The High Court has ordered the forfeiture of assets worth Sh131.2 million linked to jailed former Kiambu Governor Ferdinand Waititu, his wife Susan Wangari, and their company Saika Two Estate Developers Limited, after finding that the properties constituted unexplained wealth under anti-corruption laws.
In a detailed judgment delivered by Justice Nixon Sifuna, the court ruled that while the Ethics and Anti-Corruption Commission (EACC) failed to justify forfeiture of most of the disputed assets aand cash deposits, it had sufficiently demonstrated that specific properties were acquired without satisfactory explanation and should therefore be surrendered to the State.
“This court is satisfied with the explanations given in regard to all the landed and movable properties of these two defendants except the following,” Justice Sifuna ruled.
The court ordered Waititu, the first defendant, to forfeit five assets valued at Sh76.26 million.
These include motor vehicle registration number KCJ 549X Toyota ProBox valued at Sh600,000, motor vehicle registration number KCJ 548X Toyota Vitz valued at Sh600,000, and a Caterpillar tractor valued at Sh11 million.
Justice Sifuna also ordered the forfeiture of two parcels of land in Thindigua, each valued at Sh32 million, after finding that Waititu had failed to adequately explain how he acquired them.
“These are five assets belonging to the first defendant. I found the explanation that was given on these ones not to have been satisfactory,” the judge said.
With regard to Waititu’s wife, Susan Wangari, the court found that she had failed to justify the acquisition of one parcel of land in Kitengela, Kajiado County, valued at Sh3 million, which was also ordered forfeited.
“The property in respect of which I have not found the explanation to be satisfactory and therefore regard as unexplained wealth is one property which the commission valued at Kenya shillings three million,” Justice Sifuna ruled.
The court further ordered the forfeiture of a Nairobi Central Business District property linked to Saika Two Estate Developers Limited, identified as LR 209/4292, Solar House, valued at Sh52 million and located along Aga Khan Walk, off Harambee Avenue.
“The property in respect of which I didn’t find sufficient explanation is LR 209/4292, Solar House, valued at Kenya shillings 52 million,” the judge ruled.
However, the court dismissed EACC’s attempt to seize the bulk of the assets and funds valued at over Sh1 billion, ruling that the commission had failed to meet the legal threshold required for civil forfeiture.
“As for the funds and the rest of the properties, this court finds the explanation and proof of their manner of acquisition and status satisfactory,” Justice Sifuna said.
The judge underscored that civil forfeiture proceedings under the Anti-Corruption and Economic Crimes Act (ACECA) are independent of criminal cases and require proof on a balance of probabilities, not speculation or aggregated figures.
“The commission’s case against those funds is neither sound nor well founded nor justified,” he said, faulting investigators for relying on cumulative bank deposits without analysing specific suspect transactions.
Justice Sifuna noted that although Waititu and his wife were convicted in a separate criminal case relating to irregular tenders awarded by Kiambu County, that conviction could not automatically justify forfeiture of all their assets.
“This court has taken judicial notice of that conviction,” he said, adding that “the existence of a conviction does not automatically determine the outcome of this suit.”
He explained that a conviction only serves as auxiliary evidence in civil forfeiture proceedings and increases the burden on defendants to explain their wealth but does not shift the legal burden from the commission.
The conviction related to tender dealings involving Delta Hotel and Saika Two Estate Developers Limited, through which the trial court found that Sh45 million in public funds had been received during Waititu’s tenure as Kiambu governor.
These included Sh25.6 million received by Waititu, Sh12.4 million by Saika Two Estate, and Sh7.2 million by Bienvenue Delta Hotel.
“It is only those funds,” Justice Sifuna said, emphasizing that the EACC was still required to link specific assets to corrupt conduct.
The forfeiture case was filed in May 2022 against Waititu, his wife, and three companies associated with them—Saika Two Estate Developers Limited, Bienvenue Delta Hotel, and Bins Management Services Limited—with the EACC seeking to recover assets and funds estimated at Sh1.937 billion.
According to the commission, the wealth was accumulated between 2015 and 2020, when Waititu served first as Kabete MP and later as Kiambu governor, and was not commensurate with his known legitimate income.
However, Justice Sifuna faulted the commission’s investigative approach, noting that it failed to distinguish between lawful business turnover, loan proceeds, and potentially illicit funds.
“These businesses were going concerns. They were trading and earning income from lawful activities,” the judge said.
The court also declined EACC’s request to order Waititu and his wife to refund more than Sh1.3 billion, ruling that the commission had not sufficiently demonstrated that the funds currently existed or were directly traceable to corruption.
The judgment marks a mixed outcome for the anti-graft agency, resulting in a partial recovery of assets while underscoring the strict evidentiary standards required in civil forfeiture cases.
Waititu is currently serving a 12-year prison sentence after being convicted earlier this year in a separate corruption case involving road tenders worth Sh588 million.
