The High Court has declined to issue orders stopping the criminal trial of the mother to former CS Judy Wakhungu over the National Cereals Produce Board (NCPB) scam.
Anti-corruption High Court judge Hedwig Ong’undi said Grace Wakhungu had sufficient time to file the application stopping the trial but waited till the trial commenced.
“I have considered the application and declined to grant any order for the reason that the petitioners had all the time to file this application and chose to file it today when the hearing before the trial court commences on January 21,” she said.
She directed Grace Wakhungu and and Sirisia MP John Waluke to serve NCPB, Ethics and Anti-Corruption Commission, the Director of Public Prosecutions and the Attorney General with its pleading for hearing on Thursday.
Grace, Waluke, and Erad Supplies and General Contracts filed an application seeking an order prohibiting the state agencies from commencing or proceeding with the criminal case. They also seek to have the entire charge sheet quashed. Waluke is a shareholder of Erad. The criminal case has been fixed for hearing on January 21, and 31. Principal witnesses lined up to testify against them are two officers of NCPB William Korir and Cornel Kiprotich as well as an investigator being Kipsang Sambai.
Grace through Lawyer Nelson Havi says on August 12, 2004, NCPB notified the DPP that its bid for the supply of 40,000 tonnes of white maize had been successful after a tendering process and required Erad to confirm its acceptance, execute a formal contract and submit a performance bond for 10 per cent of the value of the contract sum.
Erad submitted the performance bond and executed the contract on August 26. The contract was also executed by NCPB. Clause 12 of the contract contained an arbitration clause which provided for arbitration as the forum for the determination of all disputes arising out of the contract.
But NCPB failed to open a letter of credit as required in the contract to enable Erad to perform its obligations as a result of which Erad claimed against NCPB in arbitration, for damages suffered for NCPB’s breach of contract.
The arbitration was determined in favour of Erad as against NCPB in an arbitral award published on July 2, 2009. Erad was awarded damages of Sh315 million ($3.1 million), Sh193 million ($1.9 million) on account of loss of profit and Sh111 million ($ 1.1 million) on account of storage costs due to the supplier, interest at 12 per cent per annum with effect from October 27, 2004.
On October 2009, NCPB applied to high court to set aside the arbitral award the application was based on the ground that Erad did not have any maize stored with Chelsea Freight, to warrant the award on account of storage charges of Sh111 million and the arbitral award had been obtained corruptly.
The three now say the board and the investigative agencies have contravened the constitution by initiating an unlawful criminal process against them in order to compel them to refund Sh310 million and Sh2.4 million ($24,032) received by Erad in execution of a lawful arbitral award.
Grace and her co-accused were charged before the magistrate’s anti-corruption court with uttering a false document to an arbitrator being an invoice for Sh110m ($1.1 million) as evidence in an arbitration between NCPB and Erad Supplies and General contracts.
