Waititu seeks bail review, says Sh53.5m bank guarantee is unattainable

Former Kiambu Governor Ferdinand Waititu leaves a Milimani court on Thursday, February 13, 2025. [Collins Kweyu, Standard]

Jailed former Kiambu Governor Ferdinand Ndungu Waititu Babayao has filed a fresh application seeking review of his bail terms pending his 12-year sentence appeal.

In his application filed under certificate of urgency, Waititu seeks to have his bail reviewed citing the need to seek better medical treatment due to existing health concerns and his inability to secure the Sh53.5 million bank guarantee required for his release.

Waititu, who was sentenced to 12 years in prison or a fine of Sh53.5 million for Sh588 million corruption-related charges in February 2025, was granted bail on July 31, 2025, specifically to enable him seek better treatment outside prison due to ill health.

However, more than six months later, he remains in custody at Kamiti Maximum Prison, unable to meet the bail conditions.

Through his lawyer Christopher Ndolo Mutuku, Waititu seek to substitute the bank guarantee requirement with a cash security deposit of Sh20 million.

Lawyer Mutuku emphasised that the court had initially admitted Waititu to bail in consideration of his ill health, to enable him seek better treatment out of prison.

However, the terms imposed for admission to bail have proved impossible to meet, rendering the reasons for granting bail superfluous.

"That in consideration of the applicant's ill-health, this Hon. Court admitted him to bail on 31st July, 2025, in order to enable him seek better treatment out of prison," the certificate states.  

Lawyer Mutuku stated that the court was informed of the difficulty on December 18, 2025, when the judge directed the appellant to file a formal application for substitution of the bank guarantee with suitable cash bail.

"That despite all reasonable efforts, the applicant has been unable to secure a bank guarantee for the stated amount, and it is now more than 6 months since the issuance of the said order," Mutuku states.

The lawyer stated that the court was informed of the difficulty on December 18, 2025, when the judge directed Waititu to file a formal application for substitution of the bank guarantee with suitable cash bail.

"That despite all reasonable efforts, the applicant has been unable to secure a bank guarantee for the stated amount, and it is now more than 6 months since the issuance of the said order," the application states.

"That it is quite clear that the applicant will not be able to secure the said bank guarantee and the order of the court will be in vain," the lawyer adds.

The application invokes the doctrine of impossibility, also known as the doctrine of frustration, arguing that Waititu should not be held to an impossible bargain.

"That the fact that the applicant has been unable to secure a bank guarantee for the past 6 months is prima facie evidence that he is incapable of doing so, and granted that the Court was sufficiently satisfied that he ought to be admitted to bail, it behooves this Court to lessen the conditions it set for his release on bail," Mutuku says.

The application further contends that while Waititu himself had proposed the Sh53.5 million bank guarantee as a bail condition, changed circumstances have made compliance impossible.

Lawyer Mutuku's application emphasises that bail conditions should not be unsurmountable, oppressive, or unattainable, noting that the spirit behind bail pending appeal recognizes that a conviction may be overturned.

Waititu was sentenced by Milimani Anti-Corruption Court Chief Magistrate Thomas Nzyoki following his conviction in a Sh588 million road construction tender case involving Testimony Enterprises.

The court found that he received Sh20 million kickbacks from the contractor and that the tender was issued fraudulently and illegally.

The fresh application for review of bail terms is pending hearing before Justice Lucy Njuguna.