The East African Development Bank (EADB) has noted that the Nairobi High Court Constitutional and Human Rights Division has no jurisdiction to hear Raphael Tuju’s notice of motion application dated March 27, 2026.

Through a preliminary objection dated April 13, 2026, EADB states that they will be raising a preliminary objection that the High Court lacks jurisdiction to hear and determine both the said application and petition.

The EADB, through its principal legal officer Carol Luwaga, states that both Tuju’s and Dari’s applications are incompetent and fatally and incurably defective, as they are barred by the operation of the doctrine of res judicata.

Further, the regional bank urges the court to strike out Tuju’s and Dari Limited’s applications and petitions, arguing that they are not entitled to any of the orders they are seeking.

The bank avers that it’s immune to the judicial proceedings, stating that the immunity has not been waived at their discretion by dint of Section 3 of the East African Development Act Cap. 493, Laws of Kenya (as amended by the Statute Law (Miscellaneous Amendments) Act, 2007 (Act No. 7 of 2007)).

The affidavit further reveals that the bank has not waived its immunities so far as to now be joined and sued through instant application, the petition and these proceedings, adding that the petition and proceedings ought not to have been commenced against them.

“I am advised by the 1st respondent (EADB), advocates on record, whose advice I believe to be accurate, that the 1st respondent (EADB) is immune from every form of legal process,” Luwaga states in the replying affidavit. 

In the replying affidavit, Luwaga avers that Tuju and Dari Limited cannot sustain any further prosecution of their petition in the absence of the waiver of immunity for and by them.

They cite that the raised issues in relation to the dispute between the two petitioners and EADB have already been heard, determined and resolved by the English High Court of Appeal, the High Court of Kenya, the Court of Appeal of Kenya and the Supreme Court of Kenya.

“I reiterate and continue to rely on the cited decisions by the respective courts, all which demonstrate that the application and petition are now barred from being heard and determined by this court by the operation of the doctrine of res judicata under sections 7 and 9 of the civil procedure Act Cap. 21 Laws of Kenya,” principal legal officer Luwaga states.

In addition, EADB argues that by the petitioners seeking orders in relation to the facility agreement from the Constitutional Court fully aware of the pending proceedings before the Supreme Court, it is an abuse of the court process, which should not be entertained.

The bank also strongly argues that the petitioners have not satisfied the threshold for the grant of the conservatory and status quo orders sought in the application pending the hearing and determination of the petition.

In addition, they state that the petitioner’s pursuit of conservatory and stay orders before the Supreme Court was dismissed in the substantive Supreme Court conservatory and stay ruling.