Why DPP is opposing Waitutu's bid to lower bail terms

The Director of Public Prosecutions (DPP) on Monday opposed a fresh bid by jailed former Kiambu Governor Ferdinand Waititu seeking to lower his Sh53 million cash bail.

Waititu, who has been behind bars at Kamiti Maximum Prison for more than seven months despite being granted bail in July last year, is requesting the court to substitute a Sh53.5 million bank guarantee requirement with a Sh20 million cash security deposit, citing the impossibility of meeting the original conditions. 

Appearing before Lady Justice Wilfrida Okwany at the Milimani Anti-Corruption Court, prosecutor Linda Mwamburi said that the DPP had filed an affidavit opposing the application, stating that the previous bond terms imposed on Waititu are reasonable.  

“My lady, we are objecting to the application solely on the ground that the applicant has not satisfied the conditions to warrant the review of the courts issued on March 3, 2025,” Mwamburi told the court.

The prosecutor further argued that Waititu’s continuous applications lacked sufficient merit to warrant judicial intervention.

“This change does not necessarily meet the conditions for review, but it seems that the applicant keeps moving from one prayer to another without enough substance, my lady,” Mwamburi added.

The former governor was sentenced to 12 years in prison or ordered to pay a Sh53,749,000 fine after being found guilty of corruption-related charges in February 2025.

The case involved a Sh588 million road construction tender awarded to Testimony Enterprises, with the court finding that Waititu received Sh20 million in kickbacks and that the tender was issued fraudulently and illegally.

Following his conviction by Milimani Anti-Corruption Court Chief Magistrate Thomas Nzyoki, Waititu was granted bail on July 31, 2025, specifically to enable him to seek better medical treatment outside prison due to ill health.

However, the bail came with stringent conditions, including the provision of a bank guarantee worth Sh53.5 million.

Through his lawyer Christopher Mutuku, Waititu filed a certificate of urgency on January 21, 2026, seeking to have the bail terms reviewed.

During his submission Mutuku cited the doctrine of impossibility and frustration, arguing that despite reasonable efforts, securing the bank guarantee has proved unattainable.

“In consideration of the applicant’s ill-health last year, this court admitted him to bail on July 31, 2025, in order to enable him seek better treatment out of prison,”Mutuku informed Justice Okwany

Mutuku emphasised that the court was made aware of the difficulty on December 18, 2025, when the judge directed Waititu to file a application for substitution of the bank guarantee with a cash bail.

“It is now more than 6 months since the issuance of the said order,” Mutuku stated.

Justice Okwany fixed the ruling on February 18, 2026 at 12 pm.

The lawyer further contended that continued enforcement of the impossible condition would render the court’s initial decision to grant bail meaningless.

“That it is quite clear that the applicant will not be able to secure the said bank guarantee and the order of the court will be in vain,” lawyer Mutuku told the court.

The application argues that while Waititu himself had initially proposed the Sh53.5 million bank guarantee as a bail condition, changed circumstances have made compliance impossible. It invokes the legal principle that individuals should not be held to impossible bargains.

“That the fact that the applicant has been unable to secure a bank guarantee for the past 6 months is prima facie evidence that he is incapable of doing so, and granted that the Court was sufficiently satisfied that he ought to be admitted to bail, it behooves this Court to lessen the conditions it set for his release on bail,” Mutuku says.

The application further contends that bail conditions should not be insurmountable, oppressive, or unattainable, particularly in light of the fact that the spirit behind bail pending appeal recognizes that a conviction may be overturned on appeal.

“That it is therefore necessary to plead with the court to review its terms on admission of the appellant (Waititu) to bail on the basis of new circumstances and the doctrine of impossibility/frustrations,” the lawyers stated.

In his notice of motion, Waititu requests the court to set aside the order requiring a Sh53.5 million bank guarantee and instead grant him release upon payment of a cash security deposit of Sh20 million.

“That the court does review and vary its order dated July 31, 2025, requiring the provision of a bank guarantee of Ksh53.5 million as a condition precedent to the release of the appellant (Waititu) on bail, and in place thereof, he be admitted to bail upon making a cash security deposit of Sh 20 million or such other sum as may be deemed appropriate by the court,” part of the notice of motion reads.