BY SAM ALFAN.
Sirisia Member of Parliament John Walukhe and his co-accused Grace Wakhungu will know in October whether the High Court will upheld or quash sentences imposed on them over graft charges.
The duo were convicted and jailed for 67 years and 79 years respectively by trial magistrate Elizabeth Juma over a year ago. But they have appealed against the conviction and sentences arguing that they were convicted based on hearsay.
They have also argued that the sentences were very harsh. Trial Judge Esther Maina said she will deliver her judgement on October 6.
Through Senior Counsel Paul Muite and Prof Elisha Ogoya, the duo submitted that prosecution did not prove the case against them by way of evidence before the trial magistrate.
They said the prosecution relied on an invoice that was issued to Erad Supplies ltd which company had been contracted by the National Cereals Produce Board to supply 40 metric tonnes of maize.
The said invoice according to the defence was not subjected to forensic examination to ascertain whether it emanated from Chelsea Flight international.
They submitted it was incumbent upon the prosecution to prove the offence of forgery by calling a forensic expert to identify the authenticity of the document that formed the charge in which the two were convicted.
They told the judge that the conviction was in excess of the charge which the court ought to have considered given that it’s NCPB who failed to provide letters of credit as contained in the agreement.
They said the amount paid to Erad Supplies ltd was an award from an arbitrator and was enhanced by the high court order which prosecution attempted to challenge and failed.
SC Muite submitted that the prosecution sought to set aside the orders before Justice Afred Mabeya, George Odunga, Mumbi Ngugi and the same was rejected.
He said that Sh313 million paid to directors of Erad Supplies ltd did not cover the cost of storage and profits.
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.
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.
