NAIROBI, Kenya — The Supreme Court has lifted the recusal of four judges who had been barred from handling a Sh4.5 billion dispute involving former Cabinet Secretary Raphael Tuju, his family, Dari Limited and the East African Development Bank (EADB).
The decision clears the way for the judges to resume hearing an appeal that has been stalled for nearly two years.
The judges had recused themselves in 2024 after Tuju and other applicants lodged a complaint with the Judicial Service Commission (JSC) alleging bias and claiming the bench was determined to reach a predetermined outcome.
Supreme Court Reviews 2024 Recusal Decision
On Friday, the Supreme Court allowed an application by Dari Limited, Raphael Tuju, members of his family and S.A.M Company Limited seeking review of an earlier decision delivered on October 11, 2024.
That decision had resulted in the recusal of the bench handling the dispute.
The five-judge bench that had recused itself comprised Deputy Chief Justice Philomena Mwilu and Justices Smokin Wanjala, Njoki Ndung’u, William Ouko and the late Mohammed Ibrahim.
The latest ruling allows the four surviving judges to resume handling the appeal.
Complaint to JSC Triggered Recusal
The recusal followed a complaint lodged by the applicants with the JSC, in which they alleged bias by the judges.
The applicants also raised allegations concerning David Odongo, a former EADB employee whom they accused of providing false affidavits and witness statements that allegedly misled the courts.
The allegations formed part of the applicants’ argument in seeking a review of the circumstances that had led to the judges’ recusal.
EADB opposed the application, arguing that the applicants had failed to meet the legal threshold required for the Supreme Court to review its earlier decision.
Court Says Circumstances Have Changed
In the latest ruling, the Supreme Court made clear that it was not declaring its October 2024 decision erroneous.
Instead, the judges found that circumstances surrounding the recusal had materially changed since the earlier decision.
A key development was the withdrawal of the complaint that had been lodged with the JSC.
The court therefore concluded that the changed circumstances provided a basis for reviewing the earlier decision and lifting the recusal.
Supreme Court Cautions Litigants
The court cautioned litigants against making serious complaints against judges, while also affirming that individuals have a constitutional right to lodge bona fide complaints with the JSC.
The judges noted that the complaint in this case had been withdrawn without an explanation, retraction or expression of regret.
The court’s comments underscore the distinction between the right to raise a genuine complaint about judicial conduct and the consequences of making serious allegations against judicial officers.
Four Judges Return to Case
The ruling means Deputy Chief Justice Philomena Mwilu and Justices Smokin Wanjala, Njoki Ndung’u and William Ouko can now resume handling the appeal.
The case had remained stalled for almost two years following the 2024 recusal.
The Supreme Court’s latest decision therefore removes the procedural obstacle that had prevented the four judges from continuing with the matter.
Sh4.5B Dispute Can Now Proceed
The dispute involves Dari Limited, Tuju and his family, S.A.M Company Limited and EADB and centres on claims involving approximately Sh4.5 billion.
With the recusal orders lifted, the appeal can now proceed before the Supreme Court bench.
