Ferdinand Waititu has Covid-19, lawyer tells court

The criminal trial of former Kiambu Governor Ferdinand Waititu in a Sh510 million graft case failed to kick off on Monday following his failure to appear at the Milimani Anti-Corruption Court in Nairobi.

Lawyer John Swaka told the court that Mr Waititu, who is out on a Sh30 million bond, contracted Covid-19 and has been unwell since last week, so he could not turn up for the hearing.

The lawyer asked for an adjournment of the case, a request that Deputy Director of Public Prosecution Nicholas Mutuku did not oppose.

Mr Mutuku said he was ready to proceed and had lined up four witnesses to testify against the former governor, who is charged alongside his wife Susan Wangari and six others.

Ms Wangari and the other accused persons were present in court and were also ready to proceed but said they were not opposed to the adjournment application.

Senior Principal Magistrate Thomas Nzioki allowed the adjournment saying the application had merit.

He directed the lawyer to provide medical documents on October 21, when the case will be mentioned.

“The DPP will do background checks to verify the information,” the magistrate said, noting the need for him to be keen.

Witnesses

The accused answered to the charges in July last year but the trial is yet to start.

Officers from the Ethics and Anti-Corruption Commission were also in court armed with a carton box labeled ‘Kiambu County Government bids’, packed with documents and spring files.

The magistrate said the hearing will take place for eight days, from October 26 to November 5, so as to expedite determination of the matter that formed the basis of Mr Waititu’s impeachment early this year.

The prosecution has lined up 68 witnesses including county staff and anti-corruption investigators.

In February, Mr Waititu lost his bid to block two crucial prosecution witnesses from testifying against him.

He had asked the court to block former Finance Chief Officer Faith Njeri Harrison and former Director of Supply Chain Management Justus Bundi Kinoti from testifying in the graft case.

He claimed the two carried out key financial transactions that saw him arrested and charged in court and that their testimonies would therefore be skewed. He also cited their senior, influential positions.

The law

But the court ruled that the promotion of law cannot be attained when the court shuts out evidence without a hearing.

The magistrate said public interest in the punishment of crime justifies the legal requirement that a competent witness be compellable.

“A witness is not bestowed with the privilege to choose whether or not to cooperate in giving information to the investigations of crime,” said magistrate Nzioki.

He added that the DPP’s’ prosecutorial powers are intertwined with the duty to identify and call witnesses, and that section 125 of the Evidence Act defines the competency of a witness.

The law says one is exempt from testifying only if of a tender age, extreme old age, suffering a mental illness or any other cause which can hinder recollection of relevant facts, the understanding of questions, the giving of rational answers or knowledge of the duty to tell the truth.

“Whether a person is competent to give evidence is a question of fact and for the court to decide during the trial,” the court noted.

The governor is accused of conflict of interest, engaging in fraud, dealing with suspect property, money laundering and abuse of office.