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The Supreme Court has dealt former Jubilee Secretary General Raphael Tuju a major blow after an entire Bench withdrew from a case challenging the enforcement of a Sh1.9 billion loan judgement.
Tuju had filed a case challenging the June 19, 2019 UK court declaration that he pays the East Africa Development Bank the Sh1.9 billion loan.
The former Cabinet Minister had sought to have the hearing suspended until such a time the commission determines his complaint. He argued that five judges had conducted themselves in a manner that was impartial and departed from the basic expectations of a court of law.
But EADB urged the court to dismiss the application. The lender assered that Tuju had continued to defy court orders relating to the dispute.
Judges Philomena Mwilu (Deputy Chief Justice), Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, and William Ouko ruled that they could not sit to hear the case because Tuju, his company Dari Ltd, his children Mano, Alma and Yma Tuju, had filed petitions to remove them from office.
According to them, it would be improper to hear a case where they are being accused of bias and impropriety.
They ruled that the judgment by Court of Appeal judges Kathurima M’inoti, Imaana Laibuta and Mwaniki Gachoka will carry the day until such a time a bench of that court will either set it aside or intervene.
However, the judges who sat in the case are five, leaving Chief Justice Martha Koome and Justice Isaac Lenaola, meaning the apex court has no quorum to hear the case.
They observed that despite the decision now making it impossible for Tuju to battle the regional lender before that court because of quorum, the accusations against them only led them to one conclusion, down their pens.
According to them, the application by the former politician, his children and company to suspend hearing of the case until the petition before the Judicial Service Commission is resolved is unheard of in the country.
“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 or applicants."
They further found that accusing them of lack of impartiality, fairness, and integrity goes to the heart of their oath of office and the only fair thing was to recuse themselves.
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