- Former CS Raphael Tuju and his three children are challenging Supreme Court Judge Isaac Lenaola’s application to have CJ Martha Koome appoint a special bench
- The Tuju legal team argued that CJ Koome would be conflicted in forming the bench since she’s also a petitioner in the case
- Lawyers contend the Chief Justice’s role in this matter blurs the line between the judicial office and the office-bearer, creating a perceived conflict
- The legal battle originates from a commercial case involving Tuju’s company and EADB, with questions raised about Justice Lenaola’s involvement
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Didacus Malowa, a journalist at TUKO.co.ke, brings over three years of experience covering politics and current affairs in Kenya.
Nairobi – Former CS Raphael Tuju, his three children and companies have opposed an application by Justice Isaac Lenaola.
The Supreme Court judge wants Chief Justice Martha Koome to empanel a bench of judges to hear a petition opposing the removal of Supreme Court judges.
Tuju, his children Mano, Alma, and Yma, along with his companies, Dari Limited and S.A. M, urged Justice Lawrence Mugambi to reject an application by Supreme Court Judge Isaac Lenaola.
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Lenaola had requested that the case be referred to Chief Justice Martha Koome to appoint an uneven number of judges to hear the case.
Through lawyers Gregory Ndege, Duncan Okatch and Paul Nyamodi, Tuju told Justice Mugambi that if the application by Justice Lenaola is allowed, their right to fair administrative actions will be affected.
“The 1st petitioner’s duty as enshrined in Article 165 (4) is an administrative function and thus she is already conflicted as a petitioner and her empaneling will not be fair, by dint of Article 47 of the Constitution and the Fair Administrative Action Act CAP 7 L which section 4 reads as below”, he argued
Why is it unfair for CJ Koome to form a bench
Ndege, who is acting for SAM Limited, further told the court that if the Chief Justice is allowed to form a bench there is no distinction between an office bearer and the office at this Juncture since she seems conflicted.
“This petition’s body is covered and clothed with the issue of tenure of office, of a person or Office bearer. The office and office bearer are to be distinguished, the petitioner may not be in a suitable position to empanel a bench,” he added.
The ouster petition stems from a commercial dispute between Tuju’s company and the East African Development Bank over a KSh4.5 billion loan, which was handled by a five-judge bench.
Some parties have questioned the removal of Justice Lenaola, as he was not part of the bench that ruled on the case.
Petitions seeking Supreme Court judges’ removal
Other petitions at the JSC seek the removal of all seven Supreme Court judges, alleging misconduct.
Lawyers representing the CJ and other judges have pushed for the case to be referred to the CJ for an expanded bench.
Justice Lenaola’s application argues that the case involves significant legal issues and should be heard by an uneven number of judges, at least three, appointed by the CJ.
The petition seeks to clarify the constitutionality of the ouster motion and whether the judges can seek redress.
The case, which stems from the Supreme Court’s decision to ban lawyer Ahmednasir Abdullahi, will be further addressed on April 25, 2025.
Represented by lawyer George Oraro, the judges argued that the petition raised significant legal questions, and an expanded bench would allow for a quicker resolution.
They further stated that the empanelment of judges is an administrative matter. If concerns about the Chief Justice, a party in the case, empaneling the bench were valid, then any judge selected by the JSC would be deemed compromised, despite each judge exercising judicial independence.
Abdullahi opposed the application, warning that allowing it would cause a legal scandal.
Additional reporting by Zipporah Weru, TUKO correspondent.
Source: TUKO.co.ke
