Former Cabinet Secretary (CS) Raphael Tuju has filed a fresh petition in the High Court, seeking to block the auction of his prime properties in Karen, Nairobi over a defaulted loan from the East African Development Bank (EADB).
In the petition to the Constitutional and Human Rights Division of the High Court, Mr Tuju and his company Dari Ltd, alongside his children are accusing five judges of the Supreme Court of infringing on his rights, after recusing themselves from the hearing of his appeal.
The judges who recused themselves are Deputy Chief Justice Philomena Mwilu, as well as Justices Mohammed Khadar Ibrahim, Smokin Wanjala, Njoki Ndung’u, and William Ouko.
Other than seeking to stop the EADB from selling, sub-dividing, or alienating the two high-end properties in the Karen suburb, Mr Tuju wants the court to find that the design of the Constitution does not envisage the recusal of judges if it will lead to a frustration of the required quorum.
He is apprehensive that following the recusal of five judges of the apex court, the latest the Supreme Court can be constituted to hear his appeal would be in 2036.
“That in the alternative, pending the hearing and determination of this application, this honourable court be pleased to issue an order directing that status quo in respect of the properties known as LR No. 11320/3 and LR No. 1055/165 be maintained."
Garam Investments Auctioneers had put up for sale the land where Entim Sidai Wellness Sanctuary stands and Tamarind Karen and Dari Business Park, both in Karen- sits to recover a debt of $35,057,622 (about Sh4.5 billion).
Later, the auctioneer indicated that one of the properties had been sold to an undisclosed buyer for Sh450 million.
Mr Tuju argues that the recusal and subsequent directions issued by the judges of the apex court means that the appeal can only be heard after 12 years, when an entirely new bench is in place.
“The same is an affront to the petitioners’ rights as guaranteed under articles 48 and 50 of the constitution and it defeats the principles of judicial authority as provided for under article 159(2)(d) of the constitution,” he said.
He said he complained to the Judicial Service Commission (JSC) on April 30, 2024, about the Supreme Court judges, raising concerns regarding the manner in which the judges were dealing with the matter.
Mr Tuju later filed an application asking the judges to suspend the matter, pending determination of the complaint before JSC but instead, the judges recused themselves from the hearing of the matter.
He said the Supreme Court cannot decline to hear and determine an appeal that it has certified as proper to be heard by it.
According to the former CS, the recusal raises serious questions as to whether the judges of the Supreme Court can exercise their discretion to reduce their quorum below what is set out under Articles 163(2) of the Constitution and the Supreme Court.
Mr Tuju said the right to a fair hearing is non-derogable, and the decision of the apex court is unconstitutional.
“It is thus just and equitable that this application be certified as urgent and the orders sought to be granted in order to strike a blow for the twin principles of constitutionalism and the rule of law in our country,” he said.
He also wants the court to certify the case as raising substantial questions of law and be referred to Chief Justice Martha Koome for appointment of a bench to hear the case.
Mr Tuju borrowed the loan in 2015 with plans to use the money to build a 30-room home that he would then sell to retirees and use the proceeds to repay the loan.
He said the EADB failed to disburse the entire sum of Sh933 million and further failed to approve the additional Sh294 million, a move that frustrated the deal.
