• Trial magistrate says the ruling is intended to ensure the integrity and credibility of the trial and to safeguard the public interest.
• Prosecution objects, says being barred from accessing office does not amount to removal
Kiambu Governor Ferdinand Waititu has accused magistrate Lawrence Mugambi of abusing his discretion when he barred him from accessing his office.
Waititu through lawyers Tom Ojienda and Nelson Havi told judge Ngenye Macharia that the magistrate went beyond the call of duty in imposing the condition while he issued the bail terms.
Last Monday, Waititu was charged alongside his wife Susan Wangari and eight others over a Sh588 million irregular tender. Waititu was subsequently released on Sh15 million bail on condition that he should not access his office.
His wife was ordered to pay Sh4 million. Mugambi said the order barring the county chief from accessing his office doesn’t violate the Constitution or amount to his removal "but is intended to ensure the integrity and credibility of the trial and to safeguard the public interest".
But Ojienda on Monday faulted the magistrate’s decision saying he should have at least defined when Waititu can access the county offices as is the case with other governors facing corruption-related charges.
“There has been a flagrant abuse of discretion by the lower courts. It is no longer clear what guides courts in granting bond or the option of bail. The magistrate went beyond the call of duty because even in the Samburu Governor Moses Lenolkulal's case, he was allowed to visit his office,” Ojienda said.
Waititu cited a case in which Treasury CS Henry Rotich was granted Sh15 million for an offence involving loss of Sh63 billion.
He also mentioned Lenolkulal's case where he was granted a bond of Sh150 million and a surety of the same amount or an alternative of Sh100 million bail by Anti-Corruption magistrate Douglas Ogoti. He was charged in April with four counts of abuse of office and conflict of interest leading to the loss of Sh84.6 million public funds.
Waititu asked why Rotich would be granted similar bail terms as he yet the amount of money involved was bigger.
“That alone is sufficient grounds to term my bond as irrational, questionable and excessive. It does not make any sense why Rotich’s terms are similar to my client's yet he only occasioned the loss of Sh50 million,” Ojienda said.
The lawyer said Sh1 to Sh2 million is fair for Waititu "who is only facing a charge of Sh51 million".
Waititu argued that Justice Mumbi Ngugi, in reviewing Lenolkulal's case, went beyond her call of duty when she dealt with the constitutionality of Anti-Corruption and Economic Crimes Act.
Ngugi observed that ACECA, apart from obscuring, helps destroy the 'political hygiene' and is contrary to the constitutional requirement of integrity in governance. She said allowing persons facing criminal charges to public offices entrenches corruption and impunity.
Mugambi relied on Ngugi's ruling when granting Waititu bail.
But the governor's counsel said the judge was only required to review his bail terms.
“We pray that you find that his decision calls for revision. Remove the limitation barring Waititu from accessing his office as he remains innocent until proven guilty. It’s worrying that a charge has become a presumption of guilt."
In response, senior assistant DPP Alexander Muteti urged the court not to interfere with the discretion of the magistrate. He said Waititu's being barred from office does not amount to removal.
He argued that no vacuum was created by barring him from office and that the office has an able deputy.
Court will deliver its ruling on Thursday afternoon.
Edited by R.Wamochie