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The Director of Public Prosecutions Noordin Haji yesterday asked the Court of Appeal to dismiss a petition by Sirisia MP John Waluke to be released on bail pending the hearing of his appeal challenging the 67-year jail term imposed on him over the Sh297 million corruption case.

While opposing the bail application by Waluke, Haji through State counsel Alexander Muteti and Victor Owiti, told Appeal Court judges Asike Makhandi, Sankale Ole Kantai and Grace Ngenye, to deny him bail arguing that the MP had not tabled convincing reasons and termed the appeal challenging the High Court decision to uphold his sentence as “hopeless with no chance of success.”

“The bail application pending appeal has no merit. The grounds raised have not established the arguability of the intended appeal. We urge this court to dismiss it and set the hearing dates for the main appeal challenging the conviction and sentence,” Muteti said.

Loss of seat

The prosecutor said there were no exceptional circumstances to warrant release of the lawmaker, who is serving the over 60 years sentence at Kamiti Maximum Security Prison after he failed to raise over Sh1 billion fine imposed by the anti-corruption court.

Muteti also dismissed the MP’s claim that he is at risk of losing the parliamentary seat as a result of the incarceration.

“On the argument that over 60 million people of Sirisia constituency have been denied representation, there is an element of public interest consideration in this case. The fight against corruption outweighs the individual interest of a sitting MP to continue serving. That argument cannot pass the test of exceptional circumstance,” said Muteti.

He further told the judges that there is no basis for the Court of Appeal to disturb the concurring findings of the Magistrate Court and High Court on three corruption offences of fraudulent acquisition of public funds committed by the lawmaker.

But Waluke, through lawyers Otiende Amollo and Elisha Ongoya, urged the judges to release him on bond terms of Sh10 million which he had been granted by the High Court saying there is overwhelming evidence to have the sentence quashed.

Amollo informed the judges that they have more than 30 arguable legal points as to the success of the appeal adding that the MP is at risk of losing his seat and triggering a by-election should he not be granted bail.

“My client is an MP and he is in danger of losing his parliamentary seat if he misses eight sittings at the National Assembly,” said Amollo.

Forged invoices

They said that the magistrate’s court, having acquitted Waluke from the main charge of uttering false invoice, there was no basis for convicting him for the three charges of fraudulent acquisition of public property.

The court heard that since the acquisition of the funds stemmed from the forged invoices, Waluke could not be convicted.

“The trial magistrate found he did not utter any document and acquitted him. But strangely convicted him of fraudulently obtaining money on the basis of uttering the document,” said Amollo.

He added that the money that the court found to have been fraudulently obtained was an award by an arbitrator and that the award was upheld by the High Court.

The lawyer stated that there was an appeal lodged by the National Cereals and Produce Board (NCPB) in 2012 over the award and the matter is pending determination.

He said Erad Supplies company had been awarded Sh600 million but NCPB paid Sh297 million and the outstanding balance of over Sh300 million is yet to be settled.

He further stated that the MP neither participated in the procurement for the maize supply contract nor in the arbitration proceedings.

“There is no evidence in record that Waluke was involved in the day-to-day running of the company and was also not involved in the transactions, is criminally culpable for a transaction that he never participated,” the lawyer told the judges.

In his appeal, Waluke wants the appeal court to quash the sentence saying it is harsh and unwarranted.

In January 2007, Erad Supplies was awarded breach of contract damages at the arbitration stage with NCPB that was later upheld by the Court of Appeal in July 2014, a matter Waluke wants the three-judge bench to make a determination on.