Former Kiambu Governor Ferdinand Waititu on Thursday suffered a huge blow after the High Court threw out his second bid for release from prison.
Waititu, through lawyer Kibe Mungai, had moved the High Court seeking to be released from prison on bond or bail pending the hearing of his appeal.
The former governor has been in prison since February
after a magistrate’s court sentenced him to 12 years in jail with an
alternative fine of Sh53 million following his conviction in a corruption case.
His initial application for bond was dismissed by Justice Lucy Njuguna of the High Court's Anti-Corruption and Economic Crimes division on March 3.
However, Waititu filed a fresh application before the
same court, seeking to be released on bond pending the hearing of his appeal.
His lawyers had sought leave to amend the application, a request that was alloed by the court despite opposition from the Director of Public Prosecutions.
In her ruling on the second application to be granted
bond or bail, Justice Njuguna said her court was functus officio meaning it
could not revisit or modify a decision it had already made.
The judge said the court identified two issues for determination in Waititu’s application: whether the court could modify its decision and whether the matter in question was res judicata (meaning the matter had been litigated and definitively resolved.
The judge said issues that Waititu raised in his amended application for bond had been raised in the initial similar application and that they had already been dealt with.
She said the application was not seeking a review of the bond/bail decision neither was it challenging the ruling itself.
Instead, the court found the application to be raising issues that had already been raised and a decision made.
“In so far as the present application is concerned, 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,” Justice Njuguna ruled.
Waititu and his lawyers were granted leave to appeal the ruling. In the meantime, the case was set for mention on June 25 to confirm compliance ahead of hearing of the substantive appeal.
The ruling means Waititu will remain in prison until his appeal is heard and determined. He can alternatively pay the Sh53 million fine to secure his release.
In his fresh bid for freedom, Waititu had argued that he
would suffer the risk of having served part of the sentence if his appeal
succeeds.
The former governor said he was prepared to pay up the Sh53 million fine if his appeal fails.
“It is neither fair nor logical for him to serve part of the sentence only for him to pay the fine in the event that his appeal does not succeed,” Kibe said in their affidavits.
He said Waititu was a not a flight risk given he is a well-known political figure who has been in the public limelight and has a permanent abode.
The Director of Public Prosecutions through counsel Vincent Monda had opposed Waititu’s bid for bond, saying his application did not raise any exceptional circumstances.
However, Kibe had maintained that the spectre of an applicant for bail pending appeal serving a substantial part of the sentence amounts to exceptional circumstances to justify grant of bail.
Kibe while citing Article 49(2) of the Constitution said the law is 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 with an option of paying a fine,” Waititu argued.
