Former Kiambu Governor Ferdinand Waititu on Wednesday breathed a sigh of relief after the High Court allowed his request to apply again for bond pending hearing of his appeal.
Waititu has been in prison since February after a magistrate’s court sentenced him to 12 years in prison or pay a fine of Sh53 million following his conviction in a corruption case.
His initial application for bond was dismissed by Justice Lucy Njuguna of the High Court's Anti-Corruption and Economic Crimes division on March 3.
However, Waititu has since filed a fresh application before the same court, seeking to be released on bond pending the hearing of his appeal.
His lawyers, led by Kibe Mungai, had sought leave to amend the application.
However, that bid was being opposed by the Director of Public Prosecutions.
Justice Njuguna on Wednesday ruled that Waititu’s application to be allowed to amend his application for bond was merited.
“After considering the submissions from both sides, I found that a petition of appeal may be amended with the leave of the court. The application has merit and is therefore granted,” Justice Njuguna ruled.
The ruling means Waititu can now put in an amended application seeking to be released on bond pending the hearing and determination of his appeal.
The judge directed his lawyers, led by Kibe Mungai and Ndegwa Njiru, to file their amended petition by Friday.
The Director of Public Prosecutions, led by counsel Vincent Mond, will then file and serve their responses by Tuesday next week before the matter is mentioned the following day.
In his fresh bid for freedom, Waititu says he will suffer the risk of having served part of the sentence if his appeal succeeds.
The former governor says he’s prepared to pay up the Sh53.5 million fine if his appeal fails.
“It is neither fair nor logical for him to serve part of the sentence only for him to pay the fine in the event that his appeal does not succeed,” Kibe says in their affidavits.
He says Waititu is not a flight risk, given he is a well-known political figure who has been in the public limelight and has a permanent abode.
The Director of Public Prosecutions, through counsel Vincent Monda, had initially opposed Waititu’s bid for bond, saying his application did not raise any exceptional circumstances.
But in the fresh application, Kibe says the spectre of an applicant for bail pending appeal serving a substantial part of the sentence amounts to exceptional circumstances to justify grant of bail.
Kibe, while citing Article 49(2) of the Constitution, says the law is against remanding in custody a person charged with an offence punishable by a fine only.
“It should be inferred that the spirit of the Constitution is against imprisonment where an applicant has been sentenced to serve with an option of paying a fine,” Waititu argues.
He says that his appeal has overwhelming chances of success with numerous substantial points of law.
