BY SAM ALFAN.
Fraud convict Grace Wakhungu has filed an application at the Court of Appeal seeking to be released on bond pending her appeal.
She wants the Appellate Court to release her as they await the hearing and determination of their appeal, challenging the decision of the High Court upholding the decision to jail her for 67 years for fraudulent payment for maize that was never supplied decades ago.
The 82-year Wakhungu says in the application that her health is deteriorating and susceptible to diseases.
Through Senior Counsel Paul Muite, Wakhungu argues that their appeal has overwhelming chances of success.
This is because Justice Esther Maina found that the case had been established beyond reasonable doubt notwithstanding that a key witness had admittedly not been interrogated. She also says another key witness wrote his statement but failed to testify during the trial.
She further argue that the judge found contrary to evidence on record that an exhibit presented to court, the subject of the alleged uttering offence in the trial was not genuine in the absence of a report of a forensic document examiner.
She fault judge Maina for failing independently asses whether elements of perjury and uttering a false documents contrary to section 353,356 and 108, 110 of the penaal code had been satisfied.
“The judge failed to determine whether the element of perjury nd uttering a false document contrary to section 353,356 and 108, 110 had been sat3or whether the elements of fraudulent acquisition had been met”, they adds.
She also adds that despite decision by Justice George Odunga, Justice Ngagi and Justice Alfred Mabeya affirming the Arbitral award that the fact that the decrees pursued pursuant to which the payments were made to the applicant were payable.
“The lower court failed to distinguish between payments made pursuant to undisputed loss of profit claim viz payment in respect of storage charges that had been impugned via the charge sheet in Milimani Chief Magistrate court case No. 31 of 2018,” the adds.
Lawyer Muite argued that High court Anti-Corruption Division Judge failed to subject the evidence on record to a fresh and exhaustive re-evaluation, analysis and re-assessment and to draw her own conclusions and instead, considered the prosecution case in isolation thereby taking a very narrow and constricted view of evidence on record.
The veteran lawyer faulted Justice Maina for entirely ignoring the grounds of appeal that had been set out in the memorandum of appeal in their entirety and proceeded to determine the appeal on her terms.
Wakhungu also question whether the court determined if the late businessman Jacob Juma was an official of the company under section 23 of the penal code and if he received Sh113 million from the total of money paid to the company before the trial court.
She further question whether the high court established that a claim of fraudulent acquisition can arise from payment made pursuant to a decree of a coury and given that the total amount received by the company was Sh313 million whether the sentunder section 48(b) could be more than Sh626 million.
