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Prosecution opposes Waititu bid to be released on bail
Principal Prosecution Counsel Victor Owiti says former governor must establish that the intended appeal, if any, has a chance of success before he can be granted bail
The prosecution has urged the court to deny former Kiambu Governor Ferdinand Waititu bond pending appeal stating that he has already lost his presumption of innocence.
Principal Prosecution Counsel Victor Owiti told Justice Lucy Njuguna that Waititu has not met the threshold for the granting of bail pending appeal as sought by the former governor.
He said Waititu must establish that the intended appeal, if any, has a chance of success before he can be granted bail.
“The applicant has not demonstrated any existence of exceptional and or unusual circumstances to warrant his release on bail pending appeal,” Owiti told the court.
He held that Waititu has not held any basis for the basis of rebuttal of the presumption that his conviction was proper.
He affirmed that upon his conviction to serve 12 years in jail for engaging in corruption, Waititu lost his right to the presumption of innocence and thus his entitlement to bail, if any, and the terms accordingly changed.
The prosecution’s view was, however, opposed by the defence lawyers led by Danstan Omari, Sam Nyaberi and John Swaka, who submitted that the grounds they are presenting are overwhelming chance of success upon determination.
In his submissions, Nyaberi asked the court to consider their application to release the former governor on bail, pending appeal citing that the trial magistrate erred in failing to consider key exceptional and unusual circumstances crucial to the determination of the case,
“The trial magistrate convicted him based on the evidence that failed to prove beyond reasonable doubt that he actually committed the offence,” he stated.
Nyaberi urged the court to consider the health condition of the former governor saying that he suffers multiple health challenges which he asked the court to consider and release him on bail pending appeal.
The court heard that Waititu is the sole breadwinner to his family and putting him in jail will lead his family to become destitute, desperate and their livelihood will be highly compromised.
He reiterated that during the trial in the subordinate court, he dutifully attended court all the time and added that he will continue to do the same if released.
“Your honour my client will continue to do the same by making sure he avails himself before this court whenever required,” Nyaberi said.
The lawyer stated that Waititu is not a flight risk and he is a public figure who has engaged in politics for 20 years and his permanent place of residence is known, adding that his extended family also resides in Kenya.
In his application, Waititu says that unless the court grants bail pending appeal, the prosecution may proceed to execute the sentence which will cause him a great prejudice since he has served part of the sentence by the time court hears the appeal.
He concluded that the respondents will no longer suffer any prejudice in the event of the application is allowed and the sentence deferred until the hearing and determination of the appeal.
On his part, Swaka submitted that some of the tender committee members from the county government of Kiambu were acquitted by the court.
He said that the accounts held by the enterprises had other monies from other sources not from the county government of Kiambu only.
Swaka added magistrate erred in considering that the roads were constructed from the tendered monies and in fact not all monies was paid and it was a witness statement that they (Kiambu County) owes Charles Chege who was the contractor.
“It is in court’s record, your honour, a witness testified in the subordinate court that not all monies that was supposed to be paid to the contractor was paid. The witness admitted the county government of Kiambu owes the contractor,” Swaka submitted.
He quoted Section 357 (1) of the Criminal Procedure Code citing that the court has all the power and jurisdiction to release the applicant on bail pending appeal.
Ferdinand Waititu and his wife Susan Wangari have been convicted on corruption charges linked to the manipulation of a Sh588 million road construction tender.
The conviction was handed down by Chief Magistrate Thomas Nzyoki, who found Waititu, his wife Wangari, businessman Charles Mbuthia Chege, his wife Beth Wangechi, and former Kiambu County Roads Chief Officer Luka Mwangi Wahinya guilty of conspiring to defraud the county government.
The accused persons were guilty of graft charges revolving a tender awarded in February 2018 to Testimony Enterprises Ltd, a company linked to them, for road works across several sub-counties in Kiambu.
Testimony Enterprises Ltd had won the Sh588,198,328 tender, which was supposed to enhance the infrastructure in Kiambu County.
However, the court found that the tender process was manipulated to ensure Testimony Enterprises, a company with no legitimate qualifications to handle such a large-scale contract, was awarded the project.
