The High Court has dismissed a petition seeking to indict five Supreme Court judges over an alleged breach of the Constitution, for refusing to hear a case involving the auction of former Cabinet Secretary Raphael Tuju in a Sh4.5 billion bank loan.
Justice Lawrence Mugambi struck out the petition filed by Mr Tuju, citing lack of jurisdiction to inquire into the issues raised against the apex court judges.
Mr Tuju together with his children and trading company Dari Limited moved to the Constitutional and Human Rights Division of the High Court after the five judges recused themselves from the case following allegations of bias.
The bench comprised Deputy Chief Justice Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, and William Ouko.
Their recusal paved the way for the East African Development Bank (EADB) to auction Mr Tuju’s assets in Karen, Nairobi.
The petitioners wanted the High Court to declare that the design of the Constitution does not envisage the recusal of judges if it will lead to a frustration of the required quorum.
He wanted the court to find that the judges infringed on the petitioners' Constitutional rights. The court heard that the recusal affected the quorum of the Supreme Court bench and amounted to a violation of his rights guaranteed by the Constitution.
Mr Tuju argued that the recusal frustrated his case against the bank because the remaining two judges of the apex court –Chief Justice Martha Koome and Isaac Lenaola- could not take over the case for lack of quorum.
He was apprehensive that following the recusal of five judges, the latest the Supreme Court could be reconstituted to hear his appeal would be in 2036.
The former Rarienda MP sought the High Court’s intervention after Garam Investments Auctioneers put up for sale the land where Entim Sidai Wellness Sanctuary stands and Tamarind Karen and Dari Business Park, both in Karen- sits to recover a debt of $35,057,622 (about Sh4.5 billion).
However, Justice Mugambi upheld the objection raised by the judges questioning the jurisdiction of the court to hear and determine the petition and to examine the decision of the Supreme Court.
The judge said even if the High Court has expansive jurisdiction in enforcement of the Bill of Rights, the exercise must be done cautiously.
“The court may sympathize with the petitioner but it cannot correct a jurisdiction wrong. The preliminary objections are upheld and the petition is struck out,” said the judge.
In the objections, the respondents contended that the High Court lacks the jurisdiction to exercise supervisory power over the Supreme Court or to intervene in the conduct of the proceedings.
Justice Mugambi was informed that the Supreme Court was immune from the supervisory powers of and intervention by the High Court. In the recusal ruling dated October 11, 2024, the Supreme Judges disqualified themselves after Mr Tuju accused them of impropriety, bias, and working towards an undisclosed predetermined outcome.
“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 appellants/applicants. Consequently, and inevitably, each of us on this bench does hereby recuse him/herself from further participation in the hearing and determination of the appeal,” said the bench.
Aware that their decision had impacted the case due to lack of quorum, the judges said though such a decision was one that ought only to be taken very sparingly it had to happen in Mr Tuju’s case.
“In the face of the accusations of impropriety and bias, levelled against an entire bench of the court, even the doctrine of necessity cannot be available to the appellant/applicants,” they said.
Mr Tuju also wanted the Apex Court to halt the hearing of his appeal pending the outcome of a complaint he had filed at the Judicial Service Commission (JSC) seeking the removal of the Supreme Court judges over alleged misconduct.
In their complaint before the JSC, Mr Tuju and his co-petitioners accused the five judges of impropriety and misconduct. They allege that the court was working towards a predetermined outcome.
“What would become of the administration of justice in the Country, if courts of law, leave alone the Supreme Court, were to be required to stay proceedings before them, pending the determination by the JSC of complaints filed against Magistrates and Judges?” asked the judges in the ruling.
