• To add an insult to the injury, Ojienda argued that the magistrate further failed to define when Waititu can visit his offices.
• He says Court should also remove the limitation barring Waititu from accessing his office as he remains innocent until proven guilty.
Image: FILE
Kiambu Governor Ferdinand Waititu on Monday formally opposed the Sh15 million bond terms imposed on him.
Through his lawyer Tom Ojienda, Waititu told the court that the total sum for which he is charged amounts to Sh50 million which ought to have been instructive in setting bond terms.
The governor was last week placed on a bail of Sh15 million and bond of Sh30 million.
But Ojienda in his submission said the terms are excessive
He said the court should also remove the limitation barring Waititu from accessing his office as he remains innocent until proven guilty.
Ojienda said it is worrying that a charge has become a presumption of guilt in this country.
He said the Trial Magistrate in such a ruling abused his discretion in granting bail terms.
“There is fragrant abuse of discretion by the lower court. This alone is sufficient ground to term bond as irrational, questionable and excessive,” he said.
Ojienda said it is no longer clear what guides courts in granting bond or the option of cash bail.
According to him, Justice Hedwig Ong'undi at some point set conditions for granting bail which he said were a gravity of the offence, whether accused is a flight risk or had previously jumped bail.
“It’s absurd when Ogoti granted Samburu Governor Moses Lenolukulal bail of Sh100 million which was later reviewed by Justice Mumbi Ngugi,” he said.
He questioned how the same magistrate granted Treasury CS Henry Rotich a Sh15 million bail for an offence of Sh62 billion.
“It’s important for this court to deal with predictable bond terms and predictable judicial process. Bail terms of between Sh1 to Sh2 million is fair for a charge of Sh51 million,” Ojienda added.
The lawyer said the presiding judge in the ruling limited Waititu from accessing his county offices.
He said though the judge had indicated the case has ignited public interest and controversy would invite chaos in Kiambu county, the ruling was wrong because no affidavit was sworn by the investigative officer indicating that the county would experience chaos.
To add an insult to the injury, Ojienda argued that the magistrate further failed to define when Waititu can visit his offices.
“The Magistrate went beyond the call of duty because even in the Samburu Governor case, he was allowed to visit his office by the court. This court cannot allow orders that expressly violate the constitution,” Ojienda said.
“The office Baba Yao occupies is a special position. The DG cannot exercise any executive powers with respect to running the county government except as may be delegated by the Governor.”
Ojienda also said the court cannot remove a governor from office through a ruling on bail terms.
"What trial Magistrate Mugambi did was tantamount to Waititu's removal. We pray that you find that decision of Mugambi calls for revision. Remove the limitation for Waititu barring his access to office as he remains innocent until proven guilty," he said.
"It's worrying that a charge has become a presumption of guilt in this country."
On behalf of Luka Mwangi, (the third accused) the lawyers are also seeking a revision of his bail.
He was placed in the same category as that of the governor.
Luka is also charged with abuse of office.