The Director of Public Prosecutions (DPP) has opposed a latest bid by former Kiambu Governor Ferdinand Waititu to soften his bail terms ahead of a ruling by the High Court on Wednesday.
Mr Waititu remains incarcerated at Kamiti Prison after prosecutors dismissed his request for a review of his bail terms as unmerited. The court will decide whether to relax bail conditions imposed following his February 2025 conviction to a Sh53.5 million fine or a 12-year jail term for corruption-related offenses.
“We are objecting solely because the applicant has not satisfied the conditions warranting review of the bail terms,” state prosecutors said on Monday.
They argued that the court’s July 2025 order requiring Waititu to deposit a Sh53.5 million bank guarantee for his release, pending appeal was reasonable. Prosecutors further contended that his repeated applications lacked substantive grounds.
According to them, Waititu’s motion “merely shifts prayers without meeting legal thresholds.” They accused his defense of recycling arguments, stating, “this change does not necessarily meet the conditions for review.”
Waititu has been in jail for eight months since being granted bail in July last year under strict conditions. He is serving a 12-year sentence after failing to raise the Sh53.5 million fine imposed upon his conviction by a Magistrate's court.
The case stemmed from a fraudulent Sh588 million road construction tender awarded to Testimony Enterprises, with the court finding that Waititu received Sh20 million in kickbacks.
Despite his conviction, the High Court granted him bail on July 31, 2025, citing health concerns and the need for external medical treatment. Notably, the court imposed a Sh53.5 million bank guarantee—a condition initially proposed by Waititu’s defense team.
Months later, Waititu filed a certificate of urgency on January 21, 2026, seeking to replace the bank guarantee with a Sh20 million cash deposit. His lawyers invoked the legal doctrines of impossibility and frustration, arguing that Waititu had exhausted all reasonable efforts to secure the guarantee.
"Unattainable condition"
“Despite all reasonable efforts, the applicant has been unable to secure a bank guarantee,” the lawyers told the court. They revealed that the defense had flagged the issue as early as December 18, 2025, and was instructed to file a formal application.
They warned that enforcing an unattainable condition would render the bail order meaningless. “It is quite clear that the applicant will not be able to secure the said bank guarantee,” stated the advocates.
The motion asks the court to set aside the guarantee requirement and instead accept a Sh20 million cash deposit or another reasonable amount. Waititu’s legal team argued that bail conditions should not be oppressive, especially since appeals can overturn convictions.
Prosecutors, however, countered that the application disregarded previous rulings and amounted to rewarding delay tactics. In an earlier decision rejecting a reduction request, the court noted that Waititu himself had proposed the bank guarantee and should have understood its implications.
“The applicant himself made an offer for a bank guarantee and must have known what it would entail to procure the same,” the court ruled previously. “He cannot now turn around and say that he has not been able to meet the terms.”
The DPP further emphasised that convicts do not enjoy a presumption of innocence and must meet stringent bail conditions. “This is a court of law, not mercy,” prosecutors asserted, urging the judge to prevent tactics that could further delay the appeal process.
After hearing the fresh submissions, the court reserved its decision, scheduling the ruling for February 18, 2026, at noon.
The judgment will determine whether changed circumstances justify easing Waititu’s bail terms or if the original conditions should remain unchanged.
