By Andrew Kariuki
The Director of Public Prosecutions (DPP) has opposed an application by former Kiambu Governor Ferdinand Ndung’u Waititu seeking a review of his bail terms, telling the court that the conditions set earlier are reasonable and should remain unchanged.
Waititu, who has been in custody at Kamiti Maximum Prison for more than seven months, is asking the High Court to replace the requirement for a Ksh53.5 million bank guarantee with a cash bail of Ksh20 million, arguing that he has been unable to meet the initial condition despite sustained efforts.
The application was heard before Justice Wilfrida Okwany at the Milimani Anti-Corruption Court, where state prosecutor Mwamburi informed the court that the prosecution had formally opposed the request.
“My lady, we oppose the application on the ground that the applicant has not satisfied the threshold required for review of the orders issued on March 3, 2025,” the prosecutor submitted.
The prosecution further argued that the application does not introduce new circumstances to justify altering the bail terms, adding that the repeated requests for review lack sufficient legal basis.
“This does not meet the conditions for review. It appears the applicant is shifting from one prayer to another without sufficient grounds,” Mwamburi told the court.
Waititu was convicted in February 2025 on corruption-related charges linked to a Ksh588 million road tender awarded to Testimony Enterprises.
The trial court found that the former governor benefited from unlawful payments amounting to Ksh20 million.
He was subsequently sentenced to 12 years in prison or, in the alternative, to pay a fine of Ksh53,749,000.
Following his conviction, he was granted bail pending appeal on July 31, 2025, to allow him to seek specialised medical treatment outside prison.
The court, however, imposed strict conditions, including the provision of a bank guarantee equivalent to Ksh53.5 million.
Through his lawyer Christopher Ndolo Mutuku, Waititu has now moved the court under a certificate of urgency seeking to vary those terms.
The defence argues that obtaining a bank guarantee of that magnitude has proved impossible despite reasonable efforts, and that maintaining the condition defeats the purpose of granting bail.
Mutuku told the court that the issue had previously been raised, and that on December 18, 2025, the court directed that a formal application be filed to seek a variation of the bail terms.
He relied on the legal doctrine of impossibility and frustration, submitting that the applicant cannot be held to a condition that cannot realistically be fulfilled.
“Despite all reasonable efforts, the applicant has been unable to secure the bank guarantee, and more than six months have elapsed since the order was issued,” Mutuku told the court.
The defence further argued that the continued enforcement of the existing terms effectively renders the bail order illusory, since the applicant remains in custody solely due to his inability to meet the condition.
“It is clear the applicant will not be able to secure the guarantee, and the order of the court will be rendered in vain,” counsel submitted.
In the application, Waititu asks the court to set aside the requirement for a bank guarantee and instead allow his release upon depositing a cash bail of Sh20 million, or any other amount the court may consider appropriate.
The defence also maintains that bail terms should not be excessive or unattainable, particularly in cases where an appeal is pending and the conviction may ultimately be overturned.
Justice Okwany is expected to deliver a ruling on the application on February 18, 2026 at 12 p.m.
