Waititu is now a free man, his lawyer says in court

Former Kiambu governor Ferdinand Waititu/FILE

Former Kiambu Governor Ferdinand Waititu is now a free man after the High Court reviewed his bail terms pending the determination of his appeal in the Sh588 million Kiambu roads graft case.

His lawyer, Jeremy Njenga, said the development in court on Thursday when the matter came up for mention before the High Court Anti-Corruption and Economic Crimes Division.

“I am holding brief for the appellant who is now a free man thanks to your orders,” Njenga told the court.

He was referring to earlier directives that reviewed Waititu’s bond terms and paved the way for his release from Kamiti Maximum Prison.

The former governor had been serving his sentence following his conviction in February 2025 in connection with the irregular award of a Sh588 million road tender in Kiambu County.

Justice Wilfrida Okwany had earlier granted Waititu a reprieve after allowing an application seeking review of the bail terms pending appeal.

In the ruling, the court varied the earlier bond terms, reducing the bail requirement and allowing him to secure his release as he pursues his appeal against conviction and sentence.

The judge set bail at Sh20 million cash, a revision from the earlier requirement of a Sh53 million bond with a bank guarantee, terms that had kept the former governor in custody.

The Thursday mention also addressed applications filed by Waititu’s co-appellants in the same case, including Luka Mwangi Wahinya, a former Kiambu County Chief Officer for Transport, and businessman Charles Chege Mbuthia, a director of Testimony Enterprises Limited.

The court indicated that the matters relating to the three appellants would be mentioned together on April 14, 2026, given that their appeals arise from the same trial and have been consolidated.

During the session, Justice Okwany delivered two separate rulings touching on the appeals of Mbuthia and Wahinya.

In Mbuthia’s case, the court allowed an application seeking leave to introduce additional evidence in the appeal.

Mbuthia had requested the court to admit an audit report titled “Report of Findings on the Upgrading of Various Gravel Roads to Bituminous Surface in Kiambu County Contracts.”

According to the defence, the report raises questions about the prosecution’s narrative that the contractor fraudulently acquired public funds.

“The applicant contends that the contractor was owed Sh113.6 million by the Kiambu County Government and that the prosecution’s narrative of fraudulent acquisition is inconsistent with the financial findings contained in the said report,” Justice Okwany stated.

The judge noted that the report directly addresses the charges that formed the basis of Mbuthia’s conviction and could influence the court’s determination of the appeal.

However, the prosecution opposed the application.

Through state counsel Faith Miller, the Director of Public Prosecutions argued that the application was res judicata (already determined) and that the court had already ruled on a similar request earlier.

The prosecution also contended that the audit report could not qualify as new evidence because it had allegedly been served in a related civil matter on February 6, 2020.

Despite the objections, Justice Okwany allowed the application, holding that the interests of justice favoured admitting the additional evidence.

“The audit report concerns the same financial transactions, and in my view, it is useful in the determination of the appeal. Without consideration of the report, the court risks an incomplete evaluation of the evidence,” the judge ruled.

She further observed that the potential prejudice to the appellant if the evidence was excluded was greater than the prejudice to the prosecution if it was admitted.

Okwany also found that the report was prepared during investigations and existed at the time of the trial, but its disclosure during the criminal proceedings had not been demonstrated.

The judge emphasised that Article 50(2)(j) of the Constitution guarantees an accused person the right to disclosure of all relevant material, including evidence that may be favourable to the defence.

As a result, the court dismissed the prosecution’s preliminary objection and granted Mbuthia leave to adduce the audit report as part of the appeal record.

The prosecution was given 30 days to file any response or rebuttal evidence, including calling the author of the report for cross-examination if necessary.

In a separate ruling, the court also allowed an application by Wahinya seeking to be released on bail pending appeal.

Wahinya had asked the court to review orders issued on March 4, 2025, which had denied him bail.

In his application, Wahinya told the court that his wife had been diagnosed with multiple myeloma, a serious form of cancer, and required urgent medical treatment, including a bone marrow transplant in India.

He argued that as the head of the family, his presence was necessary to provide emotional, moral, and financial support during the treatment process.

The Director of Public Prosecutions did not oppose the request, stating that it was conceding to the application in the interest of fairness.

Justice Okwany found that the appellant had demonstrated a material change in circumstances and established exceptional grounds to warrant review of the earlier decision.

The judge ruled that Wahinya be released on Sh5 million cash bail or in the alternative, provide two sureties with property worth Sh10 million each, subject to verification by the Deputy Registrar.

He was also ordered to deposit his passport in court unless granted permission to travel.

The court further directed that the consolidated appeals be listed for hearing on a priority basis.

The matter resumes on April 14, 2026.