The Kenyan Court of Appeal has granted Sirisia lawmaker John Waluke a Sh10 million cash bail pending hearing and determination of his appeal against the 67-year jail sentence imposed over a Sh 297 million fraud.

This is a significant development in the case, as it now gives Mr. Waluke a chance to seek reduction of his sentence or a complete acquittal on appeal. This is a positive development for the rule of law in Kenya, and we hope that justice will be served in this case.

In his ruling, Judge Ngenye stated that the continued incarceration of Waluke would automatically lead to the loss of his Parliamentary seat. He explained that once Waluke does not attend eight consecutive sittings, he would automatically lose his seat. On that basis, the Judge found that the application for bail had merit and allowed it.

The presiding judge also gave him an alternative of depositing a bond of Sh 20 million. However, the bail terms are still quite similar to those that were issued by the High Court previously. In light of these new developments, it seems that the accused will have to take care to fulfil his side of the bargain in order to be set free on bail.

Assuming he is heard on appeal and he succeeds, he will not be able to capture his seat on account of a by-election having been conducted and him being in jail will not be eligible to stand as an MP. This will be prejudicial to him and his Sirisia people who elected him when out on bail, said the court.

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

The lawyers for John Waluke, the member of parliament for Sirisia constituency, said he was yet to be refunded the money that was paid for his bail. 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 and triggering a by-election should he not be granted bail.

Public property

Other defence lawyers, Elisha Ongoya and Melissa Ng’ania, said that the magistrate court, having acquitted Waluke from the main charge of uttering false invoices, there was no basis for convicting him for fraudulent acquisition of public property. They argued that the magistrate court had already found that Waluke was not guilty of uttering false invoices, and therefore there was no evidence that he had committed fraud.

The court heard that since the acquisition of the funds stemmed from the forged invoices, Waluke could not be convicted of fraud. Dr Amollo argued that Waluke had not uttered any document and should therefore be acquitted, but the court convicted him of fraudulently obtaining money on the basis of uttering the document.

In a statement, Otiende Amollo said that the money that the trial court had found to have been fraudulently obtained was actually an award from an arbitrator. He said that the award had been upheld by the High Court, and that therefore the trial court’s ruling was incorrect.

The lawyer stated that the National Cereals and Produce Board (NCPB) had lodged an appeal against the funds that had led to the criminal case against it. The lawyer argued that the Board had been denied due process and that the case against it was without merit.

The lawyers representing John Waluke, who was recently convicted of corruption in relation to a maize supply deal, have disputed that the money paid to the MP resulted from fraud. They say that the National Cereals and Produce Board (NCPB) owes Waluke over Sh 300 million stemming from the deal, which was signed 19 years ago.

Dr Amollo, one of the lawyers representing Waluke, said that there is an appeal filed by NCPB in 2012 over the arbitral award and the matter is pending determination at the Appellate court.

According to a report by the Daily Nation, Waluke’s company, Erad General Suppliers Ltd, was awarded Sh600 million by an arbitrator but NCPB paid Sh297 million and the outstanding balance of over Sh300 million is yet to be settled. Waluke has since blamed the NCPB for not paying the full amount, saying that the organisation is “insolvent and unable to meet its financial obligations.”

He further stated that the MP neither participated in the tendering for the maize supply contract nor in the arbitration proceedings. While it is not entirely clear what the MP’s involvement in the tendering process would have entailed, it seems that Amollo is suggesting that the MP had no hand in securing the contract for himself. This is an important distinction, as it suggests that the MP did not use his position of power to line his own pockets. rather, he was simply doing his job as a representative of the people.

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

The criminal trial in question is therefore an improper attempt to overturn a decision that was properly made in arbitration, according to Dr Amollo. This is not allowed, and the High Court’s endorsement of the invoice means that the criminal trial must be quashed.