As Kenyans are treated to the drama and greed in which the East African Development (EADB) has become the central architect, it is still unclear why regional financial institutions prefer to use the London law.

Here is an anatomy of the opaque contract between EADB and Kenya’s former foreign minister Raphael Tuju that raises questions and paints clear the enduring colonial-cum-slave mentality. More crucially, the case raises weighty questions about the sovereignty of Kenyan constitution.

Many people are asking: Why did a case involving Kenyan land, a Kenyan business and a Kenyan director go to London?

As I search for the actual contract to dissect its specific clauses, we must look at how the bank used the very words of the agreement to trigger their targets.

Predicament of asymmetric information: An opaque contract is one where the bank understands the exit strategy (the exact moment they will take the land), while the borrower only understands the fine details of the contract that are written and spelt out to him.

Complexity: The contract was designed so that the bank could hide the ‘exit clause’ using the very words and triggers outlined on the page. It wasn’t a hidden secret; it was a loaded spring.

Reality: The borrower asked the right questions and read the contract appropriately. Similarly, the bank was waiting for absolute discretion to trigger. This allowed them to stop funding ‘Phase 2’ the moment their exit became more profitable than the project’s success.

Does London Law allow absolute discretion?

Yes. English law is built on party autonomy. If you sign, the court acts like a robot. It says: ‘You agreed to this; the bank doesn’t owe you a reason for staying silent while your project withers.’ They choose cold fiction over proportionality.

‘Braganza duty’: The shield the court missed

Even with absolute discretion, a bank cannot act like a thug. The Braganza Rule (UK Supreme Court, 2015) implies that discretion must be exercised rationally.

Nine-month silence: Staying silent for nine months while interest ticked was an irrational exercise of power. The London court ‘missed’ this through a summary judgment – a fast-track process that ignores empathy and witnesses.

Jurisdiction jump: Evading the Kenyan constitution

The bank knew that within our borders, the 2010 Constitution and the Conflict of Interest Bill 2025 would be a shield for our sovereignty. By jumping to London, they sought to rule Kenyan land by foreign laws.

Our Sovereignty: Kenya is no longer a colony. The land is ours. The bank must respect our Constitution. We cannot afford to have our territorial sovereignty subverted by foreign ‘legal manoeuvres.’

‘Comfort trap (Familiarity bias): Having served as minister for foreign affairs and a minister without portfolio, the borrower had seen his peers in government procure similar development loans from this very institution.

Trust: He knew EADB as a development bank, not an unethical predator. He saw them being ‘lenient’ and supportive to others in government, which created a sense of good faith.

Trap: This familiarity replaced the necessary distance. He expected the same partnership his peers received; instead, the bank used the exit clause to trap him.

Lesson: The lesson here is simple but harsh: Never trust people just because they employed you or because of peer association. We must learn to strictly differentiate between employment, contracts, family, and development projects. When a ‘big hand’ is involved, familiarity is a liability.

‘Trust is a virtue in a friendship but in a contract, only clarity is a virtue.

• A Tell Media report / By Faith Mirunde Hakala – Ms Hakala is a public legal educator and a long-serving paralegal in Kenyan judiciary.