Waititu bail triggers legal debate

Kiambu Governor Ferdinand Waititu leaving his Runda home after being arrested by the officers of Ethics and Anti-Corruption Commission. He was released on Sh500,000 anticipatory bail yesterday. [John Muchucha/Standard]

The decision by the Kiambu court to grant area governor Ferdinand Waititu Sh500,000 anticipatory bail has stirred legal debate.

On Thursday, Kiambu Principal Magistrate Brian Khaemba gave Waititu bail ordering him to present himself to the police alongside his lawyers. The court verdict has however divided lawyers, where some fault the court's jurisdiction to issue such bail, while the other faction believes that it was a constitutional decision.

Nairobi-based lawyer Donald Kipkorir reacted to the turn of events pointing that the Magistrate acted in breach of the Constitution by issuing the bail.

He even stated that the Magistrate should face legal consequences.

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"Anticipatory Bail, is an innovative right not in our Constitution but can only be given by the High Court. The alleged Anticipatory Bail given by a Magistrate in Kiambu to Ferdinand Waititu should be torn up & the Magistrate dismissed. High Court has exclusive jurisdiction," he posted on his twitter page.

Kipkorir's post triggered a counter reaction from another lawyer, Samuel Makori, High Court Advocate and managing partner of Makori and Karimi Advocates who opposed him.

Makori said: "Senior.... Sec 8 - Magistrate's Court Act; "Subject to Art 165(3)(b) of the Constitution ...a magistrate's court shall have jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom..."

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But in his response, Mr Kipkorir insisted that what transpired was a violation of the Constitution. He said that any statute of law that violates the Constitution is null and void, and that, Magistrates have no jurisdiction of interpreting the Constitution and determining violation or threatened Violation of Bill of Rights.

The side that supports Governor Waititu's anticipatory bail received a backing from another figure in legal circles-Nelson Havi, another Advocate of the High Court.

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Mr Havi argued that Magistrates are empowered by the law to issue bail and such entails anticipatory bail. He also cited other cases in which Magistrates issued such types of bail.

"Magistrates are empowered by Articles 25 (a) & (b), 47(2), 49(1), 244(c) & 159(2) of the Constitution to issue bail. That power includes the grant of an order of anticipatory bail. It was so held in Susan Mbinya Musyoka v Inspector General of Police & another [2016] eKLR," he posted on his twitter page.

He then declared that Principal Magistrate Brian Khaemba did not make legal error in granting such a prayer. Havi said:

 "It follows therefore, that Hon B. Khaemba had jurisdiction to grant Ferdinand Waititu anticipatory bail. That is the law, unless of course, someone wants to do a Bernard Chunga-CJ Madan on the Learned Magistrate. That appears to be the order of the day in today's Judiciary."

Anticipatory bail issued to Mr Waititu implies that he cannot be arrested but cannot only be summoned to appear at a police station in the company of his legal team.

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"Any party served with this order and disobeys the same or any part thereof shall be guilty of contempt of court and liable to fine or to imprisonment for a term not exceeding six months or both," read the court order issued yesterday.

Governor Waititu was arrested and taken to the Ethics and Anti-Corruption Commission (EACC) offices for questioning yesterday. This is after detectives stormed his Runda home in search of crucial documents for investigations on county's missing funds.

The Governor is being investigated over Sh588 million unaccounted for in irregular procurement deals by the Kiambu County government.

A senior EACC official told Standard Digital the agency's lawyers were studying the matter and would certainly act on it.

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Ferdinand WaitituKiambu Principal MagistrateBrian KhaembaAnticipatory bail