• Tuju had moved to court seeking conservatory orders staying execution of an April 20 judgment pending the hearing and determination of the appeal.
• He submitted that there was danger of eviction from Dari properties which EADB holds as security over some Sh2.2 billion he owed the bank.
Image: FILE
The Supreme Court has dismissed an application by former Cabinet Secretary Raphael Tuju to stop the taking over of his property in Karen over unpaid dues.
In a judgment delivered on Friday, the Court led by Deputy Chief Justice Philomena Mwilu and justices Njoki Ndungu, Mohammed Ibrahim, Smokin Wanjala and William Ouko said the East African Development Bank, which is listed as the respondent, was capable of compensating Tuju if need be.
Tuju had moved to court seeking conservatory orders staying execution of an April 20 judgment pending the hearing and determination of the appeal.
He submitted that there was danger of eviction from Dari properties which EADB holds as security over some Sh2.2 billion he owed the bank.
The former CS added that he was apprehensive that if the takeover is allowed to proceed and the appeal succeeds, the bank's immunity may prevent him from recovering the money.
Tuju moved to the court alongside Dari Limited, S.A.M company limited and the Tujus including family members Mano, Alma and Yma.
The aforementioned were loan guarantors and co-directors of Dari.
"We are satisfied that the respondent (EADB) remains a reputable international bank that should have no difficulty compensating the applicants if the applicants succeeded in their claim," the judges said.
"The applicants’ apprehension as to the diplomatic immunity afforded to the respondent does not suffice," the court held.
The apex court further said it could not be made to make a determination on the bank's immunity, as the issue is not on appeal before it.
Tuju had also sought orders to stay proceedings before the High Court on enforcement of the notice of appointment of receivers and managers dated December 23, 2019.
The notice saw George Weru and Muniu Thoithi appointed as Receiver Managers of Dari Limited.
Under the same prayer, Tuju also sought to stay any enforcement proceedings emanating from the Facility Agreement of April 10, 2015.
The apex court, however, found that there was no evidence provided to show that there existed any appeal on the issues before the Court of Appeal.
This meant that the proceedings before the High Court were beyond the Supreme Court's remit.
"It is our finding that since the proceedings the applicants seek to be stayed are not in the purview of this Court, it would only be right to afford the trial court the opportunity to render its decisions and if necessary, the dissatisfied party to follow the appellate hierarchy," the judges said.
The loan deal between EABD and Dari, from which the dispute arose from, was inked in the UK on April 10, 2015.
When the dispute began, the bank moved to a UK court and obtained orders that the Tujus and Dari jointly pay the bank USD15,162,320 (Sh2,256,153,216) under the 2015 agreement.
In Nairobi, the bank got orders paving the way for recognition of the judgment from UK in Kenya.
Tuju, however, countered and got orders staying the execution with the condition of depositing Sh50 million to an account in the joint names of the parties' advocates as security.
The Court of appeal, however, dismissed the application.
When the application was moved to the Supreme Court at first, it issued an ex-parte stay orders halting the enforcement proceedings by the bank.
After hearing from both EADB and Tuju, the apex court allowed execution of the aforementioned decision, effectively allowing the bank to enforce the foreign judgment.