- Judge Ngugi said the state had a proper foundation to mount the prosecution.
- Duo had already been tried by a magistrate's court and found to have a case to answer.
Image: FILE
Sirisia MP John Waluke and Grace Wakhungu have failed in their attempt to stop their trial over a multi-million-shilling fraud case involving the National Cereals and Produce Board.
Dismissing the application by the two, Justice Mumbi Ngugi said it was without merit and that the state had a proper foundation to mount the prosecution. She issued the judgment on May 21.
The judge said the duo's application had been overtaken by events because they had already been tried by a magistrate's court and found to have a case to answer. This means the criminal trial against the two is at an advanced stage.
“If storage charges were based on a fraudulent document it may well be that no maize had been ordered and the award in respect to the alleged loss of profit 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 a prosecution,” Ngugi said.
The two were put on their defense by magistrate Elizabeth Juma on May 21 last year.
The case involves Wakhungu, a director of Erad, and MP Walukhe who is accused of uttering a false document.
It is alleged that on February 24, 2009, being the director of Erad, Walukhe knowingly and fraudulently uttered a false invoice for Sh114 million to be used as evidence in the arbitration of dispute between his company and the NCPB.
The alleged uttered invoice was to be used to support a claim for cost of storage of 40,000 tonnes of maize that was incurred by Chelsea Freight.
However even before their prosecution, the two moved to court seeking to stop the Director of Public Prosecutions.
They said the report recommending their prosecution violated their constitutional rights because the dispute was already determined in arbitration.
Secondly the report, they said, was made without affording them an opportunity to be heard and to cross-examine witnesses.
They said the criminal case against them related to a contractual relationship with NCPB and that the dispute was determined in their favour in an arbitration.
They believed they had been condemned to stand trial for a civil dispute.
Also, they accused the DPP and EACC of acting under instructions of Parliament to pursue criminal prosecution against them.
The sums received by the two were alleged to have been paid in execution of the arbitration award.
The NCPB had breached the contract and in accordance with contract the two had referred the matter to arbitration and an award made in their favour, they argue.
Despite the appeal, the court declined to set aside the arbitration award which meant NCPB had to pay.
Consequently, the National Assembly’s Public Investment Committee conducted an inquiry into the contract, the arbitral award and the execution.
A report recommending investigation of Waluke and Wakhungu was made to the Ethics and Anti-Corruption Commission.
The EACC was asked to investigate their alleged fraudulent acquisition of public property and whether or not they uttered false documents to tender for maize at the NCPB.
Edited by Henry Makori