Former Kiambu Governor Ferdinand Waititu will remain behind bars after the High Court dismissed his second attempt to secure bond or bail pending the hearing of his appeal against a 12-year jail sentence for corruption.
Waititu, who has been in prison since February, was sentenced by a magistrate’s court to 12 years in jail with an alternative fine of Sh53 million after being found guilty in a high-profile corruption case. Following the conviction, he filed an initial application for bond, which was dismissed by the High Court’s Anti-Corruption and Economic Crimes division on March 3.
Undeterred, Waititu filed a fresh application seeking to be released on bond or bail as he awaited the outcome of his appeal. His legal team, led by lawyer Kibe Mungai, had asked the court for permission to amend the earlier application. The court granted the amendment request despite opposition from the Director of Public Prosecutions (DPP).
However, Justice Lucy Njuguna rejected the new application, ruling that the court was functus officio — a legal term meaning it had already made a final determination on the matter and could not revisit or revise the previous decision. The court further held that the issues raised in the second application had already been fully addressed in the initial bid for bond and therefore could not be considered again.
In her ruling, Justice Njuguna identified two key issues: whether the court had jurisdiction to alter its earlier decision, and whether the matter was res judicata, meaning it had already been judicially decided and therefore could not be pursued further in the same court. She concluded that the court lacked jurisdiction to revisit the issue and that the application was essentially a repetition of an earlier one, which had already been resolved.
“The court holds the strong view that it is functus officio and therefore I find that the application is devoid of merit and I strike it out,” she ruled.
Despite the setback, Waititu and his legal team were granted leave to appeal the ruling. The case is now scheduled for mention on June 25 to confirm compliance ahead of the hearing of the substantive appeal. In the meantime, he remains incarcerated unless he opts to pay the Sh53 million fine as an alternative to continuing with the jail term.
In his latest plea, Waititu had argued that remaining in prison while his appeal was pending could result in him serving a significant portion of the sentence, only for the appeal to potentially succeed. He expressed readiness to pay the Sh53 million fine in case his appeal fails, arguing that it was unfair and illogical for him to serve part of the jail term and later pay the fine if the conviction stands.
His lawyer emphasized that Waititu was not a flight risk, citing his prominence as a public figure with a known residence and a history in politics. Kibe contended that the risk of an appeal succeeding after part of the sentence has been served constitutes an exceptional circumstance, which should justify granting bail.
The prosecution, however, through counsel Vincent Monda, maintained that Waititu’s application failed to demonstrate any exceptional circumstances that could warrant release on bond pending appeal.
Citing Article 49(2) of the Constitution, Waititu’s lawyer argued that the spirit of the law discourages remanding individuals in custody when the offence they are convicted of carries the option of a fine. He further argued that imprisonment in such circumstances runs counter to constitutional principles.
Nonetheless, the court found no compelling reason to overturn its previous decision, leaving Waititu to pursue the appeal process from prison or opt for the financial penalty to regain his freedom.
