The High Court is expected to hear an application by Former Kiambu Governor Ferdinand Waititu seeking bail pending the determination of his appeal against a 12-year prison sentence after being convicted on corruption-related charges.
Waititu started serving his jail term two weeks ago after a Magistrates court found him guilty of conflict of interest and dealing with suspect property offences after corruptly receiving millions from Kiambu county through Sh588 million roads tender.
He was given an option of paying a fine of Sh53.7 million or serve 12 years behind bars.
But his Advocate Danstan Omari has since filed an application at the high court seeking to be admitted to reasonable bond pending the determination of his appeal.
He has urged the court to allow the bond security he had deposited during trial to be applied as a continuing bond to secure his release. It was valued at Sh50 million at the time.
Waititu says he is likely to suffer if he continues to remain in custody given his medical condition of violent high blood pressure which needs constant urgent medical care.
"I believe that the instant appeal has a chance of success and that I will be prejudiced if the sentence is executed," he says.
Waititu says trial Magistrate Thomas Nzyuki failed to take into account his evidence and did not weigh it against that of the Prosecution in making a just conclusion.
Separately, different judges of the high court are expected to give directions to fresh applications filled by Supreme Court Judges challenging proceedings at the Judicial Service Commission that starts sitting today.
On Friday Chief Justice Martha Koome obtained orders suspending any further proceedings touching on her removal from office.
The other judges have followed suit and filed their separate applications before the Constitutional division of the High Court.
Koome in her application argued that the JSC lacks both the authority and the constitutional mandate to entertain any claims against her, or any judges of the Supreme Court.
She asserts that the power to remove a judge is narrowly defined by the Constitution, specifically under Article 168(1) of the Constitution.
Some of the grounds are inability to perform functions of office arising from mental or physical incapacity, bankruptcy, incompetence, or gross misconduct.
Koome argues that none of these grounds are applicable in her case, and stresses that the JSC has no jurisdiction over decisions made by the Supreme Court in the lawful exercise of its constitutional role as outlined in Article 163.
The two petitions pending before the JSC against the Supreme Court judges were filed by city lawyer Nelson Havi and Christopher Rosana.
Havi's petition accuses the judges of gross misconduct, specifically referencing their actions during the delivery of the BBI judgment in March 2022, which he claims was marred by misbehaviour.
Meanwhile, Rosana’s petition is rooted in the controversial ban imposed on the Ahmednasir Abdullahi law firm—a move she believes warrants judicial scrutiny.
Koome says she has since been served with notices to respond to the petitions which she says has the effect of undermining the Apex court as well as the integrity of the constitution.
"Both petitions are based on decisions made by the Supreme Court or the exercise of powers conferred on the Supreme Court by the Constitution," she says
Based on this, the CJ argues that the constitution does not grant the JSC any powers to intervene or determine any issue on the exercise of powers by the Supreme Court whether judicial, functional or institutional.
"Allowing the JSC to entertain, hear or determine the two petitions would amount to a mockery of justice as the constitution must be applied in a manner that upholds public interest and ensures that the integrity of the judiciary is not undermined," says Koome.
According to the court documents, the JSC has forwarded both the Rosana petition and Havi petition to the CJ with instructions that she responds in 21 days. The 21 days lapse on Monday, February 24.
"Consequently there is a very real and imminent risk that the JSC will forward both petitions to the President for constitution of a disciplinary tribunal to determine the same," says Koome.
Koome argues that should she or other Supreme Court judges be subjected to a disciplinary process initiated by the JSC, the damage to be sustained would be irreversible.
