Kiambu Governor Ferdinand Waititu has been ordered to stay away from his office pending the determination of the KES588million (US$5.8M)graft case against him.
This is after Senior Principal Magistrate Lawrence Mugambi slapped him with a Sh30million bond with surety of similar amount or a cash bail of Sh15m to secure his release from custody.
Lawyer Tom Ojienda for the accused immediately indicated that he would file an appeal in the High Court contesting the decision to bar Waititu from his office.
“The first accused shall stay away from his office until this case is determined,” SPM Mugambi sitting in Nairobi’s Milimani Law Courts said.
The magistrate said the lower court was bound by the decision of High Court Justice Mumbi Ngugi last week where she ruled that the Samburu Governor Moses Kasain, who faces corruption charges, should stay away from his office for the duration of his trial.
Kasain has filed an appeal in the Court of Appeal.
In the ruling, Justice Ngugi found that Section 62(6) of the Anti-Corruption and Economic Crimes Act (ACECA) went against the spirit of the constitution of Kenya 2010 and violated the principle of Equality before the law.
Section 62 provides for public officers to step aside from their offices once charged with crimes pending the determination of their guilt or innocence.
However, sub-section 6 of the same provision seems to provide loop hole for “state officers” such as elected leaders and constitutional office holders to remain in office unless removed via laid out procedures for those offices.
SPM Mugambi said the law should apply equally to all and argued that a governor accused of graft cannot be expected to superitendent over the same county finances he is acccused of embezzling.
While the Defence will seek a revision of the magistrate’s orders, the accused will be back in court on the 26th of August for mention. This is to confirm compliance with all the pre-trial rules including exchange of bundles of documents between the legal teams such as witness statements and supporting affidavits.
The Mumbi Ngugi ACECA Ruling is likely to have far reaching consequences for other constitutional holders facing graft or criminal charges.
Already, more than 10 counties are under probe for allegations of misuse of public finances. These include Nairobi, Murang’a, Homa Bay, Migori, Machakos among others.
If charged, more county bosses will likely be asked to step aside to allow the determination of their cases.
Among those who could find themselves locked out of office as well include Governors Mike Sonko of Nairobi, Alfred Mutua of Machakos, Cyprin Awiti of Homa Bay, Okoth Obado of Migori, Mwangi Wa Iria of Murang’a amongst others.
In the meantime, the county deputy governors are by law supposed to take over in the interim and if they are not able to, then the county speaker takes over.
“When the county governor is absent, the deputy county governor shall act as the county governor,” Article 179 (5) of the constitution reads.