Five Supreme Court Judges have bowed out of an appeal filed by Former Cabinet Secretary Raphael Tuju over a long-running dispute he has had with a regional bank for defaulting on a Sh4.5 billion loan.
The bench led by Deputy Chief Justice Philomena Mwilu said they could not continue to participate in the case after Tuju accused them of being biased.
"We are strongly persuaded that our further participation in these proceedings would not serve the ends of justice, at least in the eyes and perception of the applicants," said the bench.
Tuju and five others sought to suspend the proceedings pending at the Apex court as he awaited the outcome of a complaint he had filed at the JSC against the bench.
He accused Mwilu, Justices Mohamed Ibrahim, Smokin' Wanjala, Njoki Ndung'u and William Ouko of lack of integrity, impropriety and misconduct.
He alleged that they were working towards a pre-determined outcome regarding the case before them.
"Such an accusation against a Judge goes to the very core of his or her oath of office. Such allegations must strongly persuade the judge to refuse himself from further participating in the proceedings," said the bench In disqualifying themselves.
The bench said the judgement issued by the Court of Appeal on April 20 2023 shall remain in force until it is either affirmed or reversed 'by a competent bench of this court'.
The court of appeal on the said date dismissed Tuju's bid to block the enforcement of a Judgement by a UK court in 2019.
This decision cleared the way for the East African Development Bank to recover a $9.3 million loaned to Tuju in July 2015 which has since ballooned to over Sh4.5 billion.
At stake were prime properties Dari and Entim Sidai Wellness centre.
Tuju has made numerous attempts to stop the sale of the properties through auction but has failed.
Just recently, auctioneers put up for sale Entim Sidai over the defaulted loan.
This particular property is set to go under the hammer on October 29.
The sale will commence at 11am at Garam Investments offices in Westlands.
"Under instructions received from the chargee's advocates, we shall by public auction the prime hotel Entim Sidai- which sits in 20.2 acres," read the advertisement placed on the local dailies by the auctioneers.
In the case, the regional bank initially filed the case before a London Court seeking to compel Dari Ltd to offset a Sh1.5 billion loan.
The loan was meant for the construction of a flat-roofed bungalow which currently operates as a high-end restaurant.
The court subsequently allowed the regional bank to recover the money from Tuju’s real estate company.
Tuju being aggrieved with the decision filed cases at the Milimani Commercial Court and the Court of Appeal which he lost.
He then appealed to the Supreme Court which has now disqualified itself from hearing the matter.
Tuju had questioned the recognition and enforcement of foreign judgements in Kenya and whether such recognition renders Kenyan Law insubordinate to English Law.