Kiambu Governor Ferdinand Waititu and his wife Susan Wangari on Monday July 29th 2019 denied charges in a Sh588 million illegal road tender case.
They appeared before magistrate Lawrence Mugambi alongside nine other suspects at a Milimani law court. The Sh588 million tender was for upgrading of gravel roads to bituminous service. It was irregularly awarded to Testimony Enterprises Limited at a cost of Sh588 million.
EACC boss Twalib Mbarak said after submitting an investigation report to Haji, he gave consent to charge Waititu alongside 11 other suspects with conflict of interest, dealing with suspect property, abuse of office and willful failure to comply with the law relating to procurement.
Tom Ojienda, Nelson Havi, Collins Kiprono, Kipchumba Karori, Edwin Chege and James Njoroge form Waititu’s defence team.
Ojienda said the road in question is 60 per cent complete.
He added that no reference in the charges states that any money has been lost during the process of the tender.
“The charges are about the procurement process. No allegation relates to nondelivery of a tender that’s been awarded,” he said.
The ODPP objected to his line of submission and asked that he refrain from going into giving evidence at this stage.
He said they have not been served with any affidavit to show the accused do not deserve bail.
All the accused persons surrendered themselves once they learned about the charges,” Ojienda said.
“Baba yao (Waititu) can be traced. He can’t flee. His a top political player. The rest are civil servants of Kiambu county who earn Sh125,000. They have no financial muscle to escape anywhere.”
“They will only rotate around Kiambu County”.
Ojienda said they were simply executing the oath of office while sitting as memebers of the tender committee.
Ojienda requested the magistrate not to violate the provisions of Article 149 or provisions of Section 62 (6) of the EACC Act when imposing bail.
He said Waititu should not be limited from visiting his office or executing his responsibilities as governor.
He cited a conflicting decisions pronounced by Judge Mumbi Ngugi which limited governor’s mentioned in criminal cases from accessing their offices. The judge made the decision following an appeal by Samburu Governor Moses Lenolkulal to overturn a decision to bar him from his office after he was charged.
Ojienda cited a conflicting decision by Justice Hedwig Ong’undi in which she allowed former NLC chairman Mohammad Swazuri to access his office even after being charged.
Ojienda urged the court not to impose a condition that will interfere with the exercise and duty and functions of Kiambu as the governor.
“This court can’t turn itself into an electorate and end Waititu’s terms prematurely because he is facing fraud charges. This court should not be used as an instrument to create a wedge on the rights people have conferred,” he said.
Ojienda said the functions of a deputy governor are limited by the Constitution itself and County Government Act.
He said the deputy only acts upon delegation so that any action limiting the function of office of governor will necessarily interfere with the people of Kiambu.
He also said there are functions the deputy can’t perform unless delegated by the governor and that’s why it’s been delegated.
Ojienda requested that Waititu be released on a bond of Sh4 million and Sh2 million bail.
He also requested Wangari be released on Sh500,000 bail or a bond of Sh1 million.
Andrew Muteti, who was representing the ODPP, said he was not opposed to granting of bail, but wanted adequate terms to be imposed against the accused.
In Waititu’s case, Muteti urged court to order he surrenders all his travel documents to court.
He also wanted Waititu to be ordered to deposit suitable sureties.
“And if in any event court is persuaded to grant bail, it’s our prayer you consider the amount of money involved,” Muteti said.
He also requested that Waititu not be allowed to access his offices from Monday.