Waluke loses bid to halt fraud case

The High Court has declined to stop a case agaisnt Sirisia MP John Waluke and businesswoman Grace Wakhungu for fraudulently receiving more than ShSh297 million from a government agency.

Justice Mumbi Ngugi said the orders sought by Mr Waluke and Ms Wakhungu of stopping their trial were overtaken by events since the case has already been heard and is now pending a judgment, which was scheduled to be issued Wednesday.

However, trial magistrate Elizabeth Juma adjourned delivery of the judgment to June 22, 2020 since the accused persons were not present in court.

In her ruling, Justice Ngugi said issuing the orders sought would be an exercise in futility since the court cannot stop investigations or prosecutions that have already been undertaken and completed.

The judge noted that at the centre of dispute is an invoice in respect to storage charges for 40 tonnes of maize and on the basis of which the accused persons were paid US dollars 1,146,000 by the National Cereals and Produce Board (NCPB).

"This is one of the documents that was, I believe, at issue in the charges against the petitioners before the trial court. It is an issue that the petitioners have not responded to at all, maintaining only that there was an arbitral award in their favour," said Justice Ngugi.

She added that if storage charges were based on a fraudulent document, it means no maize had been ordered and the award for an alleged loss of profits may also have been unmerited and therefore a fraudulent acquisition of public funds.

"In the circumstances, this case does not qualify as one of the clear cases in which the court can be satisfied that the prosecution does not have a proper legal and factual foundation to mount prosecution," said justice Ngugi.

The petitioners also wanted court to quash a report of the parliamentary Public Investments Committee (PIC) and the recommendations made in October 2013 before being adopted by the House in November the same year.

But clerk of the National Assembly Micheal Sialai told court that the petition was in bad faith given that the petitioners failed to challenge the recommendations at parliament through a motion. He also questioned why they remained quite from 2013 to challenge the PIC recommendation in 2019 through a court petition.

PIC recommended to the Ethics and Anti-corruption Commission (EACC) to conduct further investigations against Mr Waluke and the businesswoman following a special audit that was conducted on NCPB by the Auditor General.

Mr Salai said the audit came forth due to concerns on how NCPB had handled the issue of importation of white maize following shortage of white maize and drought in the country in 2004.

He added that Mr Waluke was a member of PIC and the committee gave him an opportunity to be heard.

Mr Waluke, Ms Wakhungu and  their trading firm Erad Suppliers and General Contractors Ltd are accused of receiving money from the National Cereals and Produce Board after falsifying documents.

They are further accused of presenting a false invoice of Sh115,072,725 on February 24, 2009 as evidence in the arbitration dispute between the company and NCPB.

They purported that the invoice was to support the cost of storage of 40,000 metric tonnes of white maize, which was allegedly incurred by Chelsea Freight.

It is alleged that they further obtained Sh297,386,505 on March 19, 2013 for loss of profit and interest allegedly incurred by Chelsea Freight.

In June 2013, they got Sh13,364,671 purporting to be the cost of storage for the maize.

On the last count, they are accused of obtaining Sh2,413,113.