Former Kiambu Governor Ferdinand Waititu wants the High Court to allow his release from prison on bond terms pending the determination of his appeal against a 12-year jail term imposed by the lower court.
In his application, Mr Waititu cites his health condition, alleged errors in the magistrate's judgment, family responsibilities, and strength of the intended appeal as the basis for his admission to bail.
He was convicted and sentenced to serve 12 years in prison or pay a fine of Sh53.5 million for receiving Sh25.6 million kickbacks from a road contractor who had been awarded a Sh588 million tender by the county government.
According to him, the verdict of the trial magistrate was erroneous since the evidence adduced by the State "failed to prove beyond reasonable double that he committed the crime".
He adds that he was convicted based on contradicting testimonies of prosecution witnesses and that the trial court erred by convicting him based on flow charts for the movement of money.
He wants the High Court to quash and set aside the 212-page judgment delivered by Chief Magistrate Thomas Nzyoki.
"Mr Waititu being dissatisfied with the judgment and sentence wishes to file an appeal which he believes has overwhelming chances of success. He is apprehensive given the time it will take to hear and determine the appeal and the nature of the sentence, if successful, the appeal will be rendered nugatory and he stands to suffer great prejudice and injustice because he will have served part of the sentence if not the entire sentence," says his lawyer Danstan Omari in the court papers.
The lawyer wants the application certified as urgent. He says Mr Waititu does not pose a threat to any witnesses as the matter is now at the appellate stage.
Faulting the lower court's judgment, the lawyer argues the trial magistrate failed to take into account Mr Waititu's evidence and did not weigh it against that of the prosecution in making a just conclusion.
On personal health, Mr Waititu has disclosed to court in an affidavit that he is suffering from "a combination of violent high blood pressure and diabetes, which are medical conditions that require me to take special care and constant medical attention as they are conditions that can only be managed but not cured".
He adds that he is the sole breadwinner of his family and therefore being in custody pending the hearing and determination of the appeal will leave his family destitute and their livelihood will be greatly compromised.
During the trial, he told the court that he was a businessman engaged in land speculation. He was out on bond security of Sh30 million during the trial and wants the High Court to admit the same bond to secure his freedom.
He says the bond security deposited at the lower court is now valued at Sh50 Million, which is commensurate to the fine imposed on him.
Stating that his intended appeal has higher chances of success, Mr Waititu faults Mr Nzyoki for shifting the legal burden of proof from the prosecution to him.
He adds that the prosecution failed to establish the nexus between him and a company known as Lake Naivasha Resort Ltd, which received Sh6 million from road contractor Testimony Enterprises Ltd to be used as part of payment for the acquisition of Delta Hotel.
"I also contend that the prosecution was not able to show a direct nexus between myself and Lake Naivasha Resort but instead developed a theory to directly implicate me," he argues in the application.
