Former Cabinet Secretary Rafael Tuju has written a damning letter to Chief Justice Martha Koome, accusing Supreme Court of Kenya (SCOK) judges of irresponsibility.
In the letter dated 21st March 2025, Tuju says that if their ‘irresponsible’ behaviour goes unchecked, the SCOK judges will burn Kenya.
Tuju accuses the apex court judges of being very loud in the public domain, “making statements and moves in the Judiciary as if they are infallible.” He says that they are discussing in the public domain matters before the High Court and at the Judicial Service Commission (JSC).
“What should mere mortals like me do when they do this on cases that affect us?” Tuju posits
While acknowledging that the Judiciary is an important pillar of the state, and the last bastion for protection of the constitutional rights of all citizens, Tuju maintains that the SCOK judges must bear the solemn responsibility of carrying out their duties with wisdom, sensitivity, uphold the rule of law, ensure fair trial and protect the constitution.
“An irresponsible SCoK can easily make our country burn just like it happened in the USA. It is only after the civil war that the US Congress, another arm of government enacted the legislation to ensure that the abhorrent and immoral ruling of the Supreme Court that supported slavery was vacated,” Tuju argues.
‘Hot air, wild goose’
Tuju finds offense in the manner the said judges conducted themselves during the ruling of the 2022 Presidential Petition filed by Azimio-One Kenya Coalition. According to the former Rarieda MP, they demonstrated immaturity and impunity while dismissing the petition.
“The SCoK has the right to make the judgements as they see fit and we all have no choice but to accept the verdict. But in a country so divided as was the case in the USA between the Southerners and Northerners, our SCoK should have found words better than ‘hot air’ and ‘wild goose chase.'”
He advises that the SCOK judges should have proceeded with moderation in their ruling, putting into consideration the aftermath of the closely contested presidential election—emotions were severely inflamed as ethnic polarizing rhetoric before, during and after the election, featured with abandon.
“The SCoK should have been more temperate in their language as they carried out a solemn duty while adorning attire similar to what Bishops wear.”
To Tuju, the judges’ language was akin to “pouring petrol into the fire in the midst of a highly inflammable environment” instead of cooling things down by using the right language.
“I state this with conviction because we are all responsible for building our nascent important institutions of the state. I have to inform you of the following not because you don’t know, but because I intend it for the benefit of other Kenyans reading this open letter to you Madam Chief Justice.
“Kenya is not a nation state, but a geographical phenomenon courtesy of our colonial legacy. The work of creating a modern state and a united, peaceful and prosperous country is a very arduous work in progress and very much in its embryonic stages,” Tuju notes.
While citing counties such as Baringo, West Pokot, Turkana, Lamu and Mandera where it reaches a point security is so dire that pupils cannot go to school, Tuju says that Kenya is fragile and that the SCOK judges must not be so reckless to add fuel to the fire that can engulf our country.
“The country can survive a defective, dysfunctional and corrupt Executive or Legislature. Kenyans can significantly change these two branches of government through elections every 5 years. But our Lords the Justices of the SCoK have a security of tenure. The checks and balances to ensure that impunity do not feature in their actions is vested in the Judicial Service Commission (JSC),” he says.
In the letter, the former CS highlights his ongoing legal battle with the East African Development Bank (EADB) over a disputed 27-acre piece of land in Karen, Nairobi, claiming that it has escalated into a conflict with five Supreme Court Judges.
Here is the rest of Tuju’s open letter to CJ Koome
When SCoK judges attempt to stop proceedings at the JSC, then it can only mean that they want a license for impunity. In their recent public statements, the SCoK judges rightly insist that they must be respected by Kenyans. But I believe that they too should respect the law of the land, and the constitutional bodies like the JSC. And by the way, I repeat they should stop making public comments on matters at the JSC and in court. They should start by respecting their own institutions.
The SCoK judges want immunity from the JSC yet other judges of the High Court have been subjected to the JSC process. Undermining the JSC is undermining the Constitution.
It is in the public domain that some four out of seven SCoK judges have a reputation for exhibiting drunkenness in public. If you are in doubt I can send you some videos currently circulating in the social media with some SCoK judges making incoherent statements in their drunken stupor.
Then they have the audacity to demand respect from us.
What example are they setting for younger judges in the lower courts and indeed what kind of role models are they to our children pursuing courses to become professionals in the legal field.
At the center of my conflict with EADB and now also against 5 Supreme court judges is a 27-acre piece of land in the Karen area of Nairobi. These pieces of land have been the object of covetous lust by individuals hiding behind EADB, the Judiciary, some crooked Law firms and crooked Auctioneers.
For the benefit of the Gen Zs who may read this open letter, and who may be wondering how I acquired that relatively big pieces of land, it is important that I give one or two sentences to explain myself.
None of my Karen lands are grabbed public land. Neither is any of them bought from proceeds of crime of money stolen from public coffers despite having been a senior public servant at some stages of my life. Being politically exposed, I am awake to the fact that I can easily become a victim of mass media and public lynching when people are not able to understand the sources of my properties.
I can confirm to all that I first acquired my piece of land in Karen some 39 years ago when I was a young journalist in my 20s working as a producer of documentaries and a TV news anchor.
The public and the media on several occasions in the near past have been the victims of facile manipulation by a PR firm hired by the EADB to push a negative narrative against me ignoring these historical facts of my life and career.
I was young, but I borrowed money to buy 2.5acres when an acre used to be bought at one hundred thousand shillings. I borrowed money progressively from National Bank of Kenya and Kenya Commercial Bank over the years and bought more.
It is these lands now that various vultures are circulating over, trying to grab them at any cost.
The foregoing being only but a background, this is the third letter I have written to you Madam Chief Justice with regard to my case. I enclose all together with your replies for ease of reference.
My first letter received your response when you stopped the panel of 5 judges from engaging in an obvious and shameful infraction of court procedures.
My second letter listed a further seven violations of the law and court processes by the panel of 5 SCoK judges despite your earlier intervention. In this second instance, I received a letter from all the seven judges including yourself. You never denied the seven grounds of misconduct that included refusal to allow my constitutional right to a rejoinder. The judges had also dismissed my evidence on the grounds that I had stolen the documents from the EADB offices in Kampala. The response of the seven judges bordered on the ridiculous. I quote “the issues raised in your letter are very disturbing.” (Here enclosed for your reference).
It later emerged that these were lies by bank lawyers after investigations by the DCI.
When the 5 judges continued with their violations and open biases, I got their drift loud and clear. I reported some of the most immoral rulings and abuse of process to the JSC. This included a ruling they made that my property may be auctioned and, in the event, that my case succeeds, in future then the bank because they are rich can always compensate me for the damages. It is to say, that we will proceed with executing you now but in the event that we have made a mistake and you win the case in the end, then the rich bank can always bring you back to life. This is the sort of precedent that those 5 Supreme Court judges have set in our jurisprudence. Worse still the bank itself had not made such request in their pleadings to the court. This was a favor the SCoK decided to extend to the bank on their own motion.
I don’t need to be a lawyer to read the immorality in such a ruling. The law cannot be the foundation of morality, it is the other way round your Honor. Morality is the foundation of a good law.
The rulings against Mandela, Jomo Kenyatta and thousands of other litigants may have been legal but immoral. I have not encountered any ruling anywhere in the world where a judge says that lets get over with execution now. We can always correct any mistake through compensation. These are the type of issues I brought to the JSC because they set a dangerous precedent from our apex court.
For me it is too late. But Kenyans should be protected from this kind of mischievous precedent by the SCoK.
Also, before the Senior Counsel Committee that you chair are two cases against SC Fred Ojiambo and SC Githu Muigai with respect to the manufacture of false affidavits that have now been recanted at the High Court and are at the center of criminal proceedings against the EADB officials at the Nairobi Magistrates Court.
With respect to SC Githu Muigai, with declaration of the EADB act as unconstitutional by the High Court in Machakos on 20th March, 2025(only yesterday), we are looking at a serious criminal conflict of interest as he chaperoned this legislation in parliament when he was the AG while his firm was at the same time doing roaring business with EADB who remain his clients to this day.
When the panel of 5 SCoK judges saw things go south as affidavits before them were recanted, they did something rather “clever.” The 5 judges recused themselves. An action with no precedent in the Commonwealth Jurisprudence. They needed not to recuse themselves. The case before them had collapsed because the affidavit before them had been recanted. Hence their “clever” move to recuse themselves.
If they had allowed us to put a rejoinder which is our constitutional right, before they made some of their outrageous rulings, they would have been spared the current predicament and embarrassment as they engage in a “wild goose chase” to various courts including a Narok court in desperate attempt to stop the proceeding at the constitutional body called the JSC that has asked them to respond to my pleadings.
In the meantime, they have removed me from the seat of justice up to the year 2036 when the youngest of them will retire. If I will be alive by then, I hope to get my day in court even if all the evidence I have will be dismissed as “Hot air.” While you cannot do anything about the 5 judges except, within the context of the JSC, you can do something to set up a tribunal to interrogate the conduct of SC Fred Ojiambo and SC Githu Muigai for gross professional misconduct. So that they may stripped off the title of SC.
I pray that you get the courage to carry out your onerous constitutional duty without fear or favor.
