbitration award, the accounts of NCPB and its premises and property were raided and property worth millions of shillings confiscated and shared.

Several NCPB motor vehicles and office equipment were attached and proclaimed.