A judge has declined to suspend orders blocking former Kiambu Governor Ferdinand Waititu from collecting rental income from two of his properties, including a hotel, which were frozen last year over suspicion that they are proceeds of corruption.
High Court judge Nixon Sifuna on Wednesday, July 24, ruled that the freeze order should remain in force until the case is concluded.
The judge, however, directed the hearing of the case be speeded up stating that forfeiture proceedings are delicate and punitive and freeze orders should not be prolonged.
“In the circumstances of this case, I hold that the interim injunctive orders hitherto subsisting shall continue subsisting until this suit has been determined. In essence, the application fails and is disallowed,” Justice Sifuna said.
In the application, Bienvenue Delta Hotel and Bins Management Services Ltd argued that they were separate entities with their own legal personality, separate from their directors and shareholders.
In an affidavit, Mr Waititu said the order granted by the High Court last year effectively diverted the income but it was allegedly used to service a Sh200 million loan that was used to acquire the property.
"The appointment of the receiver to manage the applicant's affairs effectively reduces the applicant's income since the provisions of section 56A (8) provide that the costs of the receiver shall be deducted from the applicant's proceeds," he said in the application.
Mr Waititu further said the income may dwindle because the receiver may not have the zeal and necessary expertise to undertake business development and marketing and the hotel may not be able to meet monthly loan payments, pay wages and may soon cease to be a going concern to the detriment of the shareholders.
The Ethics and Anti-Corruption Commission (EACC) opposed the application, arguing that the assets had been acquired through corrupt conduct and were subject to forfeiture.
Through lawyer Jacky Kigogy, the EACC said the assets should remain frozen until the case is concluded or Mr Waititu proves they were not acquired through corruption.
In the ruling, Justice Sifuna said any variation or discharge of court orders should be made in the most exceptional, extraordinary and overly deserving circumstances only.
The judge noted that when court orders are issued on the basis of suspicion only, the subsistence of the orders should not be prolonged because there is no finding of wrongdoing yet.
Former Kiambu County Governor Ferdinand Waititu.
Photo credit: Wifred Nyangaresi | Nation
Mr Waititu was last year blocked from selling or transferring 18 parcels of land and several vehicles suspected to have been acquired through corruption.
The former governor and his wife, Susan Wangari were also barred from transferring the parcels of land in Nairobi, Kiambu and Kitengela, pending the determination of the case filed by the anti-graft agency.
Apart from the sale of the properties, the couple were also barred from collecting rent from Bienvenue Delta Hotel and proceeds from Bins Management Services Ltd.
The anti-graft agency said Mr Waititu and his spouse acquired the property between 2015 and 2020 when he was the MP for Kabete Constituency and later Kiambu Governor.
“While serving as the Governor of Kiambu Country, tenders were awarded to contractors who subsequently transferred proceeds of the fraudulent procurement contracts to him, his wife, and their companies as kick-backs,” the EACC said.
It is alleged that Mr Waititu exploited his position for private gain by involving himself in transactions, which conflicted with the public interest and amassing wealth that was disproportionate to his known legitimate sources of income.
