The High Court on Tuesday certified as urgent an application seeking the release on bond of jailed former Kiambu Governor Ferdinand Waititu, pending his appeal.
When the matter was mentioned before Justice Lucy Njuguna, she declined to grant Waititu bond terms without first hearing the application. Instead, she certified the case as urgent and directed that the application be heard on Monday next week.
Justice Njuguna also directed a team of lawyers led by Danstan Omari to serve the Director of Public Prosecutions (DPP) and the Ethics and Anti-Corruption Commission (EACC) with the bail application before the close of business on Tuesday to avoid any delays in the case.
“The application dated February 17, 2025, is certified as urgent. The Applicant is to serve the Respondents with the application before the close of business today. The Respondents are to file and serve their responses within three days of service,” Justice Njuguna ordered.
Waititu, who has been sentenced to serve a total of 12 years or pay a fine of Sh 53.7 million over a Sh 588 million corruption case, has filed an application under certificate of urgency seeking bond pending the hearing of his main appeal.
In the appeal, he seeks to quash both the conviction and sentence, as well as the 10-year ban from holding public office.
Omari, representing the former governor, argues that Waititu is in urgent need of medical attention due to his severe high blood pressure, which requires constant care.
Omari emphasizes that Waititu’s continued detention could exacerbate his medical condition.
“Waititu is likely to suffer if he continues to remain in custody given his medical condition of violent High Blood Pressure which needs constant urgent medical care,” the lawyer states in the bail application.
Omari further argues that denying Waititu bail would violate his fundamental right to liberty, which cannot be suspended arbitrarily.
“The fundamental freedom to liberty is not arbitrarily suspended once an accused has been convicted,” Omari asserts, adding that Waititu should be given an opportunity to appeal while out on bail, considering his longstanding residence in Kenya and his established role as a public figure.
“The Applicant (Waititu) is well known with a permanent abode in the Republic of Kenya and therefore not a flight risk,” the application states.
On Monday his lawyers confirmed that jailed f Waititu is held at the Industrial Area Prison and not hospitalized at Kenyatta National Hospital (KNH).
The lawyers among them Stanley Kinyanjui, Sam Nyaberi and Shadrack Wambui have raised 57 grounds in the High Court which they expect the court will consider and set aside the decision by the Anti-Corruption chief magistrate court on Friday last week.
In his appeal papers filed before Milimani Anti-Corruption High Court, Waititu through lawyer Danstan Omari faulted the trial magistrate Thomas Nzyoki for not fully analysing the evidence presented by the prosecution.
He claims that the prosecution failed to meet the required standard of proof, the trial court disregarded contradictions in the prosecution’s case, and key witnesses were not called to testify.
“The prosecution had failed to establish their case to the required standard of beyond a reasonable doubt,” the appeal papers state.
Waititu’s defense team asserts that the court failed to appreciate contradictions in the evidence presented, which created reasonable doubt about his involvement in the alleged crimes.
Additionally, Waititu contends that the trial court did not properly weigh the evidence presented by both the prosecution and the defense.
In the appeal, Waititu further argues that the trial court did not give sufficient attention to his testimony or provide due analysis of his defense.
He insists that the court’s conclusion was skewed, leading to an unjust conviction.
“The trial Court erred in law and in fact by failing to subject the evidence of the prosecution to a test of credibility and admissibility,” the appeal states.
One of the core elements of Waititu’s appeal is the contention that the trial court failed to establish a link between him and the Lake Naivasha Resort, a company alleged to have been involved in the corruption scheme.
Waititu claims that there was no evidence to substantiate the allegation that he used his position to illicitly enrich himself.
“There was no nexus between Lake Naivasha Resort and the Appellant,” he asserts in the appeal.
Furthermore, Waititu challenges the fairness of the trial itself, claiming that the court showed bias and failed to adhere to principles of fair trial as outlined in the Constitution.
“The trial Court erred in law and in fact by disregarding its role as a neutral finder of fact and demonstrated bias and partiality to the detriment of the appellant,” the appeal reads.
The former governor now wants the high court to set aside the lower court decision
Waititu’s appeal stems from his conviction for receiving kickbacks from a road contractor in connection with a Sh588 million tender issued by Kiambu County.
The trial revealed that Waititu, through his company Saika Two Developers, received Sh25.6 million in kickbacks from Testimony Enterprises Limited, the contractor awarded the tender to upgrade roads in various parts of Kiambu County.
In his judgment, Magistrate Thomas Nzyoki found that Waititu, his wife, and others involved in the scheme had used their positions to enrich themselves at the expense of public development.
“The tender had been a golden opportunity for Waititu, his wife, and co-convicts to enrich themselves,” Nzyoki said, noting that the Sh25.6 million was traced to Lake Naivasha Resort, which is co-owned by the former governor and his wife.
The court’s decsion was based on testimony from 32 witnesses and documentary evidence, which demonstrated a clear link between the fraudulent payment and the awarding of the irregular tender.
“The inevitable conclusion is that Waititu is liable for conflict of interest by acquiring an indirect personal interest of Sh25 million from testimony,” said Nzyoki.
Waititu’s wife Susan Wangari who was sentenced over the corruption scandal, has since gained her freedom after she paided the sh 500,000 fine imposed on her by the court on Thursday.
However, Waititu and his co-convicts, including former Kiambu County Chief Officer for Roads and Transport Engineer Luka Mwangi Wahinya, and businessman Charles Chege Mbuthia have since started serving their sentences at Industrial Area Remand Prison after they failed to pay the hefty fines imposed on them by the court.
Wahinya was fined Sh21 million or face seven years in prison for the abuse of office related to awarding the tender to an unqualified contractor.
Chege was fined Sh295 million, twice the amount he received from public coffers, or face nine years in prison for the fraudulent acquisition of Sh147 million in public funds and fraudulent procurement practices
