Waititu makes second application for bail, says he can pay fine if appeal fails
Through his lawyer, Kibe Mungai, Waititu argues that it is neither fair nor logical for him to serve part of the sentence, only to pay the fine if his appeal does not succeed.
Former Kiambu Governor Ferdinand Waititu has told the High Court that there is no need for him to remain in prison pending the hearing of his appeal against the 12-year sentence for his role in the Sh588 million scandal since he is able to pay the Sh53.5 million fine if his appeal fails.
In his second application for bail and bond, Waititu has urged the Anti-Corruption High Court to consider that he was given the option of paying a fine, an option he will certainly utilise should his appeal against the conviction and sentence be unsuccessful.
More To Read
Through his lawyer, Kibe Mungai, Waititu argues that it is neither fair nor logical for him to serve part of the sentence, only to pay the fine if his appeal does not succeed.
Mungai cited a Court of Appeal ruling which stated that the prospect of an applicant for bail pending appeal serving a substantial part of their sentence amounts to exceptional circumstances justifying the grant of bail.
The lawyer contended that, by the same reasoning, the High Court should interpret the imprisonment of an applicant—such as Waititu—who has been sentenced with an alternative fine, as an exceptional circumstance warranting his release pending the determination of his appeal.
"Taking into account the prohibition in Article 49(2) of the Constitution against remanding in custody a person charged with an offence punishable by a fine only, it should be inferred that the spirit of the Constitution is against imprisonment where an applicant has been sentenced to serve a term of imprisonment with an alternative of paying a fine," stated Mungai.
"Given the fact that under Article 50(3)(q) of the Constitution, the right of a convicted person 'to appeal or to apply for review by a higher court as prescribed by law' is deemed an integral part of the right to a fair trial, the need to uphold the applicant's rights to a fair hearing during the appeal process should be considered a sufficient reason to justify his admission to bail pending appeal."
Waititu's appeal arises from his conviction on four counts of corruption.
The charges relate to a road construction tender awarded to Testimony Enterprises Limited under the provisions of the Public Procurement and Asset Disposal (PPAD) Act. The contract was allegedly awarded to a company that did not qualify.
Mungai argues that, under the PPAD Act, the responsibilities of public procurement and asset disposal for a county government are vested in the county treasury, and the governor plays no direct or indirect role.
The lawyer further stated that the prosecution did not tender any direct evidence to prove that Waititu was involved in awarding the construction tender to Testimony Enterprises Limited.
He added that upon being awarded the tender, the company proceeded with the contracted works and was subsequently paid for the actual work done. Therefore, the company and its directors had every right to spend their lawfully obtained money as they saw fit.
Mungai maintains that money paid by a county government for work done under a contract that has not been challenged or deemed unlawful under the PPAD Act cannot be classified as proceeds of crime.
"The charges against Waititu were defective, as the prosecution's evidence indicated that the amount received was Sh133,399,776, yet the charge sheets state that the monies paid amounted to Sh147 million," Mungai argued.
"The inconsistency between the documentary evidence presented by the prosecution, as set out in the charge sheet and bank statements, diminishes the probative value of the prosecution's evidence and undermines its reliability."
Top Stories Today
