NCPB theft convicts Waluke and Wakhungu to know bail fate Wednesday

Sirisia MP John Waluke and his business partner Grace Wakhungu will have to wait longer for court to rule on their application to be released on bail pending hearing and determination of an appeal against their imprisonment.

The MP is serving a 37-year sentence at Kamiti Maximum Prison while Wakhungu, 80, is at the Lang’ata Women Prison serving a 39-year sentence after they were unable to raise a combined fine of Sh2 billion.

The bail application was scheduled to be heard Friday virtually by Justice John Onyiego but it was adjourned to Wednesday next week due to the closure of the Milimani Law Courts by Chief Justice David Maraga.

Judiciary staff at the court station were directed to self-quarantine for 14 days and thereafter get tested before resumption of physical operations.

The move has crippled operations of the court since the virtual proceedings involves clerks and ICT staff to connect the judge with the lawyers and litigants.

Friday, lawyer Paul Muite said he was ready to argue the bail application because Wakhungu is in poor health and needs medical attention.

“She is 80 and has history of poor health and medical history. We want that taken into account,” said Mr Muite.

Court papers indicate that Wakhungu, the mother of Kenya Ambassador to France Judi Wakhungu, is suffering from diabetes, arthritis and hypertension. During her time in prison, she has developed athletes’ foot disease.

In their bail application, both Waluke and Wakhungu said their appeal has overwhelming chances of success as they have poked legal holes in the magistrate court’s judgment that convicted them.

On the charges of uttering false document and perjury, Mr Muite says they were proved beyond reasonable doubt and that the trial court shifted the burden of prove from the prosecution side to the defence, contrary to the Law of Evidence Act.

He says in its judgment the court stated that upon close of the defence case the prosecution sought to rebut the defence case by calling a critical witness from South Africa named as Leone Maynard.

The witness was one of the directors at Chelsea Freight Ltd, a company which the convicts claimed procured and stored the maize for them.

“The trial court dismissed the application by the DPP yet the concluded that there was proof beyond reasonable doubt. This we shall argue at appeal stage was contrary to the most basic criminal law principles,” said Mr Muite in an attack to the lower court’s judgment.

The lawyer also argues that the only witness who testified from the said company was paid by the Ethics and Anti-Corruption Commission (EACC) to testify in the case.

In regard to invoices used by the two convicts and their trading company, Erad Supplies & General Contracts Limited (Erad), the lawyer says no forensic evidence or evidence of a document examiner was tabled at the trial court.

The examiner, he says, would have established whether the invoices were falsified.

In regard to the three charges involving fraudulent acquisition of public property, Mr Muite said the trial court erred for failing to find that the sum of Sh313.3 million was paid to the accused persons pursuant to a High Court order.

“The award by the arbitrator became bidding upon the magistrate court and since all applications to set it aside were unsuccessful, the award became a judgment and an order of the High Court,” the court document read.

At the hearing of the appeal he will be arguing that there can be no case of fraudulent acquisition arising from an order, decree or judgment of the court which has not been set aside or overturned.

“If the appellants had gone to ‘riverside’ and created a fake order, this would be the case,” stated Mr Muite.

In a further attack to the judgment, Mr Muite says while the sum of Sh313.3 million paid to his clients’ trading company arose from one transaction they were all three (Waluke, Wakhungu and Erad) each fined three times of the amount.