BY SAM ALFAN.
Sirisia MP John Waluke and his business partner Grace Wakhungu have questioned the legality of sentencing them to jail for a total of 79 years arguing that the judgment was based on extraneous factors.
Through Senior Counsel Paul Muite the duo told Justice Esther Maina there was no criminal culpability on their part because the matter was civil in nature.
He said the payments they were accused of fraudulently receiving were based on an arbitration award, which has never been overturned.
Muite argued that the Sh313 million paid to them payments were sanctioned by the High Court and attempts by National Cereals and Produce Board to overturn the decision was rejected by the Court of Appeal, hence the decision remains unchallenged.
He said NCPB filed parallel proceedings with the Ethics and Anti-Corruption Commission (EACC) after failing to overturn the decision.
“We have read the proceedings and observed, first that the accused persons had identified the maize for importation as there was a requirement to supply maize and they had to secure the maize and there is no anomaly arising from this. Secondly and most importantly we have re-read the proceedings and we find no place where witnesses, including the accused testified that they had acquired the imported maize or stored it,” Muite submitted.
“The sum paid about Sh313,000,000 is less than the “loss of profits” claim and interest on loss of profit by Sh. 2,000,000 In essence, the money the accused are claimed to have fraudulently acquired is yet to be paid. This is because, though the decree did not specify what amounts were for storage, interest or loss of profit, the entire amount received is less than the loss of profit part which was not a subject of the criminal case,” he submitted.
He said the trial court cited very extraneous consideration in finding that the offence of fraudulent acquisition had been committed after dismissing the charges of uttering false document and perjury against the company.
He said that National Cereals and Produce Board (NCB) was in breach of contract entered between it and Erad Supplies ltd as the state corporation did not the company with letters of credit.
Muite urged the trial Judge to find and hold that the conviction was unlawful, illegal and should be set aside.
Wakhungu and Walukhe were convicted and jailed by trial magistrate Elizabeth Juma on account of fraudulently receiving payment of Sh300 million for supply of maize.
The two were released on bail after spending about three months in prison after failing to pay the option of fines which run into billions.