Former Kiambu Governor Ferdinand Waititu in court/ LEAH MUKANGAI

The High Court has dismissed a petition by former Kiambu Governor Ferdinand Waititu challenging the constitutionality of a law that bars people convicted of corruption or economic crimes from holding public office for 10 years.

In the petition, Waititu and other petitioners challenged Section 64 of the Anti-Corruption and Economic Crimes Act.

The provision, enacted to enforce Chapter Six of the Constitution, disqualifies a person convicted of corruption or an economic crime from being elected or appointed to public office for 10 years after conviction.

However, in a judgment delivered on Friday by Justice Roselyne Aburili on behalf of Justice Chacha Mwita, who has since been elevated to the Court of Appeal, the court found that the petitioners had failed to demonstrate why the provision should be declared unconstitutional.

“The petitioners did not demonstrate why the section is unlawful,” the judge observed.

Waititu, the second petitioner, joined others in challenging the legality of the sentences imposed on them following their convictions in the Sh588 million corruption case at Milimani in 2019.

The petition also challenged the alternative prison terms imposed alongside the fines, with the petitioners arguing that the sentences exceeded the limits prescribed under Section 28(2) of the Penal Code.

The case stems from a Sh588 million corruption conviction involving the irregular award of a tender to Testimony Enterprises Limited for the construction of roads in Kiambu County during Waititu’s tenure.

Waititu was fined Sh53.5 million or sentenced to 12 years in prison.

Former Kiambu roads chief officer Luka Mwangi Wahinya, the third petitioner, was fined Sh21 million or seven years in prison, while businessman Charles Chege Mbuthia, a director of Testimony Enterprises Limited, was fined Sh295 million or nine years in prison.

The petitioners argued that the alternative prison terms exceeded the statutory limits and resulted in unlawful imprisonment, raising constitutional concerns beyond their individual cases.

But Justice Mwita found that the petitioners had not demonstrated that Section 28(2) of the Penal Code applied to their circumstances, noting that they had been prosecuted and convicted under the Anti-Corruption and Economic Crimes Act.

Section 28(2) of the Penal Code limits the jail term for failure to pay a fine to a maximum of 12 months for fines exceeding Sh50,000, unless another law provides otherwise.

The judge further noted that appeals against the convictions and sentences had been filed at the time and were still pending, making the appellate court the appropriate forum to address the sentencing questions.

“The appellate court was well placed to address the issues, including whether Section 28(2) of the Penal Code was applicable but was overlooked during sentencing,” the judge stated.

“The jurisdiction of this court is not a substitute for the appellate jurisdiction,” he added.

The court also found that the petitioners had not established a specific constitutional violation attributable to the Director of Public Prosecutions (DPP), who was named as the respondent.

The judge noted that the petition had failed to demonstrate that the DPP was responsible for the alleged violations of the Constitution, the law or their fundamental rights and freedoms.

Their appeals against the convictions and sentences have since been dismissed as well in the anti-corruption court.