Sirisia Member of Parliament John Waluke has been released on a cash bail of Ksh10 million pending an appeal of his 67-year jail sentence in a multimillion-shilling corruption case.
In a ruling delivered by Court of Appeal judges Asike Makhandia, Grace Ngenye and Sankale ole Kantai, the court allowed Waluke's application to be released on bail terms pending the hearing of his appeal against the jail term imposed by the anti-corruption court.
"We find that the continued incarceration of Waluke in jail will automatically lead to the loss of his Parliamentary seat. Because once you do not seat for eight consecutive seats then automatically you lose your seat," judge Ngenye who read the ruling stated.
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"Assuming that he is heard on appeal and he succeeds he will not be able to capture his seat on account that a by-election will have 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. In our view, we think that this presents circumstances that could warrant considering this application to his favour," he said.
Consequently, the court ordered that Waluke be released on his previous cash bail of Ksh10 million or a bond of Ksh20 million with one surety of a similar amount pending the hearing and determination of the appeal.
The decision comes after Waluke through his defence lawyers led by Dr Otiende Amollo, a senior counsel, urged the court to maintain the bail terms of Ksh10 million, that Waluke was granted by the High Court in 2020. The lawyers said he is yet to be refunded the money.
Omollo said they have more than 30 arguable legal points as to the success of the appeal adding that the MP is at risk of losing his seat and triggering a by-election should he not be granted bail. Other defence lawyers were Elisha Ongoya and Melissa Ng’ania.
Waluke thrown to jail
Waluke and his business partner Grace Wakhungu were thrown back to jail in October after the High Court dismissed their appeals in the Ksh297 maize fraud case.
The duo was convicted in 2020 for forgery and fraudulently acquiring Ksh297 million from the National Cereals and Produce Board (NCPB) in 2014.
The lawyers 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.
The court heard that since the acquisition of the funds stemmed from the forged invoices, then Waluke could not be convicted.
“The court found he did not utter any document and acquitted him. But strangely 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.
The lawyer stated that there was an appeal lodged by NCPB in 2012 over the award and the matter is pending determination. He said the company had been awarded Ksh600 million but NCPB paid Ksh297 million and the outstanding balance of over Ksh300 million is yet to be settled.
He further stated that 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. 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,” Amollo said.
