Former Kiambu Governor Ferdinand Waititu, sentenced to serve 12 years in prison or pay a fine of Ksh53 million for graft, has moved to court again seeking to be released on bail pending hearing and determination of his appeal.
In the second attempt, lawyer Kibe Mungai, representing Waititu, argues that as per the grounds listed in the supplementary petition filed on March 11, 2025, there is an overwhelming chance of success for him to be out on bail.
“The appellants appeal has numerous substantial points of law that shows 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 will 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 argues that it is 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 to pay 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 states 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 states that the admission of his client to bail pending appeal is the procedural device for achieving objective justice.
He adds there is 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 asserts the conviction of Waititu did not meet the requisite standard of proof beyond reasonable doubt.
He argues 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 Director of Public Prosecutions (DPP) legal team asked court to grant them three days to respond to the application stating that they were served with the application late on Monday, March 17, 2025.
The legal team told the court that they would be opposing the supplementary petition citing that the applicant cannot file a supplementary petition of the appeal but can only amend it
Milimani High Court Judge Lucy Njuguna on Tuesday, March 18, 2025, granted the DPP the three days to respond.
The case will be mentioned on March 26, 2025, to confirm compliance and for directions.
