Supreme Court lifts recusal of four judges in Ksh.4.5B Tuju-EADB dispute

The Supreme Court has lifted recusal orders that had barred four of its judges from handling a Ksh.4.5 billion dispute involving former Cabinet Secretary Raphael Tuju, his family, Dari Limited and the East African Development Bank (EADB).

The four judges recused themselves in 2024 after Tuju and other applicants lodged a complaint with the Judicial Service Commission (JSC), alleging bias by the judges.

In its latest ruling, the Supreme Court found that the circumstances surrounding the recusal had since changed, clearing the way for the judges to resume handling the case. The decision effectively revives a legal battle that has been stalled for nearly two years.

On Friday, the Supreme Court allowed an application by Dari Limited, Raphael Tuju, his family and S.A.M Company Limited to review its earlier decision of October 11, 2024, a decision that had led to the recusal of the bench. 

The five-judge bench comprising Deputy Chief Justice Philomena Mwilu, Justices Smokin Wanjala, Njoki Ndung’u, William Ouko and the late Mohammed Ibrahim had recused themselves after the applicants complained to the JSC, alleging bias, claiming the judges were determined to reach a predetermined outcome.

The applicants had sought to rely on allegations involving former EADB employee David Odongo, whom they accused of making false affidavits and witness statements that allegedly misled courts.

EADB opposed the application, arguing that the applicants had failed to meet the legal threshold for reviewing the Supreme Court's decision.

In its latest ruling, the Supreme Court made clear that it was not declaring its earlier decision wrong, but rather that the circumstances surrounding the recusal had materially changed after the applicants withdrew their complaint.

The court further cautioned litigants against making serious complaints about judges, while affirming that every person has a constitutional right to lodge a bona fide complaint with the Judicial Service Commission.

The court, however, noted that the complaint in question had been withdrawn without any explanation, retraction or expression of regret.

The decision allows Deputy Chief Justice Philomena Mwilu and Justices Smokin Wanjala, Njoki Ndung’u and William Ouko to resume handling the appeal, which had stalled for nearly two years.