• Wakhungu's lawyers said she has become less stable because of poor aeration of the cells.
• Wakhungu and Waluke are currently serving time in prison after they were convicted of fraud involving Sh313 million
Image: FILE
A court has allowed Grace Wakhungu to be examined by her personal doctor in the presence of prison authorities following claims that her health is deteriorating.
Justice John Onyiego of the High Court issued the directive after her lawyers, led by Paul Muite, Evans Monari and Duncan O’kubasu, said she has become less stable because of poor aeration of the cells.
The court heard that Wakhungu suffers from arthritis and hypertension, and if her condition is not professionally assessed, her physical and mental health stands a risk of permanent deterioration.
“For the two occasions I spoke to her, she sounded weak, disturbed, anxious and in need of intense and dire medical care and attention,” said one of the lawyers.
Justice Onyiego, in issuing the directive, said Wakhungu be examined by her personal doctor, one Wanyoike, in the presence of medical in-charge at Lang’ata Women's Prison at least once before a ruling on bail is made on September 25, pending her appeal.
Wakhungu and Sirisia MP John Waluke are currently serving time in prison after they were convicted of fraud involving Sh313 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, while Waluke was handed a 67-year jail sentence with an alternative Sh1 billion fine. The two have since appealed against their convictions.
The accused persons are said to have procured public property fraudulently. On Monday, the court heard that the Sh313 million was paid pursuant to a decree of the High Court of Kenya.
Wakhungu, through her lawyers, told the court that a payment made pursuant to a decree of the High Court cannot be said to have been obtained fraudulently.
Erad was awarded $1,960,000 (Sh211,719,200) for loss of profit and another $1,146,000 (Sh123,790,000) for storage charges. The total award was, therefore, $3,106,000 (Sh335,510,120) at an interest rate of 12 per cent per annum from October 2004.
The NCPB had breached the maize contract and in accordance with the contract, Wakhungu and Waluke had referred the matter to arbitration and an award was made in their favour.
But the Director of Public Prosecutions (DPP) and the Ethics and Anti-Corruption Commission claimed that the invoice, for which Erad sought and obtained an award of $1,446,000 in support of a claim for cost of storage of the 40,000 tonnes of maize, was forged, hence an offence of uttering a false document and perjury had been committed.
But Wakungu told Onyiego no forensic evidence of a document examiner was produced by the prosecution to establish that the invoice was falsified.
“They cannot be the basis of criminal charges. The sentencing was also exorbitant as the trial court failed to indicate whether the sentencing will run concurrently or consecutively,” she said.
In addition, Monari said the fight against corruption is a pressured fight. He said the NCPB matter is a case in which the DPP sought pride and to ensure conviction, they brought in a witness all the way from Durban at the eleventh hour.
On Waluke, Elisha Ongoya and Sam Nyaberi said the trial magistrate ignored crucial evidence against him. They poked holes into trial magistrates Elizabeth Juma’s decision, questioning why she failed to consider facts as submitted by the investigating officer (IO) who said he did not find any undue influence in the signing of tender contracts. The IO also said the tender was enforceable and not invalid but this was overlooked by Juma.
In a brief rejoinder, however, prosecution counsel Alexander Muteti maintained that the documents relied on to give the award were fake. He told the court that its witness Freddy Chetty confirmed that the invoice in question did not emanate from Chelsea Freight and that it has never dealt in maize.
He urged the court to deny the duo bail on the grounds that the sentence meted out by the trial magistrate was 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,” Muteti said.