EADB, AG Oduor accuse Tuju of abusing court process in new submissions

The East Africa Development Bank has urged Justice Patricia Nyaundi to dismiss Former Rarieda Member of Parliament Raphael Tuju, based on sections of its regulations which were declared unconstitutional by the Machakos Court.

In its reply to Tuju’s case before the Constitutional Court, the regional bank argued that Tuju subjected himself to the same regulations, and only found fault when he had lost in a string of cases which were determined by different courts.

At the same time, the lender said that the new move was a collateral attack of judgments in its favour, despite the same being a settled issue.

“The petition is incompetent, fatally and incurably defective on account of material non - disclosure of the previous court matters and decisions before the English and Kenyan Courts,” argued EADB’s principal legal officer Carol Luwaga.

At the same time, she said that the bank was erroneously sued before a constitutional court despite enjoying immunity from such cases. According to her, there was no indication that the bank had waived its rights before being sued.

Luwaga, in her reply filed by Mohamed Muigai LLP, asserted that Tuju had not honoured his end of bargain despite a finding that he owed the bank.

On the other hand, Attorney General Dorcas Oduor backed EADB’s argument for dismissal, arguing that the case was yet another move to beat court judgments.

“Thus, this petition is a last-ditch attempt to manoeuvre the Court’s jurisdiction in a manner incompatible with the principle of the rule of law, sanctity of contractual engagements, and the imperative of justice dispensation, hence an abuse of the Court process,” the AG, through Deputy Chief State Counsel Samwel Kaumba argued.

She asserted that the finding by the Machakos Court that section 2 (1) and (2) of the EADB Act did not impact the bank’s lending power.

In his fresh case, filed before the Constitutional Court in Nairobi, Tuju now claims that the law that establishes the regional bank was declared unconstitutional last year, and the government has failed to change or amend it.

Therefore, his lawyer Gregory Ndege now argues that it cannot pursue anyone in Kenya, as its powers were anchored on two sections of law that were declared unconstitutional in a case filed by Paul Lihanda Nusu against the National Assembly and Senate in Machakos.

“It is the petitioners' case that the respondent's authority to advance credit, to hold and enforce security, and to enforce any judgment or obligation against persons and property within Kenya is wholly derived from and dependent upon Section 2(1) and (2) of the EADB Act which provisions which have been declared unconstitutional and are now void ab initio,” argued Ndege.

He said that on March 20, 2025, Justice Francis Rayola Olel declared Section 2(1) and (2) of the EADB Act to be unconstitutional for allowing the Treasury Cabinet Secretary to commit taxpayers’ money to the bank without Parliament’s oversight.

At the same time, the lawyer further said that the judge also found that the amendments to the EADB Act, done in the Finance Bill 2013, were illegal for lack of public participation.

However, he stated that the court gave Parliament until March 20, 2026 to regularize the Act, something which it allegedly did not do.

Ndege asserted that it should not be treated as if the law never existed in the first place.

According to him, the net effect of the judgment is that the enforcement of the judgment against Tuju from the United Kingdom could not have taken effect in Kenya owing to the finding of the court. At the heart of the case is Sh1.9 billion.

Tuju’s company, Dari Limited, entered into an agreement with the bank on April 10, 2015, under which it agreed to give Dari a Sh943.9million ($9.3 million) loan. The loan was for the acquisition of a 22-acre forested land dubbed Entim Sidai in Karen and the purchase of a 94-year-old bungalow built by a Scottish missionary, Dr Albert Patterson, which operated a high-end restaurant and 14 rooms.

Part of the loan was meant to help in the construction of 12 luxury two-storey bungalow homes at Sh100 million each, worth Sh1.2 billion, sitting on part of the sprawling, serene land in Karen. It would have made him richer by Sh2.4 billion.