The Director of Public Prosecutor (DPP) Noordin Haji has said the sentences meted out against Sirisia MP John Waluke and Grace Wakhungu in a multimillion shillings corruption case were lenient.
Haji wants the court to dismiss their appeal.
The two were imprisoned on June 22 last year by the Anti-corruption court after being found guilty of fraud and illegal acquisition of Sh297 million through shady deals at the National Cereals and Produce Board.
Upon conviction, the trial court imposed a combined fine of Sh2 billion. In default Wakhungu was handed a 39-year sentence while the MP was slapped with a 34-year sentence.
The DPP in his submissions has said the sentences were lawful.
“The appellants were found guilty of fraudulently acquiring a colossal amount of about 313,000,000 million of public money. As such a quantifiable amount of money was lost to them. The appellants therefore deserve both a retributive and deterrent sentence,” he said.
According to the DPP, the trial magistrate Elizabeth Juma took into consideration Waluke and Wakhungu mitigation and the fact that they were first offenders before sentencing them as well as the amount of money involved.
Haji also says there is no evidence on record that the criminal proceedings against the two were provoked and commenced to advance other gains other than promotion of fair administration of justice.
“The sentences meted against Waluke and Wakhungu were lawful and fair because they were given the option of a non-custodial sentence in terms of a fine upon consideration of all the circumstances of the case,” he says.
The DPP is asking the court to dismiss the appeal, saying the two have failed to demonstrate sufficient grounds to warrant the setting aside of the conviction and sentences.
Haji says Wakhungu in her evidence in chief, testified before the trial court that the supplier for the maize was Ropak International Ltd, while in the arbitration proceedings, she informed the arbitrator during cross-examination that the supplier for the maize was Chelsea Freights Limited.
The DPP says the fact that Wakhungu gave contradictory information speaks of lack of credibility on the part of Erad Supplies and more on the credibility of the existence of any dealings with Chelsea Freights Ltd.
The state’s case is that as a director of Erad Supplies and General Contractors, Waluke made a false invoice worth Sh114,600,000 as evidence to support a maize storage claim by Chelsea Freights.
He was also charged with fraudulently acquiring Sh297 million from the public as the cost of storing the maize, which was to be supplied to NCPB.
“On or about March 19, 2013, in Nairobi City County, being the director of Erad Supplies and General Contractors, he jointly and fraudulently acquired Sh297,386,505 purporting to be the costs of storage of 40,000 tonnes of white maize,” the charges read.
Erad had been in a long-running battle with NCPB over a botched maize supply saga.
In 2003, NCPB floated 180,000 tonnes of maize supply tender. Five companies were picked.
Hala General Trading LLC, Euroworld Commodities Limited, and Erad were contracted to supply 40,000 tonnes each, while Purma Holdings and Freba Investments got 30,000 each.
After a fallout on the payments, NCPB and Erad opted to arbitrate the issue, which then escalated to the Court of Appeal. Arbitrator Evans Thiga ruled in favour of the firm and awarded it Sh564 million as compensation for losses and storage fees.
Aggrieved, the board moved to the High Court and again its case was dismissed by Justice Leonard Njagi. NCPB went to the Court of Appeal but equally lost.
According to NCPB, the firm which Erad had contracted to supply it with maize, Ropack CC International, did not deal with maize business.
In the deal, Erad was supposed to supply 40,000 tonnes of maize, but NCPB allegedly failed to issue letters of credit to enable it import the maize.
After the ruling, Erad attached NCPB’s account held at Kenya Commercial Bank and some of its assets worth Sh297 million.
In the pending appeal, the two want their conviction and sentence set aside and quashed on grounds that the said money their company received from NCPB was legal and not out of fraud as claimed by the prosecution.
But the prosecution says it proved beyond reasonable doubts that the purported invoice was forged and it was used by the two to prove a claim for alleged storage costs in the arbitration proceedings.
The forged invoice was relied upon in the proceedings that resulted in the award made in July 2009.
Parties will highlight submissions on July 13.
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