Reviewed by Billy Mijungu
The Kenyan judiciary is increasingly under scrutiny as two high-profile cases reveal a pattern of questionable decisions and apparent complicity by the Supreme Court. The legal battles involving former Cabinet Secretary Raphael Tuju and Senior Counsel Ahmednasir Abdullahi expose a judiciary that appears to be entangled in political and financial interests rather than upholding the rule of law.
These cases also reignite the debate over judicial accountability and the need for constitutional reforms, particularly the proposal for a judicial ombudsman as recommended by the Building Bridges Initiative.
Tuju’s dispute with the East African Development Bank revolves around a 1.2 billion shilling loan meant for a real estate development on a 27-acre property in Karen, Nairobi. The bank initially approved 900 million for land acquisition and 300 million for development, with Tuju contributing an additional 100 million.
However, after disbursing the 900 million, the bank withheld the 300 million meant for development. Tuju argues that this amounted to a breach of contract since the success of the project hinged on receiving the full amount. Despite the partial disbursement, the bank still demanded full repayment, eventually leading to the auctioning of the Karen property in October 2024.
Tuju challenged the sale, asserting that it violated existing court orders barring EADB from disposing of the property while legal proceedings were ongoing. He filed a lawsuit against multiple parties, including the bank, the auctioneer Garam Investments, and the Attorney General, seeking to nullify the sale. The case took an unexpected turn when a bank official recanted previous statements, admitting that the bank had only partially fulfilled its financial obligations and that Tuju’s business alone could not have serviced the loan without the development funds. Tuju further alleged that EADB board members had previously taken loans and had them written off, raising concerns about selective financial dealings within the institution.
However, the most concerning development in Tuju’s case was the Supreme Court’s handling of his appeal. Five Supreme Court judges, including Chief Justice Martha Koome, recused themselves, effectively stalling his case indefinitely. With the youngest of the recused judges set to retire in 2036, Tuju has expressed frustration that his legal battle may never reach a conclusion. This raises serious questions about judicial impartiality and whether external influences are shaping decisions at the highest level.
A similar pattern of judicial maneuvering can be seen in Ahmednasir Abdullahi’s case. In January 2024, the Supreme Court took an extraordinary step by indefinitely barring the senior lawyer and his firm from appearing before it. The court justified its decision by citing Ahmednasir’s public criticisms of the judiciary, which it claimed undermined its credibility. This move was widely seen as an attempt to silence a vocal critic rather than a legitimate disciplinary action. Ahmednasir and his firm challenged the ban, arguing that it was arbitrary and unconstitutional.
Their petition pointed out that the decision was administrative rather than judicial and that no due process had been followed. The Law Society of Kenya also intervened, filing a petition against the Supreme Court’s ruling. In a significant setback for the court, the High Court refused to dismiss the petition, affirming that it had jurisdiction over constitutional matters even when they involved Supreme Court decisions.
However, just as the case was gaining traction, the Court of Appeal intervened, suspending the High Court proceedings. This move was prompted by an appeal from the Supreme Court, which argued that the High Court had overstepped its mandate.
The result was yet another case trapped in judicial limbo, with no resolution in sight.
Both Tuju’s and Ahmednasir’s cases underscore a troubling reality: the Supreme Court, which should be the final arbiter of justice, appears to be wielding its authority selectively, either by stalling cases or by silencing critics.
In Tuju’s case, the mass recusal of judges has effectively delayed justice for over a decade, while in Ahmednasir’s case, the court has weaponized administrative decisions to suppress dissent. These instances suggest a judiciary that is not only complicit in protecting certain interests but is also actively reshaping the legal landscape to its advantage.
The question then arises whether Kenya’s judicial system requires structural reforms to prevent such abuses. The Building Bridges Initiative proposed the establishment of a judicial ombudsman, appointed by the president, to oversee judicial accountability.
Supporters of the proposal argue that the current system lacks an effective mechanism to check judicial misconduct. They point to cases like Tuju’s and Ahmednasir’s as evidence that judges can act with impunity, making decisions that serve personal or political interests rather than justice. However, critics warn that a judicial ombudsman appointed by the executive could compromise judicial independence, allowing the government to exert undue influence over the judiciary.
The fate of these cases remains uncertain, but what is clear is that Kenya’s judicial system is at risk of dysfunction. If the highest court in the land can selectively enforce justice, delay cases indefinitely, and bar critics without due process, then the entire legal framework is compromised.
The judiciary’s role is to uphold the law, not to manipulate it for convenience.
As these legal battles continue, they serve as a stark reminder that without accountability, the very foundation of justice in Kenya stands on shaky ground.
Whether this accountability should come from internal judicial mechanisms or through external oversight like a judicial ombudsman remains a critical national debate.
