Supreme Court rejects Tuju's new evidence in Sh1.9b EADB loan suit

The Supreme Court has dismissed former minister Raphael Tuju’s application to file new evidence from a senior East Africa Development Bank manager to support his case.

Supreme Court Judges Philomena Mwilu (Deputy Chief Justice), Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, and William Ouko on Friday agreed that Tuju could not explain how the new information would add value to his appeal in the Sh1.9 billion loan dispute.

Tuju, his company Dari Ltd, his children Mano, Alma and Yma Tuju, and SAM Company Limited filed the new application claiming that new information from EADB official Barnabas Ochieng would show that the demands and subsequent bid to place Dari under receivership was illegal.

However, the five-judge bench slammed the brakes on the politician.

“In our view, it is apparent that the petitioners, dissatisfied with our ruling dated 7th November 2023 declining to strike out the respondent’s replying affidavit sworn by Justa Kiragu, now seek, rather ingeniously, a second bite of the cherry through this application as the further witness statement that they seek to introduce is intended to counter the averments made in Justa Kiragu’s affidavit,” the bench headed by Judge Mwilu ruled.

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In his application, Tuju told the court that he was summoned by the Directorate of Criminal Investigations (DCI) over the loan saga.

DCI also summoned Justa Ruguru, Barnabas Ochieng and Isaac Nyongesa who allegedly appeared on behalf of the regional bank.

He stated that upon request, DCI supplied him with the statements and after analysis, Tuju discovered that Ochieng had allegedly given a differing narration to the police to what he told the court.

“Replying affidavit dated November 17, 2023, filed on behalf of the plaintiff herein (EADB) contains factual statements that are not only dissimilar to the ones made in his replying affidavit made before this honourable court, but are also totally at odds and contradictory to the averments made in the aforementioned replying affidavit,” said Tuju.

Tuju further claimed that Ochieng had recanted his statement in support of the bank’s case against him.

According to the former minister, the EADB’s official statement before the DCI corroborates his argument that the lender failed to honour its end of the bargain.

He said the deal was that the bank would finance the two projects and would recoup its money after the acquisition of the Tree Lane property.

In the application, Tuju said that Ochieng admitted development of the real estate was a key component of the project to enable Dari Limited to repay the loan.

Tuju alleged that Ochieng also told the police in most cases, he would visit the bank’s lawyers and would find an affidavit already prepared for him to sign.

On the other hand, EADB argued that Tuju was revisiting issues that happened before the contract. According to the regional lender, the case before the Supreme Court revolved the United Kingdom’s judgment in its favour.

At the heart of the case is whether a United Kingdom judgment in favour of EADB can be recognised and enforced in Kenya.

Tuju is fighting to block receiver managers from his Dari Coffee Garden and Restaurant (which took the loan) while also shaking off a bankruptcy suit brought against him and his three children.

EADB is demanding Sh1.9 billion – including the principal amount and accrued interest - from Tuju and his three children, who are also directors at Dari. The four also personally guaranteed the loan. The case will be mentioned on Monday next week.