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Supreme Court fires strong warning to governors facing graft charges

By Amos Kareithi | October 25th 2021

Supreme Court, Nairobi. [Fidelis Kabunyi, Standard]

Governors facing graft charges have reason to worry after Supreme Court declared that courts were justified to bar them from their offices until they are cleared.

The Friday judgment followed an appeal by former Kiambu Governor Ferdinand Waititu challenging Court of Appeal’s upholding of a lower court’s decision to bar him from accessing his office until a graft case against him was determined.

The governor appealed before Supreme Court Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola on February 4, 2019. He was seeking orders to set aside the judgment of the Court of Appeal delivered by Justices Daniel Musinga, Kairu Gatembu and Agnes Murgor on December 20, 2019.

The case arose after Waititu was arrested and, alongside Susan Wangari, charged, with three counts of dealing with suspect property and conflict of interest.

He denied all the counts before a chief magistrate’s court on July 29, 2019. He was granted conditional release upon payment of Sh15 million cash bail, or a bond of Sh30 million with surety of a similar amount.

The trial court also warned Waititu not to access his public office until the hearing and determination of his case, conditions he felt were too punitive and calculated to kick him out.

Waititu appealed the decision in High Court, arguing that the bail and bond terms were excessive and amounted to a removal and/or suspension from office.

His application was rejected by High Court judge Ngenye Macharia on August 2019. Justice Ngenye held that attaching conditions to the grant of bail was not tantamount to removal of the appellant from office.

Former Kiambu Governor Ferdinand Waititu in court. [Collins Kweyu, Standard]

The judge further found that the trial magistrate did not err in barring Waititu from accessing his office since the charges against him were grave owing to his position, the weight of the offence and the public interest. In the High Court’s opinion, there was need for stringent bail terms to be attached.

The judge also noted that the setting of bond or bail amounts is an exercise of discretion and that an appellate court should be slow and cautious to interfere with. It is this decision that Waititu appealed against at the Court of Appeal which, however, was not convinced by his arguments.

“The circumstances under which the alleged offences were committed and that some of the prosecution witnesses were county staff who are answerable to the appellant, it was not far-fetched for the prosecution to contend that the appellant would most likely interfere with witnesses or conduct himself in a manner likely to compromise the case if he was not barred from accessing his office during the pendency of the trial,”  the judges ruled.

The appeal court also declined Waititu’s prayer that the bail and cash bail be lowered, observing that the trial court had discretionary powers to uphold the terms and this mandate should not be interfered with “unless it was shown that the decision was plainly wrong, or granted without consideration of relevant factors”.

When Waititu went to the Supreme Court, he was seeking the Sh15 million cash bail be lowered to Sh2 million and the bond of Sh30 million be reduced to Sh5 million. While prosecuting his appeal, Waititu argued that the Constitution and the County Governments Act do not envisage the constitutionally delineated functions of governor being taken up by a deputy governor while the former is still in office.

He told Supreme Court that Court of Appeal had not appreciated legal implications of temporary deprivation of the powers of a governor’s access to office, which resulted in bad precedent, which should not be encouraged.

The court sealed Waititu’s fate thus: “For the above reasons, the appeal therefore fails” and ordered him to bear the costs of the case.

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