A multi-billion shilling debt dispute between former Cabinet Secretary Raphael Tuju and the East African Development Bank (EADB) has become the unlikely flashpoint in what is shaping up as Kenya’s most significant constitutional battle over judicial independence in recent memory.
Tuju lodged a complaint before the Judicial Service Commission accusing several Supreme Court judges of bias, incompetence and misconduct arising from the court’s handling of disputes involving him and his company, Dari Limited.
The complaint led to the recusal of five Supreme Court judges from his case in October 2024 and the subsequent filing of petitions seeking their removal.
The background to the dispute involves the enforcement in Kenya of a United Kingdom judgment over a multi-billion shilling loan advanced to Dari Limited.
That debt, which has reportedly ballooned to over Sh4.5 billion, has spawned a protracted legal battle across multiple courts.
Tuju alleges the Supreme Court’s handling of his cases demonstrated predisposition rather than neutral adjudication, constituting bias and an abuse of judicial authority.
But those arguments came under sharp scrutiny on Friday as the six Supreme Court judges, including Chief Justice Martha Koome and Deputy Chief Justice Philomena Mwilu, appeared before a three-judge High Court bench at the Milimani Law Courts to challenge the constitutionality of the JSC proceedings.
Through Senior Counsel George Oraro, Chief Justice Koome told Justices Charles Kariuki, Lawrence Mugambi and Bahati Mwamuye that Tuju’s complaint, like those of fellow petitioners Nelson Havi and Ahmednasir Abdullahi , does not identify any of the recognised constitutional grounds for judicial removal.
“A reading of the petitions shows they are aggrieved grievances with court determinations. They are not removal grounds.”
Oraro specifically cited Civil Appeal No. E012 of 2023, a Tuju-related matter, and the Supreme Court’s November 7, 2023 doctrine of necessity ruling, arguing that the petitions are effectively an invitation for the JSC to correct those decisions.
He said the commission has no such jurisdiction.
Advocate Ken Nyaundi, appearing for Supreme Court Justice Isaac Lenaola, pressed the point further, noting that the complaint against his client in connection with the Dari Limited matter lacked even a factual foundation.
“There is no need for the JSC to ask Justice Lenaola to respond where Dari Limited has clearly confirmed the judge did not handle the matter.”
Nyaundi told the bench that Dari Limited, the company at the centre of Tuju’s dispute, had written expressly to confirm that Justice Lenaola was not involved in the handling of the matter, removing any factual basis for summoning him before the commission.
DCJ Mwilu’s advocate Winnie Bett underscored the constitutional limits of the JSC’s mandate, telling the bench that a thorough reading of the petitions reveals no allegation of mental incapacity, bankruptcy, corruption, personal misconduct or any other ground enumerated under Article 168 of the Constitution as a basis for removing a judge.
“The JSC cannot be converted into an appellate forum. Disagreement with a judgment is not misconduct.”
Bett went further, warning that allowing the JSC to proceed would cause immediate and irreparable harm to her client,not because the commission might find against her, but because subjecting a judge to a process that is constitutionally ultra vires is an injury in itself, arising the moment a flawed jurisdiction is asserted.
The JSC, through counsel Issa Mansur, maintained it was acting within its constitutional mandate under Article 173 and urged the court to dismiss the judges’ petitions as premature and misconceived.
The commission noted that the judges had not yet even filed their responses to the complaints, and argued that it was far too early for the High Court to intervene.
“These petitions are not the first options to be considered by the JSC. The commission will review the complaints, and if they meet the threshold, they will be certified and sent to the President. If not, they are dismissed.”
The hearing also opened with a solemn moment: the bench, led by Justice Bahati Mwamuye, observed a minute of silence for Justice Mohammed Ibrahim, listed as the seventh petitioner, who passed away on December 17, 2025 before the matter could be heard.
Justice Mwamuye announced that proceedings would continue with Justice Ibrahim discharged and his counsel excused from further participation.
The central constitutional question before the three-judge bench, whether the JSC can process complaints that are rooted entirely in dissatisfaction with Supreme Court decisions rather than in recognised grounds for judicial removal, remains unresolved as the court reserved its directions on the applications to quash the proceedings.
If the High Court sides with the judges, it would effectively insulate Supreme Court decisions from any form of external accountability through the JSC, cementing judicial finality as near-absolute.
If it sides with the JSC, it could open a new avenue for challenging apex court decisions through disciplinary proceedings, a development that the judges have warned could destabilise Kenya’s constitutional architecture.
