Waluke to serve 67 years in jail after judge dismisses appeal
A judge has ordered Sirisia MP John Waluke to surrender himself to prison authorities to start serving his 67-year jail sentence or pay a fine of Sh1 billion after he was found guilty of fraud.
In a move that could signal that the Judiciary has started acting on corruption cases, Justice Esther Maina of the Anti-corruption High Court upheld Waluke’s conviction by a lower court.
His was one of several other corruption cases on which courts yesterday made major pronouncements that have sparked debate over whether they were linked to politics or the judges had finally taken the corruption bull by the horns.
The convictions also come against a backdrop of international lenders asking Kenya to take tough action on corruption as part of the negotiation journey for fiscal support.
With yesterday’s ruling, Waluke now risks losing his parliamentary seat even before he draws his first salary. Interestingly, he had attended the court session but disappeared into thin air as Grace Wakhungu, his co-accused in the case, was herded into the court’s basement cells to begin serving her 69-year jail term.
Other cases
Wakhungu is the mother of a former Cabinet Secretary who served in the first Jubilee administration.
Both Waluke and Wakhungu were ordered back to prison where they had been for almost a year until they were granted bail upon their appeal.
Yesterday, the same court also revived a Sh60 million corruption case against former Cabinet Minister Amos Kimunya, who also served as Leader of Government Business in the last administration. It also denied former Kenya Medical Research Institute (Kemri) boss, Dr Davy Koech’s petition to be released on appeal.
Though Waluke still has a chance to redeem his political career through an appeal in the Appellate Court, his imprisonment could necessitate a by-election in the event he loses an application for bail pending the outcome of his appeal.
Chapter 8 of the Constitution stipulates that a Member of the National Assembly will lose his position if he or she is sentenced to imprisonment of at least six months.
An MP also stands disqualified if found to have misused or abused a State or public office or in any way to have contravened Chapter Six of the Constitution, which has various stipulations on integrity. However, the legislator has a lifeline as long as there is any pending appeal against the sentence.
Waluke and his business partner 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 Sh297 million from the National Cereals and Produce Board (NCPB) in 2014.
Yesterday, 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 Sh1 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 Sh727,725,562 for Waluke, Sh707,725,562 for Wakhungu and Sh727,725,562 for their company, totalling an excess of Sh2 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 Sh297 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.
Civilian nature
Muite told the Judge that Erad Supplies referred the case to arbitration, seeking general and special damages for breach of contract. During the hearing of arbitration, an invoice of $1,146,000 was produced as an exhibit, to prove special damages plus interest.
The court heard that there were material inconsistencies that undermined the prosecution’s case and maintained that the business transaction was purely commercial and the claims were civil in nature, hence there was no criminal culpability.
“It is clear that what the trial court engaged in was an analysis based on a foregone conclusion or proof beyond reasonable doubt over the charges of uttering. There is no analysis of whether the other counts had been proved beyond a reasonable doubt. The judgment, therefore, cannot stand,” Muite said.
Waluke and Wakhungu were the two company directors. The third, Jacob Juma, was murdered in 2016.
In the sentence that indicted Waluke’s moral standing, the magistrate found that the two partners had taken advantage of millions of starving Kenyans to mint money. She also allowed NCPB to go after the duo’s assets and recover the lost money.
“The offences are serious and the accused persons took advantage of a dire situation where Kenyans were faced with hunger and maize was required to save Kenyans from starvation. It, therefore, calls for a deterrence sentence,” she said while saying they should be sent to prison.
