Waititu’s push for bail stalled by DPP’s strong objection
The Directorate of Public Prosecution (DPP) has strongly opposed the second attempt by the former Kiambu Governor Ferdinand Waititu seeking to be released on bail pending hearing and determination of his appeal after he was convicted with graft.
Through principal prosecution lawyer Faith Mwila on Wednesday, March 26, 2025, DPP argued that in the fresh application, Waititu has not demonstrated a change of circumstances that can lead him to be granted bail pending the appeal hearing.
“The appellant has not demonstrated that there has been a change of circumstances warranting this court to review its orders of March 4, 2025,” read some of the grounds.
Further, the DPP argues that the fresh application offends the hierarchy of courts and that it is a blatant abuse of the court’s process.
Notably, the DPP says that the instant application is also aimed at causing substantial and unwarranted delays in the hearing and determination of the appeal pending before the honourable court.
Waititu was sentenced to serve 12 years in prison or pay a fine of Ksh53 million after being convicted of graft.
In the second attempt, lawyer Kibe Mungai, representing Waititu, argued that as per the grounds listed in the supplementary petition filed on March 11, 2025, there was an overwhelming chance of success for him to be out on bail.
“The appellant’s appeal has numerous substantial points of law that show prima facie the appellant is likely to succeed in his appeal,” part of the application read.
Mungai states that since his client was already convicted, it would be fair for the court to release him on bail under the principle of substantial justice under Article 159(2) of the Constitution.
Additionally, Mungai argued that it was neither fair nor logical for Waititu to serve part of the sentence only for him to pay the fine in the event that his appeal does not succeed.
The convict has an option of paying the fine in lieu of serving the term of 12 years imprisonment if his appeal is not successful, an option he says he will certainly exercise.
Mungai stated that it should be inferred that the spirit of the Constitution is against imprisonment where an applicant has been sentenced to serve a jail term with an alternative of paying a fine.
“Taking into account the prohibition in Article 49(2) of the constitution prohibits remanding of a person in custody charged with offence punishable by fine only,” part of the application read.
Further, he stated that the admission of his client to bail pending appeal is the procedural device for achieving objective justice.
He added that there was no reason for the convicted person to suffer extreme prejudice pending hearing of the appeal because it is his constitutional right of appeal, enshrined in Article 50 of the Constitution.
Notably, Mungai said that the conviction of Waititu did not meet the requisite standard of proof beyond a reasonable doubt.
He argued that there was no direct evidence linking the money received by Waititu and his companies to the award of the tender to Testimony Enterprises Limited.
However, the DPP legal team told the court that the applicant could not file a supplementary petition of the appeal but could only amend it.
On March 3, 2025, Lady Justice Lucy Njuguna denied Waititu bail pending appeal, stating that the applicant did not meet the conditions to be granted bail.
“It is my finding that the applicant has not met the conditions for grant of bail pending appeal; the application is hereby dismissed,” Lady Justice Njuguna ruled.
In her ruling, Justice Njuguna stated that she concurred with the DPP’s submissions that ill health is not enough to warrant the accused’s bail since all prisons are equipped with health facilities.
“Medical facilities are available for prisoners and the prison is equipped to take care of sick prisoners and if the need arises the prison personnel will seek a referral to other facilities outside the prison like it was done for Waititu when he fell sick,” Justice Njuguna ruled.
Lady Justice Njuguna also stated that the record of the appeal was ready and that the anticipation that there might be a delayed hearing of the appeal was overruled.
On Wednesday, March 26, 2025, Justice Njuguna stated that the two matters would be heard separately, starting with the amendment of the petition, and then the fresh bail application will follow.
She directed the applicant to file and submit their responses on the DPP opposing grounds.
The ruling on the amendment of the petition of the appeal will be delivered virtually on April 23, 2025, at 9 am.
