When the National Assembly sat to approve the nomination of 24 individuals to the Cabinet, its members represented millions of Kenyans by going through a committee report on the suitability of the nominees to serve.
The MPs eventually approved the 24, who were sworn in a day later.
However, the people of Sirisia – a constituency with more than 60,000 voters – had no say in the crucial Cabinet formation as their MP is at Kamiti Maximum Security Prison.
Mr John Waluke has told the Court of Appeal that his imprisonment is robbing Sirisia voters a chance to be represented in the National Assembly.
“There is clear and present danger that if this application is not heard and determined in a timely manner, the applicant will miss Parliamentary sessions, leading to loss of his seat or failure of representation of the people of Sirisia Constituency in the National Assembly,” the inmate says in the court papers.
Waluke and Ms Wakhungu had in 2020 been convicted by the Anti-Corruption Court for fraud and perjury.
They appealed the conviction and sentence at the High Court, which dismissed their cases early this month.
Wakhungu escorted to jail after court upholds conviction
The two were, however, given an option to pay fines of nearly Sh1.5 billion.
Waluke’s conviction would be historic, as it would mean that a sitting MP would have to serve time in jail for corruption – a vice lawmakers are expected to protect their constituents from through oversight.
The Sirisia MP maintains his innocence and has thrown the first punch in the battle of his life through a bail application as he seeks to file a second, and final, appeal against the sentence.
The MP has asked the Appellate Court to maintain the bail terms he was granted by the High Court in 2020 and free him for the pendency of his challenge against the jail term which has an option of a Sh628 million fine.
Waluke was first convicted and sentenced by a city magistrate’s court in 2020 alongside Wakhungu for using a forged invoice to defraud the NCPB of Sh297 million.
When the two first challenged their conviction at the High Court in 2020, Waluke was granted Sh10 million bail, while Wakhungu paid three times that amount to secure her temporary freedom.
Waluke, Wakhungu and businessman Jacob Juma, now deceased, were the directors of Erad Suppliers – one of five companies that NCPB contracted in 2004 to import maize following a biting shortage arising from drought in the country.
Erad was to supply 40,000 tonnes of grain. The others were Hala General Trading LLC (40,000 tonnes), Versatrade International (40,000 tonnes), Purma Holdings (30,000 tonnes) and Freba Investments (30,000 tonnes).
Erad Suppliers initiated arbitration proceedings and claimed Sh297 million from the board after the contractual period expired before the state agency issued it with a letter of credit to enable it import maize.
The company said it had already secured maize and paid millions of shillings to have it stored through a foreign firm, Chelsea Freight.
Mr Evans Gaturu, an arbitrator, ruled in favour of Erad Suppliers and awarded the company Sh297 million in damages.
The state agency challenged Justice Leonard Njagi’s decision, but without filing a notice of appeal as required by the law.
Years later, the Ethics and Anti-Corruption Commission began investigations into claims that Erad Suppliers had used a forged invoice from Chelsea Freight to claim exorbitant storage fees for the maize it claimed to have secured for NCPB.
Waluke’s application has given a sneak peek into the questions he intends to pose to the Court of Appeal.
The Sirisia MP argues that he is being punished for benefiting from court-ordered payments in relation to contracts the NCPB willingly entered before reportedly violating.
He says arbitrators and judges gave the claim by Erad Suppliers a clean bill of health and that it was not in the place of the magistrate’s court to reopen the matter.
“The...magistrate erred in ignoring a pertinent, admitted and common ground that each of the payments that formed the subject matter of the charges were premised on an arbitration award, that was confirmed by the High Court,” he says.
The MP says his Court of Appeal suit would require judges to determine if a company director, who is not involved in day-to-day operations and affairs, can be punished for infractions.
An affirmative answer by judges could leave many company directors exposed, as it will mean they have to work harder in providing oversight.
Directors are hired by companies to sit on their boards and make high level approvals that enable managers and other staffers to carry out their responsibilities.
