Authors: JAPHETH OGILA AND MERCY ASAMBA
AfricaPress-Kenya: Sirisia Member of Parliament John Waluke (pictured above) and his co-accused Grace Wakhungu have been slapped with Sh594 million fine or a jail term of seven years upon default after they were found guilty in the National Cereals and Produce Board (NCPB) maize scandal.
The duo, who were sentenced at Milimani Law Courts on Thursday, will now have to contest the ruling at the High Court after their defence team unsuccessfully appealed for suspension of the sentence.Chief Magistrate Elizabeth Juma found them guilty of five counts of fraud, after which she meted punishment on them for each offence.
In the first count, the convicts were ordered to pay Sh100,000 fine, failure to which they face one-year imprisonment. In count number two, they were ordered to pay Sh500,000, failure to which they will be jailed for a period of 3 years. In another count, the duo and Erad company have been slapped with Sh26 million of which they are to be jailed for 7 years upon default.
In count four, the convicts are to pay Sh500,000 and option of 3 years’ jail upon default.Mrs Wakhungu will also pay Sh80 million upon which she faces possible seven-year jail term if she defaults. Mr Waluke, on the other hand, will pay at least Sh100 million failure to which he will be jailed for seven years.
The court ordered convicts and the company to also pay double the amount of money the NCPB irregularly paid to them. Upon payment of the fines, the NCPB will recoup the Sh313 million it lost in the dubious payment as the rest will cater for the fines.
The defence team, led by lawyer Danstan Omari appealed the ruling urging the court to suspend the sentence pending appeals. However, the magistrate ruled against their favour. She said the court had made a decision which was final.“On the issue of bond and bond terms, the court has already made a ruling, which was made on June 22,”
“The court has already made up its mind on the case. If it had any iota of doubt that the accused are innocent it would have acquitted them,” she said. The Chief Magistrate directed the convicted persons to seek legal redress at the High Court.The court on Monday found two guilty of receiving Sh297 million in a maize deal from National Cereals and Produce Board (NCPB) through Erad Supplies and General Contractors.
They are the co-directors of Erad Supplies and General Contractors, a company also linked to the late businessman Jacob Juma who was assassinated in May 2016.The Sirisia legislator was being represented by a group of lawyers comprising Evans Ondieki, Samson Nyamberi, Cliff Ombeta and Danstan Omari, while Wakhungu was represented by Duncan Okubasu.
After it became apparent that the accused persons were staring at a possible custodial sentence, the defence lawyers took to the floor to argue out the cases for lenient sentences. In turns, the lawyers put their arguments forward for benevolent punishments, revisiting the ‘good deeds’ of the accused persons and trying to justify their pleas.
Lawyers arguments
Wakhungu’s lawyer Duncan Okubasu had urged the court to consider the age and character of the accused person during the sentencing. He is said that it was Wakhungu’s first encounter with the criminal justice system.That was before Waluke’s lawyers hit the floor with persuasive and comical arguments as they pleaded for lenient sentencing.
They told the court that their client had no criminal history and had family responsibilities, both immediate and extended, and so they should be lenient in his sentencing.They argued that a non-custodial sentence would allow the MP to finish his term as per the law.“We are begging today that you give us the most lenient sentence,” pleaded lawyer Cliff Ombeta.
Ombeta stated that his client had attended the court proceedings religiously and that was part of the reason to be handed a lenient punishment. Ombeta while arguing out the case in favour of Mr Waluke highlighted the legislator’s track record while serving in the army arguing that only a good man would scale to the position of a Major.
He pleaded that giving the MP a non-custodial punishment would mean a positive change to his family and Sirisia constituents.“You will be having a good man going home to talk to not just his family but the constituency at hand,” Ombeta pleaded.“People of Sirisia hold him with high esteem, he is a father figure to many and that he was a God-fearing man.”
As for lawyer Danstan Omari, the MP’s case was different because he had served the country with honour.“War veterans who fought in the army are accorded some special considerations,” Omari said.
The lawyer argued that with the surge infection of the coronavirus forcing decongestion at the prison facilities, the legislator’s life would be endangered if he were imprisoned.“He is among the vulnerable group. If he goes to prison, the risk will be twice. He should not be condemned to the slow death,” he argued.
Omari revisited how Waluke played a role in saving the administration of former President Daniel Moi in 1982. He said that Waluke eulogy would paint a picture of a hero who sowed peace in the country, thus, he was worth special treatment in lenient sentencing.
Lawyer Evans Ondieki would then rise on his feet by quoting several biblical verses to persuade the court to hand the accused person lighter sentences saying that the ‘law can sometimes be unfair.’
He argued that the smooth running of the case had benefitted government agencies such as Ethics and Anti-Corruption Commission, Office of the Director of Public Prosecutions and the courts due to the co-operation of Mr Waluke. They said it was now the turn of the courts to grant the MP a lenient sentence for being submissive.
Ondieki pleaded with the court to remand the accused persons at Kileleshwa Police Station so that it could have presentencing evidence in the case to make a determination of the sentence.
The prosecutors however objected to the pleas of the defence arguing that the Economic Crimes Act was clear on the penalties for such offenders, which is Sh1 million fine or imprisonment for not more than 10 years or both. She urged the court to balance the interest of the public in regards to making the sentence.
The prosecutors argued that the duo was no longer accused persons but convicts. That Mr Waluke had betrayed the trust of the public that voted him into office, hence, arguments for non-custodial sentence should not arise.
Found guilty
The 59-year-old MP was found guilty of fraud involving Sh297 million in a maize deal with the National Cereals and Produce Board (NCPB) on Monday. He was remanded in police custody pending sentencing that was scheduled for today after he was convicted by Milimani anti-corruption court magistrate Elizabeth Juma.Grace Wakhungu, who was a co-director with Waluke at Erad Supplies and General Contractors – the firm involved in the deal – was also indicted alongside the legislator.
The magistrate found that the Director of Public Prosecutions (DPP) had demonstrated the duo had illegally obtained taxpayers’ cash through the cereals board.The court heard that Waluke and Wakhungu made the contested invoice in support of costs allegedly incurred from storing 40,000 tonnes of maize.
“The court finds there was a fraud and the accused acquired money by false pretences. The accused persons will be remanded at Kileleshwa Police Station pending their sentencing on June 25,” the court ruled.
The court, however, dismissed a claim that Waluke and Wakhungu altered false documents.In the case, the State alleged that as a director of Erad Supplies and General Contractors Waluke made a false invoice worth Sh114,600,000 as evidence to support a maize storage claim by Chelsea Freights.
The charges read that: “On or about March 19, 2013, in Nairobi City County, being the director of Erad Supplies and General Contractors, together with Erad Supplies and General Contractors jointly and fraudulently acquired Sh297,386,505 purporting to be the costs of storage of 40,000 tonnes of white maize, guilty or not guilty?”
