NAIROBI, Kenya, Feb 18 – The High Court’s decision to drop the Sh53.5 million bank guarantee imposed on former Kiambu Governor Ferdinand Ndung’u Waititu Babayao was driven by one core finding: a bail condition that cannot be met defeats the very purpose of bail pending appeal.
When Waititu was granted bail on July 31, 2025, the court required him to furnish a bank guarantee equivalent to the full fine imposed by the trial court.
However, seven months later, he remained in custody, unable to meet that condition.
In reviewing the terms, Justice Wilfrida Okwany made it clear that bail conditions should not be illusory.
“Bail pending appeal is meant to be real and effective. This means that a condition that proves practically unattainable may defeat its purpose,” the judge ruled.
1. The court found a “new material consideration”
One of the key legal thresholds in reviewing bail terms is the presence of changed circumstances or new material factors.
The court held that Waititu’s continued incarceration for over seven months after being granted bail demonstrated his inability to comply with the bank guarantee requirement.
That prolonged detention itself became the “new material consideration” justifying review.
In other words, the passage of time — coupled with non-compliance — became legally significant.
2. The court was not functus officio
The prosecution had argued that there were no new circumstances and that the earlier bail terms should stand.
However, the court ruled that it retained jurisdiction to review its own bail orders and was not functus officio in matters relating to bail pending appeal. This meant the judge had authority to revisit and vary the conditions without reopening the appeal itself.
3. The principle of “impossibility”
Although bail conditions are not contractual agreements, the court drew from broader legal principles, including the doctrine that the law does not compel performance of an impossible obligation.
The judge reasoned that insisting on objectively unattainable compliance would undermine the purpose of bail — which is to secure attendance, not to punish.
4. Bail is about attendance, not penalty
The ruling reaffirmed a longstanding judicial principle: bail is meant to ensure court attendance, not to serve as a pre-emptive punishment.
By lowering the threshold to Sh20 million cash bail or two sureties of Sh30 million each, subject to verification, the court balanced the need to secure attendance with the right to liberty pending appeal.
What this means
The decision does not overturn Waititu’s conviction or sentence. It strictly concerns the terms of his release while his appeal is pending.
However, the ruling may have broader implications for how courts structure bail conditions in high-value corruption cases, particularly where financial guarantees mirror the total fine imposed.
