The anti-corruption court rushed in sentencing Sirisia MP John Waluke and his business partner Grace Wakhungu in the Sh297 million maize scandal and in the process it forgot to clarify whether the jail terms were to run concurrently or consecutively, the High Court heard yesterday.
The convicts told Justice John Onyiego that their sentences are unsafe since they were condemned on duplicity of charges, which were not proved beyond reasonable doubt, as required in criminal law, because the trial court was under pressure.
Justice Onyiego further heard that the Office of Director of Public Prosecutions is clinging on the successful trial of the two convicts as a ‘trophy’ in the war against corruption.
While urging the court to grant the two convicts bail pending determination of their appeals, their five-member legal team said the appeal has overwhelming chances of success and that they are not flight risks.
The lawyers led by Senior Counsel Paul Muite and Elijah Ongoya also said the health of the convicts has deteriorated while serving time in jail as they had pre-existing medical conditions.
Mr Ongoya said the MP, who is at Nairobi Remand prison, is suffering health hazards and needs reasonable social distancing.
“The MP cannot lose the [parliamentary] seat on account of conviction until the last opportunity of appeal is exhausted. But he may lose the seat on missing eight consecutive sittings,” said Mr Ongoya adding that the people of Sirisia need representation.
Mr Muite said Ms Wakhungu, 80, is suffering from hypertension and athlete’s foot disease and needs to be seen by her doctor.
“Let us not run the danger of her passing on at Lang’ata prison,” Mr Muite said.
The court granted the request but said the doctor should visit her at Lang’ata Women Prison for the check-up in consultation with the officer-in-charge of medical matters at the jail.
Ms Wakhungu is serving a 39-year sentence , while the MP is serving a 34-year sentence after they were unable to raise a combined fine in excess of Sh2 billion.
Attacking the magistrate court’s ruling, the lawyers said the trial court when passing the sentence arrogated itself the powers of a superior court— not a trivial matter in legal practice, they said.
Mr Ongoya also told the judge that the trial magistrate failed to take into account evidence of an investigator from the anti-corruption commission, Mr Kipsang Sabayi, who testified that the tender awarded to the convicts was valid. Moreover, the witness had admitted that he did not find undue influence in the signing of the tender documents.
However, State Counsel Alexander Muteti opposed the bail application, saying, the appeal has minimal chances of success.
