Former Cabinet Secretary Raphael Tuju has suffered yet another blow after the Supreme Court dismissed his application to provide additional evidence to support his fight to block the seizure of a Sh3.5 billion Karen property by a regional lender.
A Bench of five judges of the top court presided by Deputy Chief Justice Philomena Mwilu rejected Tuju’s application to adduce additional evidence, saying it was an afterthought with the objective of filling up gaps in his case.
Through senior counsel Paul Muite, Mr Tuju said the additional evidence was struck out last month by the court and it was in response to a slanted narrative on the history of the engagements between the parties, as given by East African Development Bank’s official.
“It is apparent that in filing the present application, the petitioners (Tuju) seek to re-introduce the contents of the said affidavits that were otherwise struck out. This in our view is akin to ingeniously seeking to discreetly review our ruling,” the court said.
The rejection of the application comes a few weeks after Mr Tuju’s attempt to block two receiver managers appointed by the regional bank was rejected by the Supreme Court.
The apex court on October 26 dismissed Mr Tuju’s application saying EADB is a reputable lender that can compensate him should his appeal be successful.
“We are satisfied that the respondent remains a reputable international bank that should have no difficulty compensating the applicants if the applicants succeeded in their claim,” the Supreme Court said.
The regional lender appointed Mr George Weru and Mr Muniu Thoithi of consultancy firm PricewaterhouseCoopers (PwC) in 2019, as receiver managers for the 20-acre property and the high-end hotel, Dari, which is currently under the management of Tamarind.
In the latest application, Mr Tuju told the court that his rejoinder, which was filed in June was struck out because they were not filed procedurally.
Mr Muite submitted that the purpose of the striking out was, therefore, to ensure compliance with procedural rules and was not intended to be punitive.
He said in the alternative, the court should strike out a response contained in an affidavit filed by the bank official, “to affirm the constitutional right to fair hearing”.
The bank opposed the application saying the application seeks to prematurely address the merits of the bank’s response and defence outside of the scope of the petition proceedings.
In the appeal, Mr Tuju has questioned the recognition and enforcement of foreign judgments in Kenya and whether such recognition renders the Kenyan law subservient to English law.
