• Defence says court can’t turn itself into and electorate and end Waititu’s terms prematurely.
• Says charges are on procurement, 'no money lost, no non-delivery claims in the project as it is 60 per cent complete'.
Kiambu Governor Ferdinand Waititu on Monday put up a vigorous fight to stay in office, despite the Sh588 million fraud charges levelled against him.
Waititu surrendered to the Ethics and Anti-Corruption Commission on Sunday following a directive on Saturday that he was wanted to face corruption-related charges.
Through lawyers Tom Ojienda and Nelson Havi, Waititu implored the court not to lock him out of hisoffice or prohibit him from executing his responsibilities, as his trial may take as long as 24 months to be determined.
Waititu was charged alongside his wife Susan Wangari Ndung’u. Also charged were Luka Mwangi, Charles Chege, Beth Wangechi, Zacharia Njenga, Joyce Ngina, Simon Kabocho, Anselem Gachukia, Samuel Muigai, Testimony Enterprises Limited, Saika Two Estate Developers Limited and Delta Hotel.
It is alleged that between July 2 last year and March, in Kiambu county, Waititu knowingly acquired an indirect private interest of Sh25.6 million in respect to payments made to Testimony Enterprises for contracts awarded by the county.
He faced another count together with his wife and a company they co-founded —Bienvenue Delta Hotel. It is alleged that between October 3 last year and January, the two jointly received Sh7.2 million from Testimony Enterprises, having reason to believe it was acquired from the Kiambu government through corrupt conduct.
Waititu cited a recent ruling by Anti-corruption High Court judge Mumbi Ngugi that would stop him from exercising his functions at the county.
She said governors facing charges must step aside for the duration of their trials.
Mumbi also limited Samburu Governor Moses Lenolkulal from accessing his office after his implication in corruption-related charges.
Waititu claims Mumbi’s decision was in conflict with that of Justice Hedwig Ong’undi of the same division. She allowed former NLC chairman Muhamad Swazuri to return to the office as long as he promised not to interact or interfere with witnesses.
Ong’undi issued the order after trial magistrate Lawrence Mugambi ruled that he could only access the office in the company of a police officer. The undertaking was meant to remain in place as long as the trial was pending, unless altered by the magistrate or High Court.
Mumbi ruled that the Anti-Corruption and Economic Crimes Act requires the governor to leave his office while the criminal charges against him are pending.
'Functions not for deputy'
But defence lawyer Ojienda said the court can’t turn itself into an electorate and end Waititu’s terms prematurely because he is facing fraud charges.
The Constitution provides that the office of the governor may become vacant if the holder dies, resigns, ceases to be eligible to be elected, is convicted of an offence punishable by imprisonment for at least 12 months or is removed from office.
It also provides that a governor may be removed from office due to physical or mental incapacity to perform, a gross violation of the Constitution, abuse of office or gross misconduct.
But under the provisions of the County Government Act, in cases where the governor is unable to act, the deputy governor performs his functions.
But Ojienda told magistrate Mugambi that the functions of a deputy governor are limited by the Constitution and the CGA.
"There are functions the deputy can’t perform unless delegated by the governor. [Deputy governor James] Nyoro should wait for his time,” Ojienda said.
The case revolves around a tender for the upgrading of gravel roads in the county.
The accused persons have since been charged with irregularly procuring the Sh588 million tender that was awarded to M/s Testimony Enterprises Ltd in 2017-18.
Ojienda said the tender relates to tarmacking of a road that is 60 per cent complete.
He said no reference in the charges states that any money has been lost in the process. "The charges are about the procurement process. No allegation relates to non-delivery of a tender that’s been awarded," he said.
No flight risk
Ojienda urged the court to grant the accused persons reasonable bail terms.
"Baba Yao is a top political player who can’t flee. The rest are civil servants of Kiambu county who earn Sh125,000. They have no financial muscle to escape anywhere and can only rotate around the county,” he said.
Ojienda added that the employees were only executing their oath of office as members of the tender committee.
He asked the court to admit Waititu a bond of Sh4 million and a bail of Sh2 million and Sh500,000 or a bond of Sh1 million for his wife.
For Saika Developers, he asked for Sh1 million bond or Sh500,000 bail.
The defence set out and shared various payslips to demonstrate to the court that the accused are civil servants and earn a salary of no more than Sh124,000 . The defence requested that they be admitted on Sh200,000 bond or Sh50,000 bail.
Ojienda requested the court to take into consideration that one suspect's (Muigai's) wedding is on Saturday and he was arrested while making preparations for the nuptials.
Assistant DPP Alexander Muteti said they were not opposing bail but wanted certain terms to imposed on Waititu.
Muteti urged the court to order the governor to surrender all his travel documents and order that he does not return to the office with immediate effect.
He argued that since the other accused persons will stand interdicted following the charges, Waititu can’t have the privilege to continue enjoying power while facing corruption charges.
He said Deputy Governor JamesNyoro is not a lame duck and can take over once Waititu is put on trial.
“We urge you to look at recent trends when it comes to matters of corruption. Have no remorse because we are all equal before the eyes of the law,” the prosecutor said.
Mugambi said he will deliver a ruling tomorrow at 10:30 am.
He directed that Waititu, his wife and Wangechi be held at the EACC police station and the other accused persons at Kilimani police station where they’ve been for the last two nights, pending the court’s decision.
The court also ordered Wangechi be taken to hospital after her lawyer John Swaka said she is asthmatic.
Edited by R.Wamochie