Former Cabinet Secretary Raphael Tuju has suffered a major setback after the Supreme Court once again threw out his application seeking to be allowed to adduce new evidence in his fight to block the seizure of a Ksh3.5 billion Karen property by a regional lender.
A Bench of five judges of the Apex Court presided by Deputy Chief Justice Philomena Mwilu rejected Tuju's second application to adduce additional evidence, saying that the former CS has not explained the relevance of his intention to adduce a further witness statement given by an official of the East African Development Bank (EADB) to the Directorate of Criminal Investigations (DCI) last year concerning their appeal.
"As a matter of course, the petitioners have not explained the relevance of this further witness statement in relation to their appeal. In our view, it is apparent that the petitioners, dissatisfied with our Ruling dated November 7, 2023, declining to strike out the respondent’s(EADB) replying affidavit sworn by Justa Kiragu, now seek, rather ingeniously, a second bite of the cherry through this application as the further witness statement that they seek to introduce is intended to counter the averments made in Justa Kiragu’s affidavit. We inevitably find that grant of leave to adduce additional evidence has not been satisfied," the five judges of the Supreme Court have ruled.
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In January this year, Tuju had filed an application at the top court seeking to be allowed leave to adduce additional evidence for purposes of the hearing and determination of a second appeal, a further witness statement recorded with the Directorate of Criminal Investigation (DCI) by one David Washington Barnabas Ochieng dated December 21, 2023.
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.
The former CS had urged the Supreme Court to allow the evidence of the DCI officer, saying the same was directly relevant to the matter as it was capable of impacting the final decision. According toTuju, he could not have obtained the evidence before as the officer only recorded the statement in December last year.
"David’s further witness statement, he retracts his earlier assertions as captured in his prior witness statement and corroborates our position on the nature of the Facility Agreement as well as the history of engagements between the parties as given by East African Development Bank's official Kiragu," Tuju through Lawyer Paul Muite.
