Govt owes me Sh300m, Waluke insists as he leaves jail

The Court of Appeal has granted Sirisia MP John Waluke a Sh10 million cash bail pending the hearing and determination of his appeal against a 67-year jail sentence imposed on him over a Sh297 million fraud.

This came even as Waluke insisted that the government owes him Sh300 million stemming from a 2004 maize supply deal that prosecutors claim was fake.

A three-judge bench comprising justices Asike Makhandia, Grace Ngenye and Sankale ole Kantai said keeping the MP behind bars may lead to the loss of his parliamentary seat and trigger a by-election.

"Once [Waluke] does not attend eight consecutive sittings, then he will automatically lose his seat. On that ground, we find the application for bail has merit and is allowed,” said Judge Ngenye, who read the ruling.

The judges also gave him the alternative of depositing a bond of Sh20 million. The bail terms are similar to those issued previously by the High Court.

“Assuming he is heard on appeal and he succeeds, he will not be able to capture his seat on account a by-election will have been conducted and [if he stays] in jail, he will not be eligible to stand as an MP. This will be prejudicial to him and his Sirisia people who elected him when [he was] out on bail,” the court added.

It went on: “In our view, we think that this presents unusual circumstances that could warrant considering this application to his favour.

“He is therefore released on the previous bond terms issued by the High Court of Sh10 million cash bail or Sh20 million bond terms with a surety of similar amount pending appeal.”

Maintain the High Court bail terms

The decision comes after Waluke, through his defence lawyers led by senior counsel Otiende Amollo, urged the court to maintain the High Court bail terms granted in 2020.

The lawyers said he was yet to be refunded the money.

Dr Amollo said Waluke has more than 30 arguable legal points as to the success of the appeal, adding that the MP was at risk of losing his seat, which would trigger a by-election if he was not granted bail.

Other defence lawyers are Elisha Ongoya and Melissa Ng’ania. They said that the Magistrate Court having acquitted Waluke from the main charge of uttering false invoices, there was no basis for convicting him of fraudulent acquisition of public property.

The court heard that since the acquisition of the money stemmed from the forged invoices, Waluke could not be convicted.

“The court found he did not utter any document and acquitted him. But, strangely, it convicted him of fraudulently obtaining money on the basis of uttering the document,” Dr Amollo said.

He said the money that the trial court found to have been fraudulently obtained was an award by an arbitrator and that the award was upheld by the High Court.

An appeal lodged by the National Cereals and Produce Board (NCPB) against paying the funds, he said, had led to the criminal case.

Disputing that the money paid to the MP resulted from fraud, the lawyers said the NCPB owes Waluke over Sh300 million stemming from the maize supply deal signed 19 years ago.

Dr Amollo said the NCPB in 2012 appealed against the award proposed by an arbitrator and the matter is pending in the appellate court.

He said Waluke’s company, Erad General Suppliers Ltd, had been awarded Sh600 million by an arbitrator but the NCPB paid Sh297 million and the outstanding balance of over Sh300 million is yet to be settled.

He also said the MP neither participated in the tendering for the maize supply contract nor in the arbitration proceedings.

“The basis of the case is an invoice produced before an arbitrator. It was unchallenged before an arbitrator. [The] test of authenticity must be on the forum of litigation,” Dr Amollo said.

“It was endorsed by the High Court and it cannot be invalidated using the criminal justice system. The criminal trial amounts to usurpation of the jurisdiction of the arbitrator.”