The High Court has dealt a major blow to former Kiambu Governor Ferdinand Waititu after it dismissed his attempt to be released on bail pending his appeal in the Sh588 million road tender scandal.
Justice Lucy Njuguna, sitting at the Anti-Corruption High Court, ruled that Waititu, along with his co-convicts former Kiambu Chief Officer of Roads and businessman Charles Chege had failed to provide sufficient grounds for bail.
In her ruling, Justice Njuguna dismissed the argument that the appeal would take too long, stating that the court’s schedule would ensure the matter is heard and concluded in under two months, as the main appeal had already been filed.
She also ordered that the appeals challenging both the conviction and sentencing be treated as a priority.
“It is my finding that the applicants have not met the threshold for the grant of bail pending appeal. The applications are hereby dismissed,” she stated. “The appeal shall be heard on a priority basis given that the three are in custody.”
While Waititu’s defense team had argued that his health condition required urgent medical attention, the judge noted that the prison facility had the capacity to address his medical needs.
Furthermore, in case of serious health issues, inmates are referred to external hospitals.
“Ill health does not constitute exceptional circumstances when medical facilities are available within the prison system. If necessary, the prison personnel refer inmates to external medical facilities, as was done in Waititu’s case,” Justice Njuguna ruled.
The judge also emphasized that the right to bail is not automatic.
The applicant must convince the court that their appeal is arguable and has a real chance of success.
Justice Njuguna concurred with the Director of Public Prosecutions (DPP), Renson Ingonga, who argued that Waititu’s conviction was based on solid evidence and that there was no legal basis for granting him bail pending appeal.
Waititu and his co-convicts had requested bail as they awaited the hearing and determination of their appeal.
However, the DPP maintained that Waititu’s conviction, which was based on overwhelming evidence, should not be disturbed.
Waititu, 63, was convicted on February 12 by Chief Magistrate Thomas Nzyoki, who sentenced him to pay a fine of Sh52.7 million or face 12 years in prison for embezzling public funds during his tenure as Governor of Kiambu County.
Chege, who was involved in the fraudulent tender process, was sentenced to pay Sh295 million or face nine years in prison. He was found guilty of fraudulent acquisition of Sh147 million in public funds.
Another co-convict, Wahinya, was sentenced to seven years in prison after being convicted for abusing his office in relation to the tender.
The case stemmed from an investigation into a road tender that was awarded to Testimony Enterprises Limited, a contractor who paid kickbacks to Waititu through his company, Saika Two Developers.
The court found that Waititu received Sh25.6 million in kickbacks, which was traced to Lake Naivasha Resort, co-owned by Waititu and his wife.
In delivering his judgment, Magistrate Nzyoki stated that the tender had provided Waititu and his co-convicts with an opportunity to enrich themselves through fraudulent means.
“The inevitable conclusion is that Waititu is liable for conflict of interest by acquiring an indirect personal interest of Sh25 million from Testimony Enterprises,” Nzyoki ruled.
The conviction was based on testimony from 32 witnesses and documentary evidence that linked the fraudulent payment to the irregular awarding of the tender.
The court found that the evidence against Waititu was compelling.
Dissatisfied with the conviction and sentence, the trio lodged separate appeals.
Waititu’s legal team, led by Danstan Omari, Sam Nyaberi, Jeremy Njenga, and John Swaka, argued that his health condition, including severe high blood pressure and other chronic ailments, required constant medical attention that could not be adequately provided in prison.
“Waititu is likely to suffer if he remains in custody, given his medical condition of violent high blood pressure which requires constant urgent medical care,” the defense lawyers stated in their bail application.
However, the DPP, represented by State Counsel Victor Owiti, countered this argument, emphasizing that the conviction was well-founded.
According to the prosecution, all four charges against Waititu were proven beyond a reasonable doubt, and the trial court’s judgment was sound.
Owiti also pointed out that Waititu’s compliance with bail terms during the trial should not be considered a special circumstance in his favor.
“Waititu’s history of attending trial hearings and his readiness to comply with any conditions set upon release does not constitute a special circumstance,” Owiti argued.
Additionally, the DPP rejected Waititu’s claim that his health was deteriorating and required medical care outside the prison facility.
In his appeal, Waititu listed 57 grounds, including claiming that the trial magistrate Nzyoki, failed to fully analyze the evidence presented by the prosecution.
He argued that the prosecution did not meet the required standard of proof and that key witnesses were not called to testify.
“The prosecution failed to establish their case to the required standard of beyond a reasonable doubt,” the appeal papers state.
Waititu’s defense team also argued that the trial court had disregarded contradictions in the prosecution’s case, which they say created reasonable doubt about his involvement in the alleged crimes.
One of the key points in Waititu’s appeal is that the trial court failed to establish a clear link between him and Lake Naivasha Resort, a company allegedly involved in the corruption scheme.
Waititu contends that there was no evidence to support the claim that he used his position to enrich himself.
Further, Waititu’s legal team argues that the trial court showed bias and failed to adhere to the principles of a fair trial. They claim that the court was not neutral in its handling of the case.
Waititu is now asking the High Court to set aside the lower court’s decision and overturn his conviction.
