BY SAM ALFAN.
Sirisia MP John Waluke and a sister of former vice president Moody Awori, Grace Wakhungu are now free after the court of appeal quashed 67 years imprisonment imposed by a Nairobi court.
The two were found guilty of stealing 313 million from the National Cereals and Produce Board and ordered to pay a fine of more than Sh2 billion or serve the multiple jail terms.
But the can now rest easy after the court of appeal quashed their conviction and sentences.
“Ultimately, we are satisfied that the appellants have made a case to warrant us to allow the appeal. The appeal is accordingly allowed, and the convictions and sentences imposed on the appellants are set aside. The appellants shall forthwith be set at liberty unless otherwise lawfully held,” Judges Asike Makhandia and Patrick Kiage ruled.
Wakhungu and Waluke spent three months in jail but were freed on bail, pending the determination of their appeals.
Justices Kiage and Mukhandia faulted the high court for failing to re-analyze and re-evaluate the evidence tendered in the trial court as required by the law.
They said being the first appeal, the high court had a duty to analyze and re-evaluate afresh all the evidence produced before the trial court and reach its own independent conclusion.
The judges further said that the trial court was bound the decisions of the High Court as pertains to the transaction.
And given that the criminal case was as a result of payment sanctioned by the courts, the issue of allegedly forged invoice was extensively addressed and resolved.
“It does appear to us that after NCPB failed all the way to impugn the award in civil proceedings, turned to EACC to invoke criminal sanctions against the appellants to achieve the very purpose it had been denied in civil proceedings going by the import of the sentences imposed,” the judges said.
The court said the move was the worst form of abuse of the criminal process.
During the hearing senior counsel Paul Muite for Wakhungu said the money they are alleged to have stolen were payment for damages for loss of profits and storage charges.
SC Muite further added that no handwriting expert was called by the prosecution and evidence was that the invoice in question indeed emanated from Chelsea Freight and could have been issued by an employee or director of Chelsea Freight.
Despite Chelsea Director having given a written statement, he was never called as a witness, he said.
SC Muite added that the Magistrate’s Court and the Criminal appeal Division of the High Court gravely erred in ascribing the amount paid of Sh313, million, which was not even enough to cover the storage charges, to storage charges instead of damages for loss of business which was never in dispute.
NCPB failed to issue Erad Suppliers Ltd with Letters of Credit in breach of the duly executed contract between the parties and therefore in breach of that contract.
He said had the Magistrate’s Court and the Criminal Division of the High Court appreciated and applied the Constitutional presumption of innocence, the court would have been acquitted.
