NAIROBI, Kenya, Feb 18 – The High Court has dropped the requirement that former Kiambu Governor Ferdinand Waititu furnish a Sh53.5 million bank guarantee as a condition for bail pending appeal, replacing it with a cash bail of Sh20 million.
Alternatively, the court allowed Waititu to present two sureties backed by property worth Sh30 million each.
In a ruling delivered at the Milimani Anti-Corruption and Economic Crimes Division on Wednesday, Justice Wilfrida Okwany varied an earlier order issued on July 31, 2025, which had admitted Waititu to bail on condition that he secure a bank guarantee equivalent to the entire fine imposed by the trial court.
The court found that the condition had proved impractical, observing that Waititu had remained in custody for more than seven months despite securing bail pending appeal.
“Bail pending appeal [is] meant to be real and effective. This means that a condition that proves practically unattainable may defeat its purpose,” Justice Okwany stated in the ruling.
Waititu, who was convicted and sentenced in Anti-Corruption Case No. 22 of 2019, had applied for review of the bail terms, arguing that despite reasonable efforts, he had been unable to secure the Sh53.5 million bank guarantee.
In addressing the issue of jurisdiction, the court rejected arguments that it was functus officio, holding that it retained authority to review its own bail orders.
The judge noted that “it [is] settled that bail terms may [be] reviewed upon an application” and that the court was therefore not functus officio in matters relating to bail pending appeal.
On the question of changed circumstances, the court held that Waititu’s continued incarceration after securing bail constituted a material consideration.
“The Appellant’s continued incarceration for over seven months demonstrates his inability to comply with the bond terms, which, to my mind, amounts to a new material consideration,” the judge ruled.
While acknowledging that bail conditions are not contractual obligations, the court applied the broader legal principle that the law does not compel performance of an impossible obligation, stating that insistence on objectively unattainable compliance could render a bail order illusory.
“In this case, I find that while bail conditions are not contracts, the broader principle that the law does not compel performance of an impossible obligation is persuasive,” the judge ruled.
In allowing the application, Justice Okwany ordered that the earlier bank guarantee condition be “varied and/or set aside” and replaced with new terms under which Waititu shall execute a cash bail of Sh20 million or, in the alternative, provide two sureties with property security worth Sh30 million each, subject to strict verification by the Deputy Registrar.
The court further directed Waititu to deposit his passport with the court and seek prior approval should he wish to travel.
