Dari Ltd & 5 others v East African Development Bank
The bottom line
#Kenya's Supreme Court lifted its own recusal from the Dari Ltd case after the underlying complaint was withdrawn, but refused to review the original ruling.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction, under section 21A of the Supreme Court Act, rule 28(5) of the Supreme Court Rules 2020 or its inherent powers, to review, vary, vacate or set aside its recusal order of 11th October 2024
- 2.Whether the withdrawal of the applicants' complaint to the Judicial Service Commission constitutes an exceptional circumstance warranting vacation of the recusal order
- 3.Whether the allegations of suborned false evidence by the respondent's former employee justify the court's intervention
Key legal issues
#Scope of the Supreme Court's review jurisdiction under section 21A and the Outa principles
Section 21A and the Outa strictures were not applicable in their strict sense because the applicants did not demonstrate fraud, want of jurisdiction, mistaken consent, or repealed or concealed law, and did not contend the ruling was erroneous
The court reiterated the four Outa grounds for review and tested the application against each. The applicants grounded their prayer solely on the withdrawal of the JSC complaint, a supervening factual change, not on any of the statutory grounds. Rule 28(5) was likewise inapplicable. The court therefore declined to review the ruling on its merits.
Effect of withdrawal of the JSC complaint on the recusal order
The withdrawal of the complaints removed the factual basis for continued recusal, justifying vacation of the recusal order going forward, without disturbing the validity of the original ruling
The recusal had been precipitated by the applicants' own JSC complaint. With that complaint withdrawn, the court found no objective basis for continued recusal. Acting under section 3A of the Supreme Court Act and its inherent powers, it declared the recusal vacated prospectively, allowing the four judges to participate in further proceedings in the pending appeal.
Nature of the court's inherent power
Inherent power is ancillary to jurisdiction already properly seized; it is not substantive jurisdiction and cannot reopen the merits of an earlier ruling
The court affirmed its prior jurisprudence that inherent discretionary authority may be used to make orders necessary for the ends of justice, but drew a firm boundary: such power cannot create a new cause of action or serve as a vehicle to reconsider the merits of a prior ruling. It cited Moi High School Kabarak, Republic v Mohammed and Janmohammed in support.
Legal principles established
#- The Supreme Court may review its own decision only on the established grounds: fraud or deceit, nullity, mistaken consent, or reliance on repealed or deliberately concealed law
- Inherent power is ancillary to existing jurisdiction and cannot create a new cause of action or reopen the merits of an earlier ruling
- Cessation of the circumstances that gave rise to a recusal does not alter the validity of the recusal ruling; it only removes the basis for continued recusal going forward
- Litigants bear a responsibility not to casually make allegations grave enough to occasion the recusal of judges
Court orders
#- 1.The notice of motion dated 13th May 2026 and filed on 3rd June 2026 is allowed to the extent that the orders of recusal in the ruling dated and delivered on 11th October 2024 are vacated
- 2.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Sections 3A, 21(2), 23A, 24(1) of the Supreme Court Act; rules 28(5), 31 and 32 of the Supreme Court Rules 2020; articles 2, 3(1), 10, 19, 20, 25, 47, 48, 50, 159(2)(d) & (e) and 163(1) & (4) of the Constitution
Relief refused
#Review, variation or setting aside of the ruling of 11th October 2024 under section 21A of the Supreme Court Act and rule 28(5) of the Supreme Court Rules 2020
The applicants did not show the ruling was procured by fraud, made without jurisdiction, based on mistaken consent, or rendered on repealed or concealed law; nor did they contend it was erroneous when made
Consideration of issues live before the High Court concerning the affidavit of David Odongo
Issues live before the High Court are not available for the Supreme Court's consideration
Costs
Each party shall bear its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The notice of motion dated 13th May 2026 and filed on 3rd June 2026 is hereby allowed to the extent that we vacate the orders of recusal in the ruling dated and delivered on 11th October 2024.
Each party shall bear its own costs.
Inherent power is, however, not substantive jurisdiction capable of creating a new cause of action. It is not a jurisdiction to reopen and reconsider the merits of our earlier ruling under consideration.
There is a corresponding responsibility on a litigant not to casually make allegations sufficiently grave to occasion the recusal of five of the seven Justices of the Supreme Court.
An apology cannot be compelled, nor do we insist it must be tendered first for this court to exercise its inherent jurisdiction.
Issues in the judgment
#Alma Tuju appears twice in the coram, as both 3rd and 4th applicant
Submissions date given inconsistently as 13th May 2026 and 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dari Ltd & 5 others v East African Development Bank", Case Analysis (2026). Petition (Application) E012 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kesc/2026/59/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.