Kiambu Governor Waititu has moved to the High Court seeking a review of his bail terms, and the effect of barring him from accessing his office.
Mr Waititu and his co-accused have also sought a review of their bond terms, arguing that they are excessive.
While granting them bail, chief magistrate Lawrence Mugambi directed Mr Waititu, Mr Zacharia Njenga Mbugua and Ms Joyce Ngina Musyoka to post Sh15 million in court each, to secure their release or bond of Sh30 million.
Mrs Waititu, Susan Wangari Ndung’u was directed to deposit Sh4 million, while the rest of the accused persons were granted cash bail of Sh1 million each.
None of the accused persons managed to secure their freedom by Tuesday evening, even though some had deposited the money.
But through lawyer Tom Ojienda, the accused persons argue that the bond terms and conditions placed by Mr Mugambi are excessive and amount to a “constructive denial of bail without compelling reasons”.
Prof Ojienda argues in the court documents that the directive barring Mr Waititu from accessing the Kiambu County offices, effectively removes him as a governor in violation of section 62(6) of the Anti-Corruption and Economic Crimes Act and Section 33 if the County Governments Act, 2012.
Section 62(1) of the ACECA provides that a public or state officer who is charged with corruption or economic crime shall be suspended at half pay until the conclusion of the case, so long as the case is concluded within two years.
However, Section 62(6) of ACECA says that the above section does not apply to an office if the constitution limits or provides for the grounds upon which the holder may be removed or circumstances in which the office must be vacated.
Article 181(2), 182(d) and Section 33 of the County Governments Act, 2012 provides the process in which a governor may be removed from office.
In the petition, Prof Ojienda wants the court to determine whether the bail terms are excessive, harsh and unjustifiable and should be reviewed downwards. He also wants the court to determine the effect of barring Mr Waititu from accessing his office.
Last week, Justice Mumbi Ngugi barred Samburu governor Moses Lenolkulal from accessing his office stating that Section 62(6) ACECE, in her view, violates the constitution.
The Judge said apart from obfuscating, the said section helps obliterate the “political hygiene” and is contrary to the provisions of the constitutional requirement of integrity in governance and against the national values as well as principles of leadership and integrity.
She reasoned that a county governor, to whom Article 10 and Chapter Six of the Constitution apply, is charged with abuse of office, which is basically enriching himself at the expense of the people.
“Would it serve the public interest for him to go back to office and preside over the finances of the county that he has been charged with embezzling?” the judge posed.