Raphael Tuju asks court to allow fresh evidence in fight over Karen property

Former Cabinet Secretary Raphael Tuju has gone back to the Supreme Court seeking to be allowed to adduce new evidence in his fight with a regional lender.

In the application certified as urgent by the duty judge Monday, Mr Tuju says the evidence of a statement given by an official of the East African Development Bank (EADB) to the Directorate of Criminal Investigations (DCI) last year is crucial evidence in the appeal.

Mr Tuju was allowed by the Supreme Court last year to pursue a second appeal at the apex court over the long-running dispute with the regional bank over a loan borrowed by his company, Dari Limited, in April 2015.

“That this honourable court do grant orders allowing the petitioners to adduce, as additional evidence, a further witness statement recorded with the Directorate of Criminal Investigations (DCI) by one David Washington Barnabas Ochieng dated 21st December, 2023 and therefore making the same a part of this Honourable courts record for purposes of the hearing and determination of the petition of Appeal,” says Mr Tuju.

An order signed by Deputy Registrar of the Supreme Court Bernard Kasavuli directed Mr Tuju to serve the bank with the application alongside his submissions by today (January 30).

The bank will file its reply and submissions by February 1, while the case will be mentioned on February 2 to confirm whether the parties will have complied with the directions.

‘Completely at odds’

Mr Tuju said the evidence is directly relevant to the matter before the court as it is capable of impacting the decision. He said he could not have obtained the evidence before.

He further said the statement by Mr Ochieng is critical in establishing the truth of the petition as declining to look at the evidence leaves false and inaccurate claims by the bank on record, yet it has been disproved by an official of the bank.

He maintained that the statement supports his case on the nature of the loans as well as the history of the engagement between the parties.

He said Mr Ochieng affirmed that the project as envisaged in the agreement was two-phased in nature, which is the acquisition of the Tree Lane property as well as the construction and sale of the housing units, to repay the loan advanced to him.

The statement allegedly confirms that the project was viable, as it was sitting on a 20-acre parcel of land and Mr Tuju would have developed about 20 villas, rehabilitate the existing structures and that the development of the villas was the key component of the project, to enable Dari Limited to pay the loan.

He said the statement given to the DCI is ‘completely at odds’ with an affidavit sworn by Mr Justa Kiragu on May 12, 2023 in response to his appeal pending at the Supreme Court.

Mr Kiragu states in the affidavit that Mr Tuju did not complete the conditions precedent for the facility of Sh1.5 billion ($9.3 million) and that he (Tuju) unilaterally abandoned development of the Mwitu Road property, among other issues.

Mr Tuju said the claims are false and misleading as the loan agreement only envisaged the purchase of Tree Lane property.

He further said Mr Kiragu claims that the securities provided by the former CS were inadequate, hence the refusal to lend Sh294 million, which was required for the construction of the houses.

Mr Tuju accuses the lender of providing $9.1 million for the acquisition of the property but the balance, which was meant for the development of high-end residential units for sale, was never disbursed. He says the sale of the units would have offset the loan.

The bank defended itself saying the balance was never disbursed because Dari Ltd breached the agreement by failing to pay Sh1.8 billion ($11.4 million) as at November 10, 2017.

The loans were for the construction of Sh100 million two-storey, flat-roofed bungalows sitting on a 20-acre forested land dubbed Entim Sidai and the purchase of a 94-year-old bungalow built by a Scottish missionary, Dr Albert Patterson, which currently operates as a restaurant.

Read: Inside 100-year-old Nairobi house facing auction

A London court dismissed Dari’s opposition to the bank’s claim, setting the stage for the lender to seek enforcement of the decision.

The UK judgment was adopted by the High Court in February 2020, but Dari Ltd moved to the Court of Appeal and escalated it to the Supreme Court, as he questioned the adoption of the English judgment.

Read: Tuju set for auction after losing Sh2bn UK loan suit

In another case pending at the High Court, Mr Tuju, Dari Ltd and his children say they had secured alternative funding from other lenders and were willing to pay the loan, under the supervision of the court. 

“That the applicants are able, ready and have always been willing to settle the debt with interest accrued subject to a reconciliation and negotiation on the amount due to the 1^st respondent,” Mr Tuju says.

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