Former Kiambu Governor Ferdinand Waititu
The embattled county chief, currently serving a 12-year prison sentence for corruption, is still seeking bail as he continues to pursue his appeal.
Meanwhile, Deputy Chief Justice Philomena Mwilu took a strong stand against Advocate Nelson Havi, dismissing his claims of 'judicial influence.'
These were just some of the key cases that unfolded in court this week.
Below is a summary of how these matters developed.
HAVI AND SUPREME COURT JUDGES LEGAL BATTLE
At the constitutional and human rights division, Deputy Chief Justice Philomena Mwilu took aim at advocate Nelson Havi for alleging that the Chief Justice either controls or will control the judges that may be constituted to hear and determine petitions challenging their removal from office.
Through her advocate, Julius Kemboi, Mwilu described these remarks as an insult to the judicial oath. Mwilu emphasized that the CJ does not control the judges she appoints as a bench to hear and determine matters before court.
She was responding to objections raised by the advocate, who claims that the High Court has no jurisdiction to hear the petitions filed by the Supreme Court judges challenging the removal from office.
Havi on Wednesday also told Justice Bahati Mwamuye not to refer the matters to the CJ for empanlment of a bench. He contended that the cases do not raise any weighty constitutional issues that would justify referring them to the CJ. He argued that such a referral could lead to an absurd outcome.
"If you were to certify the matter and refer the matters to the CJ, she may empanel a favourable bench, an absurdity that shouldn't be allowed to prevail," said Havi.
"The other possible avenue would be the CJ declining to take action causing the petitions before court to stall. The conservatory orders would then remain in perpetuity. It's an absurdity that ought not to be countenanced," he remarked.
But advocate Paul Nyamodi representing one of the parties disagreed with Havi asking the court to refer the matters to the CJ if it is satisfied that the issues raised can only be handled by more than one Judge.
"We should avoid interpreting our constitution in a manner that leaves it hamstrung or crippled to responding to situations that are emerging as this," said Nyamodi.
He stressed that the CJ and DCJ who are litigants in the cases before the High Court, must be allowed to empanel a bench if Mwamuye finds it proper to have the matters handled by more than one judge.
The process of empaneling a bench, he stressed, is not a judicial act.
"I submit that if you are persuaded that indeed you have the authority and go on to consider requests for empanlment and find it merited, then you should have no difficulty in making the appropriate directions, not withstanding the CJ and DCJ are parties in this matter," remarked Nyamodi.
Justice Mwamuye is currently presiding over the petitions filed by Mwilu and Justice Mohamed Ibrahim. Both parties had obtained orders blocking any proceedings before the JSC related to their removal from office.
What followed was Havi filing a preliminary objection challenging the court's power to inquire into proceedings filed before the Judicial Service Commission (JSC) concerning the removal of the Supreme Court judges.
Havi asserts that the top judges are obligated to pursue the only remedy available to them under Article 168(8) of the Constitution, which he says requires them to first submit to the jurisdiction of the JSC. But the Judges have argued that the JSC is not the High Court and it doesn't have the power to interpret the constitution.
WAITITU BAIL BID
The former Kiambu County Chief Ferdinand Waititu made another attempt to secure bail while he appealed a 12-year jail term after being convicted of graft.
With a fresh set of lawyers, Waititu argued that there was insufficient clear evidence to prove his guilt beyond a reasonable doubt in the Sh 588 million graft case.
The court in February this year found Waititu and his wife Susan Wangari guilty of conflict of interest and dealing with suspect property offences after corruptly receiving millions from Kiambu county through a multi-million road tender.
The court subsequently fined Waititu Sh54.5 million or, in default, served a 12-year jail term for receiving the kickbacks from Charles Mbuthia, a director of Testimony Enterprises Ltd., five years ago. Testimony was the company that was awarded the tender.
Also found guilty were the directors of Testimony and roads engineer Luka Wahinya. But Waititu, in his fresh documents before the Anti-Corruption High Court, explains that there is no direct evidence connecting the money received by him and his companies to the awarding of the tender to Testimony Enterprises Ltd.
"In the absence of such evidence, my conviction did not meet the necessary standard of proof beyond a reasonable doubt," Waititu states.
He also argues that the trial Magistrate Thomas Nzyuki made a mistake when he convicted him on the premise that the funds in the accounts of Mbuthia and Testimony were acquired through corrupt conduct. He has presented these arguments in a supplementary petition as he seeks bail pending appeal.
This marks the second time he is applying for bail.
"The sentence is harsh and oppressive, and the continued imprisonment of my client will cause a miscarriage of justice that is both unlawful and unjustified," says his advocate, Kibe Mungai.
Waititu maintains that the charges against him were defective and that the trial court failed to take into consideration that Testimony enterprises had other monies in its bank account and therefore money transferred to him was not 'invariably for the county Government of Kiambu.' He has pleaded with the court to grant him bail pending the hearing of his appeal.
Justice Lucy Njuguna directed the DPP to respond to the supplementary petition within three days. The matter will be heard on March 26.
