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Tuesday, February 18, 2020

Court okays Tuju’s assets to be auctioned over Sh. 1.5 billion loan

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Jubilee Secretary General and Cabinet Secretary without portfolio Raphael Tuju has suffered yet another blow. This is after the High Court gave the green light for his assets to be auctioned over a bank loan amounting to Sh. 1.5 billion.

The High Court verdict that was read by High Court judge Wilfrida Okwany paved the way for the seizure of Mr Tuju’s assets by the East Africa Development Bank (EADB) for the loan advanced to his company, Dari Limited. Tuju had moved to the High Court after a United Kingdom court ruled in favour of EADB. Tuju and EADB had agreed that they would settle any dispute over the loan before an English court.

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According to court documents, Tuju’s Dari borrowed Sh. 900 million in 2015 to purchase a property known as Tree Lane in Nairobi. Tuju agreed to use titles of his expansive parcel in Karen as security. In the UK court, Tuju explained that there was a Phase Two of the project, which would involve raising additional financing. The court heard that it was understood the loan advanced to Dari would be paid through the second phase project. But Justice Toledano found that the agreement between the parties did not say anything about a two-phase project.

In the case, CS Tuju had argued that the ruling by the UK court deputy judge Daniel Toledano could not be enforced in Kenya, as he was not given a fair chance in the English court to challenge EADB’s claim. But the court dismissed this argument.

According to judge Wilfrida, Raphael Tuju had an opportunity before the UK Court of Appeal, but which he lost. SHe further ruled that said Tuju’s argument amounted to asking the Kenyan court to sit on appeal of the UK court.

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“The jurisdiction of the court is limited to the enforcement of the foreign judgment. Any further challenge to the finding of the UK court can only be determined by the English court. The order of the UK court cannot be impeached by this court,” the judge Wilfrida ruled.

In the UK court, EABD argued that Dari defaulted on its obligation. The court heard that nothing was paid despite the demand. “The claimant (EADB) commenced the action and seeks to recover by way of summary judgment the sums under the terms of facility agreement. As at the date of hearing, that sum is $15 million dollars (Sh. 1.5 billion),” EADB told UK court.

But CS Raphael Tuju told the UK court that EADB was holding titles of 27 acres of land as security. He said that if his firm Dari was put under receivership, its operations would be affected.

The UK judge ruled as follows: “I have been referred to the minutes of the board meetings which resolutions were passed approving the loan arrangements. There is no reference in those documents to the alleged representation concerning Phase Two. Indeed, it was accepted by Defendant Two in his letter dated May 20, 2016 that the bank “remained silent” on the Phase Two lending. I, therefore, conclude that this head of defence does not provide any arguable basis for a defence either.”

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