Suspended Governor Ferdinand Waititu yesterday moved to the Court of Appeal to contest a decision to bar him from accessing the county offices.
Mr Waititu, through lawyer Tom Ojienda, argues that the High Court erred by finding that he should be out of office until a graft case filed against him is determined.
Mr Ojienda says orders requiring Waititu not to step foot in the county’s offices amount to removal from office. He further asserts that the charges his client is facing are not among the reasons cited for removal of a governor from office.
Twin principles
Last month, Justice Ngenye Macharia ruled that elected leaders facing graft-related charges should not continue to hold office.
“The learned judge gravely misdirected herself in law and fact in conflating and misinterpreting the meaning of office, suspension, removal and vacancy.
“She also erred in law and fact in failing to appreciate the significance of the constitutionally protected twin principles of our democratic process, namely separation of powers and due process, which are embedded in the removal process of a governor,” Waititu’s appeal papers read in part.
Milimani Magistrate Lawrence Mugambi drew first blood when he ordered that the governor should not access his office.
A defiant Waititu declared he would continue to conduct business out of the office because the magistrate had allegedly ordered he should not step in the physical building.
The embattled governor then moved to the High Court seeking, among other things, access to his office and the reduction of a Sh15 million cash bail.
The severity of the matter only sunk in when Justice Ngenye ruled it would be “immoral and untenable for the governor to continue performing his duties while facing trial for the serious crime of stealing from the people he was elected to serve”.
Justice Ngenye stated that there would be no vacuum in Waititu’s absence at the helm of Kiambu County since the Constitution and the County Governments Act provide operational mechanisms when a governor is away.
Morally ill
The judge cited interference as among the reasons Waititu ought to remain in the cold until the court determines his fate.
“He is being considered morally ill because of the alleged offenses, which is similar to a governor who is sick and away from office. It has happened in other counties; when a governor is ill, his deputy takes charge, assisted by the county executive officers.”
But in his appeal, Waititu says Justice Ngenye, while making her ruling, factored in extraneous factors that had not been proven.
“The learned judge gravely erred in law and fact in failing to appreciate the impact of the order of the trial court barring the appellant from accessing his office by placing unfounded, unproven and an unproportionately high credence to inter alia the alleged apprehension of interference with potential witnesses.
“It is proposed to ask the court for orders that the appellant be allowed to access his office and discharge his constitutional duties without hindrance as the sitting Governor of Kiambu County Government,” the court papers read.
Waititu is also challenging the amount of money he had to part with to secure his freedom. He claims that a Sh15 million cash bail or Sh30 million bond is too much for an offence involving Sh51 million.
The governor wants the appellate court to reduce the cash bail to Sh2 million or grant bond of Sh5 million.
Waititu, his wife Susan Wangari Ndun’gu, Kiambu’s chief officer for roads and transport Luka Mwangi Waihinya, six county employees, a businessman and his wife were charged with various counts of conflict of interest, dealing with suspect property, money laundering and abuse of office.
They have denied the charges.
