A judge has withdrawn, for the second time, from a case in which a bank is seeking to recover Sh1.6 billion from a firm owned by Jubilee Secretary General Raphael Tuju.
In the matter, East Africa Development Bank (EADB) wants Dari Limited placed under receivership to recover the disputed debt.
Commercial Court Judge Grace Nzioka said although neither EABD nor Tuju had requested her to withdraw, she would not continue with the case.
Justice Nzioka ordered that the file be placed before Justice Mary Kasango next week. When the judge withdrew the first time, she had also referred the file to Kasango.
On June 2, Nzioka had given reasons why she was handing over the case. This followed contention over a finding that Dari directors had disobeyed court orders that allowed EADB receivers to take over running of the firm.
“I don’t believe it will be in the interest of justice that this matter should revert to this court ... and, finally, to uphold the integrity of the court, the entire institution and the entire Judiciary, I find that it will be in the interest of substantive justice that the matter can be heard before any other court,” she ruled.
Tuju’s lawyers, Paul Muite and Paul Nyamodi, had previously asked the judge to withdraw from the case after accusing her to tilting the scales of justice in favour of EADB.
The lawyers claimed that she had failed to address an application to commit EADB’s directors and its receivers, Muniu Thoithi and George Waweru, to civil jail for allegedly harassing, interfering with, and disrupting Dari’s business.
“By filing the application, we are exercising the right to access justice and have the dispute determined by a fair and impartial judge. It is not in any way an attempt to delay the hearing of this matter, but exercise of the right to a fair trial,” Tuju’s lawyers argued.
While opposing the plea, EADB lawyer Fred Ojiambo said allegations against the judge were unfounded. He stated that Tuju’s lawyers were employing delaying tactic to ensure that the bank’s receivers did not take over Dari.
The bank, he added, wanted Tuju punished for defying court orders. “The first respondent has been prevented from accessing assets charged to it as security for debt owed to the applicants through impunity and continuous disregard of court orders,” argued Ojiambo.
He continued: “The application for recusal is an abuse of the process and an attempt by the applicants to bully and intimidate the court and shop for a judge of their own choice.”
Nzioka, however, had ordered that the case be placed before Kasango, saying that her court had been treated with little respect.
On March 23, Kasango ordered that Dari directors should allow Thoithi and Waweru to take over the hotel and provide the receivers with its statements of affairs, financial returns, company records and cashbooks from December 23, last year.
She also ordered that Tuju and his children - Yma Tuju, Alma Tuju and Mano Tuju - should explain why they should not be committed to civil jail for disobeying court orders that had paved way for the receivers to access the firm.
But the family members complained that the judge had issued the orders without giving them an opportunity to give their side of the story, and requested for a review of the orders.
EADB opposed the application, arguing that the four had been given an opportunity to explain why they should not be jailed and that the access orders had been reiterated by Nzioka. On June 11, Kasango set aside her orders and sent the file back to Nzioka.
“I come to an inescapable conclusion that the plaintiffs were denied a right to be heard on whether they should present the receiver with full access of the first plaintiff’s (Dari) premises, whether they would present the receiver with full statement of affairs of the first plaintiff, and whether a notice to show cause should be issued against the second to the fifth plaintiff,” ruled Kasango before ordering that they should appear before Nzioka yesterday.