BY SAM ALFAN.
The High Court has for the second time decline to suspend a corruption case against Sirisia Member of Parliament John Walukhe and his business associate over the loss of Sh 313 Million at National Cereals and Produce Board(NCPB).
In her ruling Justice Hudwig Ong’undi decline to issue conservatory orders restraining the DPP and EACC from continuing with the prosecution of the MP, Grace Serapy Wakhungu and Erad Suppliers & General Contracts Limited but instead directed the parties to file documents before the full hearing of the petition.
While dismissing the application the Judge noted that there no obvious violation of petitioners rights to make the court drastically stay the the criminal proceedings against them.
“I decline to grant a conservatory order against the respondents (EACC, DPP and Milimani Anti- corruption chief magistrate) restraining them from continuing with the prosecution of Criminal case No.31 of 2018 against the three accused persons,” ruled justice Ong’undi.
The three filed the case court under certificate of urgency seeking orders to prohibit the commencement of the hearing of the proceedings before Milimani Chief magistrate’s anti-corruption court where they are facing several corruption related charges.
“Pending hearing and determination of the petition, a conservatory orders be and issued prohibiting the respondents from commencing the hearing of the proceedings before Anti-Corruption Court,” said Walukhe in the court papers.
On August last year they were charged with uttering a false document to an arbitrator being an invoice for $1.1 million as evidence in an arbitration between NCPB and Erad Supplies and General contracts limited.
Grace Sarapy Wakhungu, Waluke and Erad Supplies and General contracts limited has sued the National Cereals and Produce Board, Ethics and Anti-corruption Commission, the Director of Public Prosecutions, Attorney General, Chief Magistrates Court Milimani anti-corruption court.
Waluke is said to be a shareholder of Erad supplies while Wakhungu is the director of the firm.
They had urged the court to declare their unconstitutional, quash and prohibit their further prosecution before the trial court.
They are further seeking to have the entire charge sheet quashed and an order prohibiting the respondents from proceeding with their prosecution.
The accused persons are claiming that they will be prejudiced if the hearing of the Anti-Corruption case against Grace Sarapay Wakhungu, John Koyi Waluke and Erad Supplies and General Contracts Limited commences before the determination of their constitutional challenge to the charges as set out in the petition.
They further avers that the court has power to determine this petitioner and remedy the respondents denial , violation or infringement of their rights as set out and in the meantime issue a conservatory order prohibiting the commencement of the proceeding with the prosecution against.
According to the court documents, they claim that on August 12,2004, NCPB notified DPP that its bid for the supply of 40,000 metric tons of white maize had been successful after a tendering process and required Erad to confirm its acceptance, execute a formal contract and submit a performance bond for 10 per cent of the value of the contract sum.
Erad submitted the performance bond dated August 16 2004 and executed the contract on August 26. The contract was also executed by NCPB. Clause 12 of the contract contained an arbitration clause which provided for arbitration as the forum for the determination of all disputes arising out of the contract.
They further claims that NCPB failed to open a letter of credit as required in the contract to enable Erad perform its obligations as a result of which the company claimed against NCPB in arbitration, for damage and damages suffered for NCPB’s breach of contract.
The three now says that the criminal charges have been leveled only in respect to part of the sum set out in the arbitral award, judgement and decree of the High court apportioned by 1-4 respondent to storage charges.
They were charged with uttering a false document to an an arbitrator being invoice number 12215-CF -ERAD for US$ 1,146,000,00 as evidence in an arbitration between the National Cereals and Produce Board and Erad Supplies and General
Contracts Limited .
They are also charged with perjury for giving false evidence for claim for cost of storage of 40,000 metric tons if white maize, fraudulent acquisition of public property being Sh297,386,505,00 paid by the National Cereals and Produce Board on March 19 ,2013 in execution of arbitral award published by the arbitrator on July 7,2009 and and the judgement abd decree issued by the high court on February 17, 2012.
They are also accused of fraudulent acquisition of public property being Sh 13,364,671,40 and fraudulent acquisition of US$. 24,032,00 paid by National Cereals and Produce Board to Erad Supplies and General Contracts Limited .
According to documents filed in court principal witnesses lined up to testify against them are two officers of NCPB William Korir and Cornel Kiprotich as well as an investigator working with the respondents Kipsang Sambai.