‘Ni case ya fitina’ – Raila calls for acquittal of incarcerated MP John Waluke

Azimio la Umoja - One Kenya coalition leader Raila Odinga has faulted the Judiciary for the imprisonment of Sirisia Member of Parliament John Waluke over fraud.

Waluke and his business partner Grace Wakhungu were thrown back to jail early this month after the High Court dismissed their appeals in the Ksh297 maize fraud case.

Speaking during the burial ceremony of the mother of Kakamega Governor Fernandes Barasa on Monday, October 31, Raila claimed Waluke's 67-year jail sentence was unfair.

He said the case against Waluke was civil in nature and should not have attracted such a "punitive sentence".

Raila claimed that the legislator's case was less serious compared to high-profile matters against senior state officers withdrawn by the Director of Public Prosecutions Noordin Haji recently.

Just like other leaders who have more serious cases in court, Raila said, Waluke deserves a fair hearing and treatment.

He demanded that the Court of Appeal grants Waluke bail before the case is eventually 'thrown out'.

"Watu ambo walikuwa wameshtakiwa na mauaji sasa wanasamehewa. Wengine iko kesi ya mauaji ambayo bado iko active anapitishwa anakuwa waziri. Mwingine wanasema kesi yake ya Ksh12 billion alikua ameekelewa tu. Lakini kwa upande mwingine huku watu wetu wananyanyaswa.

"Sirisia MP Hon. John Waluke kesi yake ilikuwa ni kama civil case manake yeye walidai pesa na wakalipwa. Badala ya kusema hiyo pesa ulilipwa kwa njia si nzuri rudisha anafungwa miaka 67. Si ni fitina? Hiyo ni haki kweli? Tunataka Waluke apewe bond alafu hiyo kesi itupiliwe mbali," Raila said.

Loosely translated, "We are seeing some people who were facing murder charges being freed. Some have active murder cases but they have been allowed to serve in the Cabinet. They are also saying the other one who was facing Ksh12 billion graft case is innocent but on the other hand, our people are being punished."

"Sirisia MP John Waluke's case was more of a civil matter because he had claimed some payment and he was paid. Instead of telling him to return the money paid irregularly you sentence him to 67 years in jail. Is it fair?"

Raila was referring to former Malindi MP Aisha Jumwa, who recently had Ksh19 million graft charges against her dropped for lack of sufficient evidence. Jumwa, who is also facing a murder case, was recently sworn in as Cabinet Secretary for Public Service and Gender.

Deputy President Rigathi Gachagua could also join the growing list of high-profile Kenyans whose cases have been dropped since President William Ruto assumed office last month after a senior investigator in his Ksh7.3 billion case revealed that he was compelled to recommend charges against the former Mathira MP.

Waluke and Wakhungu appeal

Waluke and Wakhungu had moved to the High Court challenging a lower court’s decision to sentence them to 67 and 69 years respectively for forgery and fraudulently acquiring Ksh297 million from the National Cereals and Produce Board (NCPB) in 2014.

However, Justice Maina threw out their appeal, saying the two were properly convicted and the more than 60 years they are required to serve in jail are not excessive.

Wakhungu is 81 years old while Waluke is about 57.

“I find that the sentences were not excessive. They are within the law. Therefore, the conviction and sentences are affirmed,” Justice Maina ruled.

She also dismissed the appeal by the two partners saying the prosecution proved the charges against them, having found them guilty of fraudulently acquiring millions of shillings from a government agency for maize that they never supplied.

“The invoice upon which the claim for payment was based was a forgery. Waluke presented it to an arbitrator knowing very well that Erad Supplies and General Contractors Limited had no dealings with the maker of the invoice (Chelsea Freight Ltd) and as a result, it was paid the sum of money by a public body,” said Justice Maina while upholding the conviction.

She, however, ordered Waluke and Wakhungu to pay the more than Ksh1 billion fine each, which was imposed on them by the lower court if they are to avoid serving the sentence.

In her sentence, Chief magistrate Elizabeth Juma had granted an alternative fine of Ksh727,725,562 for Waluke, Ksh707,725,562 for Wakhungu and Ksh727,725,562 for their company, totalling an excess of Ksh2 billion.

Waluke and Wakhungu had appealed against their sentence, saying the payments made arose from an arbitration, not a procurement award.

Their lawyers, Paul Muite and Elisha Ongoya, had told Justice Maina that the award had never been overturned and that they had only received a fraction of the payment.

“There can be no case of fraudulent acquisition arising from an order of the court, which has not been set aside or overturned,” Muite had told the court.

The State agency had breached a contract for the supply of maize, which resulted in the arbitrator making an award of Ksh297 million on account of loss of profit and storage costs due to Erad.

The two and their firm, Erad Supplies & General Contractors, received over Sh313 million from NCPB for fake claims, in an alleged botched deal to supply some 40,000 metric tonnes to the government. The offences were committed in 2004.

They had argued that after failing to set aside the judgment, NCPB commenced parallel proceedings before the EACC, alleging that the invoice upon which the claim for storage costs was made was forged.