Former Kiambu Governor Ferdinand Ndung’u Waititu, popularly known as Babayao, was granted revised bail terms requiring him to pay Sh20 million cash or provide two sureties with properties worth at least Sh30 million each.
This was after the Milimani Anti-Corruption Court set aside a Sh53.5 million bank guarantee condition that had kept him in custody for over seven months.
In a ruling delivered on Wednesday, Lady Justice Wilfrida Okwany ordered that the condition requiring a bank guarantee of Sh53.5 million imposed on July 31, 2025 be set aside and replaced with the new terms.
Waititu will also be required to deposit his passport with the court, with liberty to apply should he need it for travel.
The court found that it had jurisdiction to review its prior order, ruling that despite being granted bail pending appeal seven months ago, Waititu’s continued incarceration at Kamiti Maximum Prison demonstrated a material change of circumstances warranting judicial intervention.
“The applicant has remained in custody despite being granted bail pending appeal seven months ago. His continued incarceration demonstrates his inability to comply with bond terms, which to my mind amounts to a new material consideration,” Justice Okwany ruled.
The judge ruled that while the doctrine of functus officio generally prevents courts from revisiting final decisions, it does not bar dealing with “incidental or collateral matters” such as review of enforcement mechanisms.
“I accordingly find that the court has jurisdiction,” the judge ruled.
The court further held that while the Director of Public Prosecutions opposed the application, its affidavit conceded it did not oppose bail pending appeal “subject to reasonable and adequate security” a position the court said reinforced its jurisdiction to review the terms.
“If compliance is objectively unattainable despite reasonable efforts, insistence upon such compliance may render the court order granting bail illusory. The primary purpose of bail is to ensure that an accused person attends court rather than to punish the accused,” said Okwany.
“The court agrees the bail terms must not be so onerous as to defeat the constitutional objective of preserving liberty pending appeal.”
Waititu was sentenced to 12 years imprisonment or ordered to pay a Sh53.7 million fine in february 2025 after being convicted of corruption-related offences arising from a Sh588 million road construction tender awarded to Testimony Enterprises.
The trial court found that Waititu received Sh20 million in kickbacks.
He was granted bail on July 31, 2025, to enable specialised medical treatment outside prison due to ill health, but the Sh53.5 million bank guarantee requirement proved impossible to meet despite repeated efforts, according to his lawyer Christopher Ndolo Mutuku.
The prosecution, through state prosecutor Mwamburi, had opposed the application, arguing that Waititu’s repeated applications lacked sufficient merit.
“This change does not necessarily meet the conditions for review, but it appears the applicant keeps moving from one prayer to another without enough substance,” Mwamburi submitted.
Regarding the property offered as security, which was valued at Sh55 million, the court declined to make a determination on its suitability ruling that “the deputy registrar retains authority to verify ownership, valuation, and propriety of any proposed security.”
“The court retains the discretion to impose appropriate and enforceable alternative security conditions as it is not bound by the proposals made by the applicant,” Justice Okwany ruled.
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