Court rules Tuju’s Dari Business Park already sold, cannot be reversed

The High Court on Thursday found that it cannot grant stay of execution orders for former Cabinet Secretary Raphael Tuju's Dari Business Park in Karen as the property has already been sold.

It has however granted the orders in respect to Tuju's Entim Sidai Wellness Sanctuary pending hearing and determination by the court of appeal filed within 60 days.

Tuju is required to deposit a sum of Ksh.50 million as security, within 30 days.

An application by Tuju to stay a ruling delivered on March 9 effectively clearing the path for the disposal of two of his properties in Karen over a contested Ksh.2 billion debt owed to the East African Development Bank (EADB), has partially succeeded.

High Court Judge Moses Otieno granted temporary stay of execution in respect to one of the properties, Entim Sidai Wellness Sanctuary in Karen.

The same however, does not apply to the second of the properties in dispute, Dari Business Park.

Justice Otieno found that stay orders cannot apply as the property has already been disposed of as security for the bank loan

"The evidence before this court however demonstrates that one of the properties, Tamarind, Karen and Dari Business Park was sold at a public auction, transferred to the 10th defendant (Ultra Eureka Limited) and possession taken. In respect of that property, the applicant's equity of redemption was extinguished upon the fall of the hammer," ruled the judge.

"The law is clear that once such a sale has taken place, the remedy available to an aggrieved chargor lies in damages pursuant to Section 99 of the Land Act. This position has been affirmed by the authorities such as Simon Njoroge where the court held that a completed sale cannot be undone through injunctive relief and any loss is compensable."

Tuju however has leave to appeal the ruling delivered on March 9 that struck out his amended plaint dated April 25, 2025.

Lady Justice Josephine Wayua Wambua Mongare in that ruling found that: "In summary, the Plaintiffs are essentially asking the court to re-hear an injunction already denied, re-open a debt already adjudicated internationally and recognized domestically and re-litigate the enforceability of security over properties already subject to multiple court orders."

"I find that the Bank's position and objection is well-founded that this application is a blatant abuse of court process, meant to frustrate its lawful recovery efforts after years of default and litigation. There is no way that the Plaintiff's Amended Plaint dated 25th April 2025 survives and the same is accordingly struck out."

In respect of Tuju's partially successful application of stay pending a challenge of this ruling in the Court of Appeal, Tuju is required to within 30 days deposit security in the sum of Ksh.50 million in an interest earning joint account in the names of counsel for the parties. Failure to which, the stay order shall automatically lapse.

The court held that the security serves, among other reasons, to ensure the right of appeal is not abused as a mechanism for delay.