John Waluke, a Sirisia MP, has been given an Sh10 million cash bail while his appeal against a 67-year prison sentence for an Sh297 million fraud is heard and decided.
This came as Waluke persisted that the government owes him Sh300 million in connection with the 2004 maize supply deal, which prosecutors claim was a forgery.
The MP's continued imprisonment might result in him losing his parliamentary seat and having to run in a by-election, according to a three-judge panel made up of Asike Makhandia, Grace Ngenye, and Sankale ole Kantai.
Waluke insists as he leaves jail that the government owes him Sh300 million
"We conclude that Waluke's continued incarceration will automatically result in losing his Parliamentary seat. He will automatically lose his position if he does not attend eight consecutive sittings.
On that basis, we believe the bail application has merit and grant it, "According to Judge Ngenye, who read the ruling. He was incarcerated at Kamiti Maximum Prison.
The judges also gave him the option of posting an Sh20 million bond. The bail conditions are similar to those previously issued by the High Court.
Suppose his appeal is heard, and he wins. In that case, he will not be able to win back his seat because a by-election will have been held.
In addition, he will be ineligible to run for office because he is incarcerated. The court stated that this would be detrimental to him and the Sirisia people, who elected him while he was free on bail.
"We believe this presents unusual circumstances that could justify considering this application in his favor," it continued.
Following this was his release under the previous bond conditions set by the High court, which were either Sh10 million in cash bail or Sh20 million in bond terms with a similar amount of surety, pending appeal.
However, following a request from Waluke's defense team, led by senior counsel Dr. Otiende Amollo, the court decided to uphold the bail conditions set by the High Court in 2020.
The attorneys claimed that he still needed to receive the money back. Dr. Amollo claims that Waluke has more than 30 debatable legal arguments in favor of the appeal's success.
He added that should bail not be granted; the MP might lose his seat and call a by-election.
Melissa Ng'ania and Elisha Ongoya are additional defense attorneys. They claimed that because Waluke had been acquitted by the magistrate court of the primary charge of uttering false invoices, there was no justification for convicting him of fraudulently acquiring public property.
The court was informed that Waluke could not be found guilty because the money was obtained using fake invoices. The judge cleared him because she determined that he did not utter any documents.
But oddly found him guilty of obtaining money in a fraudulent way, based on speaking the record," said Dr. Amollo. He claimed that the money was an arbitrator's award that the High Court upheld and the trial court found to be obtained fraudulently.
The attorney claimed that the National Cereals and Produce Board (NCPB) filed an appeal against the funds, which sparked the criminal investigation.
The lawyers argued that the money paid to the MP was through fraud and that the NCPB owes Waluke over Sh300 million due to the maize supply deal signed 19 years ago.
Dr. Amollo stated that the NCPB filed an appeal against the arbitral award in 2012 and that the matter is pending resolution at the Appellate Court.
He claimed that an arbitrator awarded Sh600 million to Waluke's company, Erad General Suppliers Ltd. Still, NCPB only paid Sh297 million, leaving an outstanding balance of over Sh300 million.
He also stated that the MP did not participate in the maize supply contract tendering or arbitration proceedings. "The case is based on an invoice presented to an arbitrator." It went unchallenged in front of an arbitrator.
The authenticity test must take place in the courtroom. The High Court upheld it, and cannot be overturned through the criminal justice system. "The criminal trial amounts to usurpation of the arbitrator's jurisdiction," Dr. Amollo stated.