The former Kiambu County governor Ferdinand Waititu has faulted the trial magistrate court that found him guilty of four counts in a graft case and sentenced him to pay a fine of Ksh53.5 million or, in default, serve 12 years’ imprisonment.

Through his submissions in his appeal case at the Nairobi Anti-Corruption and Economic Crimes Division, Waititu argues that the sentence awarded to him was unlawful, unreasonably harsh, excessive and beyond the statutory provisions.

The former county chief now wants the High Court to review his sentence issued by the lower court based on the fact that it overlooked pertinent legal provisions, the principles of sentencing and the detriment suffered by an accused following a sentence.

Further, through his lawyer Chris Mutuku, Waititu avers that the sentence imposed on him by the subordinate court is illegal, noting that when imposing a fine, the court should specify a term of imprisonment to be served in default of payment.

Lawyer Mutuku reveals that the imprisonment in default of payment of any fine of Ksh50,000 or above must not exceed 12 months and that the imprisonment which is imposed in default of payment of a fine shall terminate whenever the fine is paid.

“The sentence imposed upon the 1st appellant (Waititu) is illegal and offends the mandatory provisions of section 58 of the Judiciary Criminal Procedure Bench Book and section 28 of the Penal Code Cap 63 Laws of Kenya,” part of the submissions reads.

 Grossly unfair

According to the submissions, the former county boss argues that the trial was grossly unfair, for it lacked timely disclosure of material evidence, refused to summon crucial witnesses and relied on incredible witnesses, which vitiated the guilty verdict.

“The 1st appellant (Waititu) submits that the prosecution deliberately refused to disclose material evidence despite a stern warning by the trial magistrate to honour pretrial disclosure. This non-disclosure affected his overall defence and misinformed the guilty verdict by the trial court,” part of the submission reads.

He also states that the Kiambu County Government did not lose any funds through corruption and the court had no jurisdiction to review a procurement process where the PPRA and PPAB had not made decisions.

“It is important to point out that the basis of the charges was based on an untruthful allegation that the county government of Kiambu County lost a sum of Ksh 147,274,055.40 based on a fraudulent tender contract amounting to Ksh 588,198,328.20,” Waititu states in his submissions.

“The EACC conducted an audit for the roads project, and the report dated September 25, 2019, by Engineer George Muriithi Muthuuri, PE, MIEK, of the Ministry of Transport, Infrastructure, Public Works, Housing & Urban Development reveals that the project was partially performed and all payments related to works were done. Kiambu County did not lose any funds in the roads project,” part of the submission reads.

Waititu cites that the prosecution failed to prove their case to the required standard of beyond reasonable doubt and that the evidence that was tendered failed to find that the legal threshold of proof was not established.

Lawyer Mutuku urges the High Court to resist any temptation to misconstrue its function as a holy responsibility to rid society of vermin and the caution by God in Leviticus 19:15.

“You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbour.” Lawyer Mutuku adds in his submissions.