Five Supreme Court judges, including Deputy Chief Justice Philomena Mwilu, Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, and William Ouko, have recused themselves from the hearing of a high-profile case involving former Cabinet Secretary Raphael Tuju.
Tuju’s case stems from a disagreement with the East African Development Bank (EADB) regarding his disputed loan.
He accuses the lender of providing $9.1 million ( Ksh. 1.1 billion) for the acquisition of property but the balance, which was meant for the development of high-end residential units for sale, was never disbursed. He said the sales of the units would have offset the loan.
The balance of Ksh294 million was to be disbursed for the second phase, involving the construction of high-end residential villas for sale which he argues meant the bank sabotaged the project.
The loans were for the construction of Ksh100 million two-storey, flat-roofed bungalows sitting on a 20-acre forested land dubbed Entim Sidai and the purchase of a 94-year-old bungalow built by a Scottish missionary, Dr Albert Patterson, which currently operates as a high-end restaurant.
The bungalow currently operates as a high-end restaurant in Karen.
EADB is seeking to take over rent proceeds from the property in a bid to recover the loan, a move Tuju termed “misconceived” and “not aligned with our constitutional policy”.
Raphael Tuju Accuses Judges of Denying Him Rights to Fair Hearing & Access to Justice
Raphael Tuju in his applications accused the Court of handling the applications in a manner that led them to believe that the Court was working towards a “pre-determined outcome”.
He claimed that the Court has dealt with applications filed before it and issued case management directions in a manner that disregards the appellants/applicants’ rights to fair hearing and access to justice.
“It is the appellants/applicants’ further case that the five Judges have conducted themselves in a manner that is impartial and departs from the basic expectations of a court of law; that the Court has fallen short of its mandate under the Constitution; that the said Judges’ conduct falls short of the required standard of conduct under the Judicial Service (Code of Conduct and Ethics) Regulations 2020, and the Judicial Service Act; and that the impugned actions and omissions necessitated the filing of the complaint against the five Judges to the JSC,” reads part of the ruling.
“In their submissions dated 16th May 2024, the appellants/applicants reiterate their grounds in support of the application. In addition, they argue that they have completely lost faith in the Court’s administration of justice and would ideally call for the recusal of the said Judges.”
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Supreme Court Judges Recuses Themselves from the Case
The five-judge bench, in its response, stated that it is undeniable that, by resorting to this course of action, the applicants are unequivocally accusing the bench of lacking impartiality, fairness, and integrity.
They mentioned that such accusations against a judge go to the very core of his/her oath of office and must strongly persuade the judge to recuse him/herself from further participation in the proceedings.
“Having arrived at the inescapable conclusion that we are being accused of bias and working towards an undisclosed predetermined outcome, we are strongly persuaded that our further participation in these proceedings would not serve the ends of justice, at least in the eyes and perception of the appellants/applicants,” the Supreme Court Judges said.
“Consequently, and inevitably, each of us on this Bench does hereby recuse him/herself from further participation in the hearing and determination of the appeal dated 25th April 2023 and filed on 26th April 2023.”
In taking this decision, the judges emphasized that they were keenly aware of its consequences on the appeal before them, given the constitutional provisions as to quorum of Supreme Court.
“Indeed, such a decision is one that ought only to be taken very sparingly on a case-by-case basis, and in the most compelling circumstances. However, in the face of the accusations of impropriety and bias, levelled against an entire Bench of the Court, even the doctrine of necessity cannot be available to the appellant/applicants,” the Supreme Court Judges added.
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