• He said a parliamentary seat is a state office and not Waluke’s personal entitlement.
• The DPP says Wakhungu is a flight risk.
Image: FILE
Director of Public Prosecutions Noordin Haji has said claims by Sirisia MP John Waluke that he is likely to lose his parliamentary seat is not an exceptional circumstance to warrant grant of bail pending appeal.
He said a parliamentary seat is a state office and not Waluke’s personal entitlement.
The DPP, through prosecutor Alexander Muteti, has asked the court to deny Waluke bail as he has failed to demonstrate what prejudice he and the constituents of Sirisia will suffer.
“The possibility of Waluke losing his parliamentary seat if he fails to attend eight consecutive sittings is not an exceptional circumstance to warrant grant of bail pending appeal and there is no guarantee that he will win the said seat come 2022,” he said.
Waluke and Grace Wakhungu are currently serving time in prison after they were convicted of fraud involving Sh297 million in shady maize dealings with the National Cereal and Produce Board.
Wakhungu was sentenced to 69 years in jail with an option of Sh1 billion fine and Waluke was handed a 67-year jail term with an alternative Sh1 billion fine. The two have since appealed against their convictions.
It's been about 45 days since the two were convicted. Yesterday the matter was listed for bail hearing but failed to kick off. Both Wakhungu and Waluke appeared virtually for the proceedings from prison.
But judge John Onyiego indicated he has no record of submissions filed by parties as the court file is locked at Milimani. He said the matter be adjourned as the area was still being fumigated and no one allowed within the premises. He added that the ICT team at Milimani was unable to get the electronically filed documents.
“Considering court does not have the benefit of the court file, both physically or electronically, this matter is adjourned to Monday next week,” he said
Waluke has asked the court to release him on bail on account of his seat, age and health. He claimed he is diabetic and hypertensive. He also said trial magistrate Elizabeth Juma failed to appreciate that critical witnesses were never called to testify.
But in an affidavit, prosecutor Ruby Okoth says the sentence handed by the trial magistrate is lawful, just and compliant with the provisions of the Anti-Corruption and Economic Crimes Act.
“The sentencing imposed by court took into account their mitigation, which included age and health issues. His conviction was also on the basis of credible and well corroborated evidence presented by the prosecution,” read the document.
Regarding Wakhungu, the DPP believes she is a flight risk and is likely to abscond based on her past conduct during trial. According to court documents, when the corruption charges were preferred against her, Wakhungu never appeared in court until a warrant of arrest was issued. The charge sheet was filed in court on August 2, 2018, only for her to be presented on September 21, 2018, pursuant to the warrant.
When ordered to deposit her passport in court, Wakhungu said it had expired and she was unaware of its whereabouts. The trial court then ordered the investigating officer to proceed to confirm details of her passport if indeed it had expired.
Evidence later obtained showed that she held a valid Kenyan passport issued in February 2014 and which was valid until February 2024. There was no evidence that she held a passport with a different number as earlier alleged.
“We believe that by giving the court the incorrect passport number and purporting the same to have expired, Wakhungu was acting in bad faith and intended to mislead the court to allow her retain the valid passport which could be used to flee the court's jurisdiction,”.
The DPP says mere allegations that one is sick would not entitle one to a bond because most prisoners would plead the same excuse.
Haji says he sought to establish from the commissioner general of prisons, the capacity of the prison authorities to handle her and medical conditions that she may have. The commissioner responded that her condition is one that can easily be managed by the authorities.
One of the major considerations that a court must determine in granting bail is whether an appeal has an overwhelming chance of success. The bail and bond policy guidelines provide that the burden is on Wakhungu to demonstrate that there is an overwhelming probability that her appeal will succeed.
In Wakhungu's case, the DPP says there are no overwhelming chances of success based on the fact that witnesses who were called by the prosecution to prove the case were sufficient.