The case isn’t over in Tuju versus EADB legal slugfest and justice is not a one-way street. It is double-edged.

Lately, there has been a lot of noise and misinformation regarding the ruling in the case between Raphael Tuju and the East African Development Bank (EADB).

It’s time to set the record straight for those asking “Why Britain?” and “Is it over?”

Why was the case in London?

It wasn’t a “choice” made during the dispute; it was a jurisdiction clause in the loan agreement. EADB, as a regional bank, often insists on English Law because they believe it offers “certainty.” However, a contract does not sit above the Constitution of Kenya.

Betrayal of sovereignty

Why does an institution that operates within our territory, profits from our people, and utilises our resources belittle our legal system and want to handle legal angles in London? We are a sovereign state and we have our own 2010 Constitution. This is unconstitutional. The East African Development Bank has no respect for our territorial sovereignty; they keep dragging us back to the colonial master. Our laws are supreme on our soil and no contract can outsource our Bill of Rights.

It was NOT arbitration – it was a public court

Stop listening to “popular” social media advocates claiming this was a private arbitration. It was a hearing in the High Court of Justice, Business and Property Courts of England and Wales (Case No: LM-2019-000100).

The Judge: Mr Justice Toledano

Reality: A summary judgment was issued. This means the court decided based on “papers” without a full trial. Raphael Tuju was not cross-examined and his side of the story regarding the bank’s breach of contract was never fully tested. They just decided: “You owe, you didn’t pay; pay.”

Kenyan Constitution is the supreme filter

To those saying “the court has decided, let the bank take the property” – you are choosing to support impunity over the Rule of Law. In Kenya, the Constitution is the supreme law.

Article 50(1): Guarantees a fair and public hearing. If a process ignores the merits of a breach and refuses cross-examination, it is not a fair hearing.

Article 10(2)(b): Our national values demand social justice and equity.

Article 37: Provides the right to assemble, demonstrate, and petition when state organs or systems fail to uphold their mandate.

A message to the “apologists of impunity”

We see you. You change your arguments every time a lie is exposed. Be man or woman enough to own your position. As the professor famously said, they found corruption in Kenya and they aren’t going to stop it – so stand up and say it: “I support impunity. I thrive in a system lacking integrity. I am proud to be mediocre because that is how I feed myself.”

Stop using excuses. Once your lie is thrown down, you come up with another to cover the first. Choose a side: Do you stand with the Constitution of Kenya, or do you stand with those who worship at the altar of corruption?

We are not stopping. The property cannot be taken in violation of the Constitution. We stand firm.

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