RULING
1. This consolidated ruling determines three distinct applications filed by way of Notice of Motion by the 1 st , 2 nd and 3 rd Applicants herein. All three applications challenge the ex parte preservation orders issued by this Court on 4 th May 2026 under Section 82 of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA). The applications seek the discharge, lifting, variation and/or rescission of the said orders.
2. The Respondent herein, Assets Recovery Agency, opposes all three applications through its respective Replying Affidavits, asserting that the statutory thresholds for variation or rescission of a preservation order set out under Section 89 of POCAMLA have not been met.
3. For proper order and avoidance of doubt, the three applicants who were the 1 st , 2 nd and 3 rd Respondents in the application for preservation orders and who have retained the same identity in their instant applications, shall be referred to as the 1 st , 2 nd and 3 rd Applicants herein, whereas the Asset Recovery Agency shall be referred to as the Agency or Respondent. The court will determine the three applications sequentially.
Applicants Case
4. By a Notice of Motion dated 25 th May 2026 filed under certificate of urgency, and brought under Sections 82, 84 and 92 of POCAMLA, Order 1 Rule 10, Order 10 Rule 11, Order 40 Rules 1 and 9 and Order 51 Rule 1 of the Civil Procedure Rules, Section 1A and 1B of the Civil Procedure Act, the 1 st Applicant the seeks for the following orders;
i. Spent.
ii. That the ex parte orders of this Honourable Court restricting, freezing, or limiting access to the Bank accounts of Syllus Musila Kivyatu held at Cooperative Bank Ltd Account Nos. 01108103184700, 01101031847004 and 01101031847002 and Equity Bank Ltd Account No. 0950173195576 be set aside, vacated and discharged forthwith.
iii. The Cooperative Bank and Equity Bank Ltd be directed to immediately lift all restrictions of the aforesaid accounts and restore the applicant’s full and unencumbered access thereto.
iv. That the Asset Recovery Agency be ordered to show cause why these proceedings should not be struck out as an abuse of the court process.
v. That the Assets Recovery Agency be ordered to pay costs of and incidental to this application.
vi. That the honourable court makes such further or other orders as it deems just.
5. The application is premised on the grounds set out in the Motion and in the Supporting Affidavit of Syllus Musila Kivyatu sworn on 25 th May 2026 as well as the Supplementary affidavit sworn on 6 th July 2026. The 1 st Applicant challenged the issuance of the ex parte preservation orders which he termed as unprocedural, illegal and deprived him the right to fair administrative action and fair hearing guaranteed under Article 47 and 50 of the Constitution. He further stated that the entire application for preservation orders by the Respondent was misconceived and incompetent for having been grounded upon laws that did not permit issuance of such orders, that the evidence relied upon by the Respondent was insufficient to justify issuance of the orders, and that no reasonable grounds were made to warrant invocation of Section 82 of POCAMLA.
6. He further averred that he was the lawful and beneficial owner of Account Nos. 01108103184700, 01101031847004 and 01101031847002 held at Cooperative Bank of Kenya and Account No. 0950173195576 held at Equity Bank ltd, stating that he was denied justice by the closure of the file after ex parte orders were issued without his notice, participation, knowledge or involvement in the hearing.
7. He contended that the Respondent misled the court into issuance of the orders arguing that he was not and has never been connected to, associated with the 2 nd and 3 rd Applicants herein. He stated that he was not served with the impugned orders and only came to learn about their existence when he went to transact in his bank and was informed that the accounts have been frozen.
8. He challenged the basis of the information relied on by Zacharia Lekishon, the investigation officer from the Respondent, Asset Recovery Agency, contending that it was bare, unparticularized and amounted to hearsay with no probative value for failing to disclose the source of the information, failing to establish a connection between the transactions and any specific criminal offence or giving particulars of transactions said to be suspicious.
9. He denied that his accounts have been used as conduits of money laundering stating instead that all funds therein were derived from him lawful income from selling of second-hand motor vehicle accessories as well as brokering the sale of motor vehicles.
10. He stated that there was no evidence to justify the investigation into his accounts and that the use of investigative access orders to freeze and restrict his accounts without satisfying the threshold set out in Section 82 of POCAMLA w as unlawful and intended to circumvent the legal and procedural requirements set out in the said law. He took the view that since the Magistrate Court in Anti-Corruption Criminal Case No. E1740 of 2025 had discharged the earlier orders that restricted access to his accounts on 30 April 2026, there was basis for the current restriction by the Respondent.
11. He averred that the restriction orders have caused severe financial hardship and irreparable harm since he is unable to meet his daily living expenses, pay school fees, rent, mortgage, medical expenses, business and financial obligations to third parties resulting in losses and damage the his business, accumulation of interest, penalties and reputation damage.
12. He further averred that an application for preservation orders under Section 81 and 82 of POCAMLA must be based on the existence of reasonable founds founded on verifiable facts, utmost good faith and full disclosure of all material facts include adverse facts against the Agency such as the existence and fate of prior proceedings before the Magistrate’s Court. He contended that the Respondent concealed material facts and was not entitled to the ex parte orders.
13. He reiterated that he not just seeking variation of the ex parte preservation orders of grounds of hardship under Section 89 of POCAMLA but that he is asking the court to set aside the entire orders which he deems to be a nullity for having been obtained through material non-disclosure, being an abuse of the court process, having been obtained on the basis of insufficient facts and for being a violation of Articles 40, 47 and 50 of the Constitution.
14. He also averred that based on legal principles set out by the Supreme Court in the case of EACC vs Pamela Aboo, SC petition No. E044 of 2024 (consolidated with Petition No. E046 of 2024) , the Respondent did not prove any nexus between the Applicant and a crime in the entire chain of events that triggered the instant proceedings.
15. The 2 nd Applicant vide a Notice of Motion Application dated 3 June 2026 filed under Certificate of Urgency and brought under Section 118, 118A, 119 and 121 (10 of the Criminal Procedure Code , Section 180 (1) and (2) of the Evidence Act , Section 53A, 105, 106 and 107 of POCAMLA sught for the following orders;
i. Spent.
ii. THAT the orders issued on 4th May, 2026 closing this file be set aside and the file be reopened.
iii. THAT this Honourable Court be pleased to set aside the orders issued on 4th May 2026 in respect of account number 01108108848800 held in the name of ISAAC SHAMORA ALIGULA at Cooperative Bank Limited.
iv. THAT this Honourable Court be pleased to lift and/or discharge the restriction/preservation order issued on 4th May 2026 in respect of account number 01108108848800 held in the name of ISAAC SHAMORA ALIGULA at Cooperative Bank of Kenya Limited.
v. THAT this Honourable Court be pleased to order the immediate unfreezing and/or de- restriction of account number 01108108848800 held in the name of ISAAC SHAMORA ALIGULA at Cooperative Bank of Kenya Limited, to enable the Interested Party to conduct her/his legitimate financial transactions.
vi. THAT the costs of this application be in the cause.
vii. THAT this Honourable Court be pleased to grant any other or further relief as it may deem just and fit in the circumstances.
16. The application is based on the grounds on the face of the application and supported by the Affidavit of Isaac Shamora Aligula sworn on 3 rd June 2026 as well as the Further Affidavit by the same deponent sworn on the 10 th July 2026.
17. In his application, the 2 nd Applicant averred that his account number 01108108848800 has been restricted vide the orders of this Court dated 4 th May, 2026 which orders were obtained without notice and that the continued restriction is without any justification, allegation or nexus to the investigations.He argued that no link has been established between his bank account and the alleged offence of money laundering or any other criminal activity hence the continues restriction serves no legitimate investigative powers.
18. The deposed that similar orders had been sought in Misc Criminal Application no. E1740 of 2025 in which restriction orders were issued and upon conclusion of investigations, they were vacated and the file closed. He thus took the view that in seeking substantially similar orders arising from the same subject matter is an abuse of Court process, amounts to double jeopardy and offends the doctrine of res-judicata.
19. He stated that the funds in his account constituted legitimate income derived from his business, welfare group contributions and payouts and personal financial dealings, and that the restriction continues to prejudice him since he is unable to meet his day to day financial and business obligations or conduct legitimate transactions.
20. The 3 rd Applicant filed a Notice of Motion Application dated 29 June, 2026 under Certificate of Urgency pursuant to Article 47, 49 and 50 of the Constitution , Sections 89 of POCAMLA, Order 51 Rule 1 of the Civil Procedure Rules , seeking the following orders;
a) Spent
b) THAT Pending the hearing and determination of this Application, this Honourable Court be pleased to permit the Applicant limited access and operation of Account Number 1292745444 at KCB Bank Kenya Limited for purposes of payment of school fees, restocking business premises, settlement of supplier obligations and meeting reasonable living expenses.
c) THAT this Honourable Court be pleased to vary, discharge and/or rescind the preservation orders issued on 4th May 2026 preserving the sum of Kshs. 736,910/= held in Account Number 1292745444 at KCB Bank Kenya Limited pursuant to Section 89(1)(a) of the Proceeds of Crime and Anti-Money Laundering Act.
d) THAT this Honourable Court be pleased to order the removal and/or lifting of the caveat and/or restriction unlawfully placed by the Respondent against Motor Vehicle Registration Number KCD 371S Toyota Noah.
e) THAT this Honourable Court be pleased to direct KCB Bank Kenya Limited to forthwith lift any freeze, restriction or limitation imposed on Account Number 1292745444 and allow the Applicant unrestricted access and operation thereof.
f) THAT the costs of this Application be provided for.
g) THAT this Honourable Court be pleased to grant such other and/or further orders as it may deem fit and just in the circumstances.
21. The application is based on the grounds on the face of it and supported by the affidavit of Adhiambo Mourine Abonyo sworn on 29 June 2026 as well as the supplementary affidavit by the same deponent sworn on the 22 June 2026.
22. The 3 rd applicant averred that the delay in filing the application was occasioned by lack of money for legal fees. She stated that the 1 st and 2 nd Applicants were unknown to her as alleged in the by the Respondent in the application for ex parte preservation orders dated 30 April, 2026, adding that she never engaged in any business of selling phones and no evidence of the same was provided.
23. She further averred that she operates legitimate businesses of selling vegetables, groceries and cereals in Stalls number 150 and 78 allocated to her by the County Government of Homa Bay as well as stall number A043 in Homa Bay Municipal Market where she sells cereals and fish, and that proceeds thereof deposited in the said bank Account.
24. She reiterated that the allegations that she engages in phone repairing business along Jogoo road is false and misled the Court in obtaining the preservation orders, stating that her business has been negatively affected by the freezing orders as she is unable to restock goods and is on the verge of collapse. She further averred that she was a mother of four children who are in high school and depend on her.
25. The 3 rd Applicant stated that the Respondent has placed a caveat/restriction against her motor vehicle registration number KCD 371S Toyota Noah despite there being no court order authorizing such, rendering it impossible for her to use the same as security for a loan. She argued that the preservation orders have deprived her of reasonable living expenses exposing her and her children to extreme hardship within the meaning of section 89(1)(a)(i) of POCAMLA. She thus urged the Court to lift and/or vary the preservation orders therein.
Respondent’s Case
26. The three applications were opposed by the Respondent who relied on the Replying Affidavit sworn by Zachariah Lekishon on the 2 nd of July, 2026 in respect of the 1 st and 2 nd Applicants’ Applications and the Replying Affidavit dated 21 st July, 2026 in respect of the 3 rd Applicant’s application.
27. It was the Respondent’s case that pursuant to Sections 81, 82, 86 and 87 of POCAMLA, the Agency is mandated to move the court ex parte for orders prohibiting any person from dealing with any property or asset provided there are reasonable grounds to believe that such property/assets are proceeds of crime.
28. That on 30 April 2026, the Agency filed an application for preservation orders vide Miscellaneous Application No. E020 of 2026 which was duly allowed and ex parte orders preservation orders granted on 4 th May 2026. It went on to state that the the three applicants have not sufficiently demonstrated any reasonable evidence to warrant the setting aside or varying of the preservation orders.
29. It was contended that the applications do not meet the threshold set out in section 89 of POCAMLA for setting aside the ex parte orders as they have not proved that they will suffer hardship or that the hardship they will suffer outweighs the risk that the funds subject to the preservation order will be destroyed, lost, damaged, concealed or transferred.
30. The Respondent further averred that it was still within the 90-day period for filing forfeiture proceedings as provided in Section 90 and 92 of POCAMLA which process is being undertaken.
31. The Respondent maintained that the funds in issue are presumed to be proceeds of crime which the applicant’s are not entitled to utilize pending filing, hearing and determination of the intended forfeiture proceedings. Further, the Respondent averred that varying or discharging the prohibition orders will render the intended forfeiture proceedings nugatory.
Submissions by the Parties
32. The matter was disposed by way written submissions which were duly filed and relied on by the Parties.
33. In his submissions dated 6 July, 2026, the 1 st Applicant identified four issues for determination. Firstly, on whether the ex parte preservation orders should be set aside for having been obtained through material disclose and abuse of the court process, it was submitted that the Respondent having failed to disclose that the application dated 30 April 2026 was grounded upon information based on suspicion, was not entitled to the orders granted. Reliance was placed on the cases of R v Kensington Income Tax Commissioners, ex parte Princess Edmond de Polignac [1917] 1 KB 486 and Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 others, Civil Appeal No. 210 of 1997 [1998] eKLR.
34. The Applicant further submitted that the ex parte orders were obtained without notice or his participation in breach of Article 47 and 50 of the Constitution. The case of Onyango Oloo v Attorney General [1986–1989] EA 456 was cited in support thereof.
35. On the second issue, that is, whether the Agency’s application disclosed reasonable grounds that the funds in question constituted proceeds of crime, it was submitted that the Respondent did not present verifiable facts capable of independent evaluation that raise reasonable grounds that the property in question was a proceed of crime. The case of R (Director of the Assets Recovery Agency) v Green & others [2005] EWHC 3168 (Admin) was cited in support thereof. Further, it was argued that the Respondent’s application did disclose a nexus between the funds inn the account and a crime as set out by the supreme court decsion in the case of Ethics and Anti-Corruption Commission & another vs Aboo (Petition E044 of 2024) [2026] KESC 44 (KLR).
36. Thirdly, on whether section 89 of POCAMLA or Order 45 of the Civil Procedure Rules bars the instant application, it was submitted that the application was not merely seeking review or variation of the orders on account of hardship but rather it seeks to set aside the ex parte orders which ought not to have been issued on account of material non-disclosure and derogation of the right to fair trial. It was further argued that the invocation of Order 45 was misplaced since it does not apply to this case. Reliance was placed on the court’s decsion in Gulamhusein Mulla Jivanji & Another v Ebrahim Mulla Jevanji & Another (1929-30) 12 KLR 4.
37. On the forth issue, whether the intended forfeiture application can sustain the Orders herein, the Applicant contended that no forfeiture application has been filed or exists and that Section 84 of POCAMLA cited by the Respondent would only apply where such an application is pending. The court was urged to allow the application with costs.
38. The 2 nd Applicant in his submissions dated 10 July 2026, identified five issues for determination. First, whether the ex parte orders were erroneously made against him and if the instant application meets the requirements of Section 89 of POCAMLA and Order 45 Rule 1 of the Civil Procedure Rules , he submitted that whereas Section 82 (1) and 2(2) of POCAMLA allows the Agency to seek ex parte preservation orders, a court can only issue the said orders upon presentation of evidence that the property concerned is a proceed of crime or instrumentality of crime, which was not provided in this case.
39. He argued that the absence of any averment linking the 2 nd Applicant account to the Respondent’s investigations, amounts to a mistake and an error apparent on the face of the record to warrant invocation of Order 45 Rule 1. The case of Assets Recovery Agency v Odiero [2023] KEHC 25648 (KLR) was cited in support thereof. He took the view that Section 89 of POCAMLA would only can into play where the preservation orders were properly obtained which is not the case herein.
40. The applicant further submitted that despite the fact that the ex parte orders had been erroneously issued, he has demonstrated hardship contemplated under Section 89 (1) (a) (i) and (ii) of POCAMLA to warrant variation of the orders. Reliance was placed in the case of Assets Recovery Agency v Lilian Wanja Muthoni t/a Sahara Consultants & 5 Others [2019] eKLR where the court defined reasonable living expenses to mean expenses a person necessarily incurs in achieving a reasonable standard of living.
41. On the second issue, whether the application for preservation orders is barred for being res judicata and/or an abuse of the court process, it was submitted that the issues in this case being directly in issue in Chief Magistrates Court Miscellaneous Criminal Application No. 1740 of 2025 were heard and determined on 30 April 2025 by the said court and hence the subsequent application by the Respondent before this court offends Section 7 of the Civil Procedure Act. The case of IEBC vs Maina Kiai and 5 others (2017) eKLR was cited in support thereof.He also took issue with the manner and timing of the application before this court, which he deemed constituted an abuse of the court process.
42. As regards the third issue, whether Section 84 of POCAMLA bars the discharge or variation of a preservation order in the circumstances of this case, he argued that the section could only apply to a validly obtained preservation order which was not the case herein,contending that the Respondent has not filed a forfeiture application despite two months elapsing since issuance of the preservation orders which contravenes the spirit of Section 90 that contemplates the filing and disposal of forfeiture proceedings expeditiously.
43. On the fourth issue, whether the continued restriction violate the right to property under Article 40 of the Constitution , he took the view that whereas the ex parte procedure for preservation orders under Section 82 of POCAMLA is not unconstitutional, the invocation and grant of the ex parte orders without any reasonable grounds as the case herein amounts to arbitrary deprivation of property and offends the right to property under Article 40 of the Constitution , whose remedy lies in Section 89 of POCAMLA.
44. On the fifth issue, whether the applicant has demonstrated undue hardship as contemplated in Section 89 of POCAMLA, he submitted that he has discharged burden by demonstrating hardship which has compromised his business, chama pay outs and affected his ability to meet daily living and business expenses, contending that the hardship outweighs the risk of dissipation, loss or concealment that the preservation order was designed to guard against. The court was urged to allow the application.
45. The 3 rd Applicant in her written submissions dated 22 July 2026, identified four issues for determination. First, whether she has established sufficient grounds to justify the variation, discharge or rescission of preservation orders under Section 89 of POCAMLA, she submitted that she has placed uncontested evidence before court showing that she is a trader carrying out lawful business activities within Homabay County, that all proceeds arising from the said businesses were deposited into the preserved accounts and the account constitutes her only operational bank account, thereby discharging the burden set out in Section 89 of the Act. The case of Assets Recovery Agency vs Pamela aboo (2018) eKLR was cited in support.
46. On the second issue, whether she has demonstrated deprivation of reasonable living expenses and undue hardship, she argued that the applicant has demonstrated that she is a single mother responsible for four school going children, that the account constitutes her only source of income, her business has been negatively affected and she is unable to access credit thereby entitled to variation of the orders under Section 89 of the Act.
47. On the third issue, whether the Agency has demonstrated the risk contemplated under Section 89 of POCAMLA,contended that the Respondent bore the burden of demonstrating the existence of such a risk which it has failed to do. She went on to state argued no evidence of attempted withdrawals, transfers or movement of assets by the 3 rd Applicant has been presented before the court to justify the allegation that she has taken steps to frustrate the objectives of the preservation. The case of Assets Recovery Agency vs Quorantum Ltd & 2 others (2018) eKLR where it was held that preservation proceedings should not be conflated with forfeiture proceedings was cited.
48. As regards the fourth issue, whether the restriction placed against motor vehicle Reg. No. KCD 371S is lawful,she submitted that there is no court order that has been issued authorizing the imposition of the said restriction and hence the restriction is unlawful and its continued existence is unjustified. The court was urged to allow the application as prayed.
49. The Respondent relied on its submissions dated 2 nd July 2026 where it identified two issues for determination. First, whether the Applicants applications meet the threshold of Section 89 of POCAMLA and Order 45 of the Civil Procedure Rules, it was submitted that the power of the court to vary, review or rescind its order is provided for under Section 89 of POCAMLA and Order 45 Rule 1 of the Civil Procedure Rules. That the applicants have not established the legal requirements to warrant the orders sought since they have not proved that they have been deprived of reasonable living expenses, that they suffered hardship, that they hardship outweighs the risk of preserving the subject property, that there exists a mistake or an error apparent on the face of the record or any other sufficient cause.
50. It was argued that a party seeking variation or review of a court order issued under Section 81 and 82 of POCAMLA must bring themselves within the confines of Section 89 of the Act as well as demonstrate that they are aggrieved by the said order. The case of Gulamhusein Mulla Jivanji & Anor vs Ebrahim Mulla Jevanji & Anor (1929-30) 12 KLR 41 was cited. It was thus submitted that the applicants have not presented new evidence or demonstrated that they relied on the funds in issue to provide for the reasonable living expenses to entitle them to orders sought.
51. The Respondent submitted that the funds in the accounts are presumed to be proceeds of crime which is obtained through money laundering which the applicants are not entitled to. It argued that the determination of whether the funds were lawfully acquired can not be made at this stage and should await hearing of the intended forfeiture application. It argued that varying or rescinding the preservation orders will render the intended forfeiture an academic exercise thereby defeating the very intent and purpose of POCAMLA
52. On the Second issue, whether the preservation orders were merited, it was submitted that Section 81 and 82 of POCAMLA mandates the Agency to apply ex parte to court for issuance of preservation orders where there exists reasonable grounds to believe that such property is proceeds of crime. That the Agency at that stage is required to make a prima facie case to the satisfaction of the court that there is evidence which, if accepted will establish the Agency’s belief based on reasonable grounds that the funds sought to be preserved are proceeds of crime or proceeds of unlawful activities directly or indirectly owned by the Applicants.
53. It was contended that the Agency placed material before court to show that the applicants are suspected to have acquired funds under preservation through a money laundering scheme meant to disguise the source of funds which are proceeds of crime, arguing that the Applicants have devised a complex strategy for concealing and disguising their proceeds of crime thereby violating Sections 3 and 4 of POCAMLA. The Respondent maintains that the preservation orders were properly obtained and urged the court to dismiss the applications.
Analysis and determination
54. Having considered the three Applications, the responses thereto, the rival submissions and the law, the court narrows down the issues for determination are as follows;
i. Whether the preservation orders issued by this Court on 4 th May 2026 were merited.
ii. Whether the court should vary, rescind and/or set aside the preservation orders.
iii. whether the restriction placed against motor vehicle Reg. No. KCD 371S is lawful.
i. Whether the preservation orders issued by this Court on 4 th May 2026 were merited.
55. The Applicants challenged the preservation orders of three grounds; first, that the procedure adopted by the Respondent in moving the court ex parte and without notice to the Applicants, violated of Articles 40, 47 and 50 of the Constitution in as far as it denied them an opportunity to be heard and was based on material non-disclosure of facts. Secondly, that the application is res judicata in view of the proceedings and Orders by the Chief Magistrate’s Court Case No. E1740 of 2025 that disposed off this matter with finality, and thirdly that the orders were unmerited since the requirements set out under Section 82 of POCAMLA were not met.
56. It was argued that the Originating Motion application was founded on mere suspicions without disclosure of the source of information or evidence of crime or a nexus between the funds in the accounts and the commission of a crime. Reliance was placed on the Supreme Court decision in the case of EACC vs Pamela Aboo (Supra)
57. The impugned orders were issued ex parte on 4 th May 2026 pursuant to an Originating Motion dated 30 th April 2026 filed by the Respondent. The said orders were issued in accordance with Section 82 (1) and (2) of the POCAMLA, which provides;
“82 (1) The Agency Director may, by way of an exparte application apply to the court for an order prohibiting any person, subject to such conditions and exceptions as may be specified in the order, from dealing in any manner with the property.
(2) The court shall make an order under Subsection (1) if there are reasonable grounds to believe that the property concerned-
(a) has been used or is intended for use in the commission of an offence; or
(b) is proceeds of crime.”
58. Section 83 provide for gazettement of the preservation orders pursuant to Section 84 of POCAMLA. Upon gazettement of preservation orders, the same are bound to expire after 90 days unless there is an application for a forfeiture order pending before the court in
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1. This consolidated ruling determines three distinct applications filed by way of Notice of Motion by the 1 st , 2 nd and 3 rd Applicants herein. All three applications challenge the ex parte preservation orders issued by this Court on 4 th May 2026 under Section 82 of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA). The applications seek the discharge, lifting, variation and/or rescission of the said orders.
2. The Respondent herein, Assets Recovery Agency, opposes all three applications through its respective Replying Affidavits, asserting that the statutory thresholds for variation or rescission of a preservation order set out under Section 89 of POCAMLA have not been met.
3. For proper order and avoidance of doubt, the three applicants who were the 1 st , 2 nd and 3 rd Respondents in the application for preservation orders and who have retained the same identity in their instant applications, shall be referred to as the 1 st , 2 nd and 3 rd Applicants herein, whereas the Asset Recovery Agency shall be referred to as the Agency or Respondent. The court will determine the three applications sequentially.
Applicants Case
4. By a Notice of Motion dated 25 th May 2026 filed under certificate of urgency, and brought under Sections 82, 84 and 92 of POCAMLA, Order 1 Rule 10, Order 10 Rule 11, Order 40 Rules 1 and 9 and Order 51 Rule 1 of the Civil Procedure Rules, Section 1A and 1B of the Civil Procedure Act, the 1 st Applicant the seeks for the following orders;
i. Spent.
ii. That the ex parte orders of this Honourable Court restricting, freezing, or limiting access to the Bank accounts of Syllus Musila Kivyatu held at Cooperative Bank Ltd Account Nos. 01108103184700, 01101031847004 and 01101031847002 and Equity Bank Ltd Account No. 0950173195576 be set aside, vacated and discharged forthwith.
iii. The Cooperative Bank and Equity Bank Ltd be directed to immediately lift all restrictions of the aforesaid accounts and restore the applicant’s full and unencumbered access thereto.
iv. That the Asset Recovery Agency be ordered to show cause why these proceedings should not be struck out as an abuse of the court process.
v. That the Assets Recovery Agency be ordered to pay costs of and incidental to this application.
vi. That the honourable court makes such further or other orders as it deems just.
5. The application is premised on the grounds set out in the Motion and in the Supporting Affidavit of Syllus Musila Kivyatu sworn on 25 th May 2026 as well as the Supplementary affidavit sworn on 6 th July 2026. The 1 st Applicant challenged the issuance of the ex parte preservation orders which he termed as unprocedural, illegal and deprived him the right to fair administrative action and fair hearing guaranteed under Article 47 and 50 of the Constitution. He further stated that the entire application for preservation orders by the Respondent was misconceived and incompetent for having been grounded upon laws that did not permit issuance of such orders, that the evidence relied upon by the Respondent was insufficient to justify issuance of the orders, and that no reasonable grounds were made to warrant invocation of Section 82 of POCAMLA.
6. He further averred that he was the lawful and beneficial owner of Account Nos. 01108103184700, 01101031847004 and 01101031847002 held at Cooperative Bank of Kenya and Account No. 0950173195576 held at Equity Bank ltd, stating that he was denied justice by the closure of the file after ex parte orders were issued without his notice, participation, knowledge or involvement in the hearing.
7. He contended that the Respondent misled the court into issuance of the orders arguing that he was not and has never been connected to, associated with the 2 nd and 3 rd Applicants herein. He stated that he was not served with the impugned orders and only came to learn about their existence when he went to transact in his bank and was informed that the accounts have been frozen.
8. He challenged the basis of the information relied on by Zacharia Lekishon, the investigation officer from the Respondent, Asset Recovery Agency, contending that it was bare, unparticularized and amounted to hearsay with no probative value for failing to disclose the source of the information, failing to establish a connection between the transactions and any specific criminal offence or giving particulars of transactions said to be suspicious.
9. He denied that his accounts have been used as conduits of money laundering stating instead that all funds therein were derived from him lawful income from selling of second-hand motor vehicle accessories as well as brokering the sale of motor vehicles.
10. He stated that there was no evidence to justify the investigation into his accounts and that the use of investigative access orders to freeze and restrict his accounts without satisfying the threshold set out in Section 82 of POCAMLA w as unlawful and intended to circumvent the legal and procedural requirements set out in the said law. He took the view that since the Magistrate Court in Anti-Corruption Criminal Case No. E1740 of 2025 had discharged the earlier orders that restricted access to his accounts on 30 April 2026, there was basis for the current restriction by the Respondent.
11. He averred that the restriction orders have caused severe financial hardship and irreparable harm since he is unable to meet his daily living expenses, pay school fees, rent, mortgage, medical expenses, business and financial obligations to third parties resulting in losses and damage the his business, accumulation of interest, penalties and reputation damage.
12. He further averred that an application for preservation orders under Section 81 and 82 of POCAMLA must be based on the existence of reasonable founds founded on verifiable facts, utmost good faith and full disclosure of all material facts include adverse facts against the Agency such as the existence and fate of prior proceedings before the Magistrate’s Court. He contended that the Respondent concealed material facts and was not entitled to the ex parte orders.
13. He reiterated that he not just seeking variation of the ex parte preservation orders of grounds of hardship under Section 89 of POCAMLA but that he is asking the court to set aside the entire orders which he deems to be a nullity for having been obtained through material non-disclosure, being an abuse of the court process, having been obtained on the basis of insufficient facts and for being a violation of Articles 40, 47 and 50 of the Constitution.
14. He also averred that based on legal principles set out by the Supreme Court in the case of EACC vs Pamela Aboo, SC petition No. E044 of 2024 (consolidated with Petition No. E046 of 2024) , the Respondent did not prove any nexus between the Applicant and a crime in the entire chain of events that triggered the instant proceedings.
15. The 2 nd Applicant vide a Notice of Motion Application dated 3 June 2026 filed under Certificate of Urgency and brought under Section 118, 118A, 119 and 121 (10 of the Criminal Procedure Code , Section 180 (1) and (2) of the Evidence Act , Section 53A, 105, 106 and 107 of POCAMLA sught for the following orders;
i. Spent.
ii. THAT the orders issued on 4th May, 2026 closing this file be set aside and the file be reopened.
iii. THAT this Honourable Court be pleased to set aside the orders issued on 4th May 2026 in respect of account number 01108108848800 held in the name of ISAAC SHAMORA ALIGULA at Cooperative Bank Limited.
iv. THAT this Honourable Court be pleased to lift and/or discharge the restriction/preservation order issued on 4th May 2026 in respect of account number 01108108848800 held in the name of ISAAC SHAMORA ALIGULA at Cooperative Bank of Kenya Limited.
v. THAT this Honourable Court be pleased to order the immediate unfreezing and/or de- restriction of account number 01108108848800 held in the name of ISAAC SHAMORA ALIGULA at Cooperative Bank of Kenya Limited, to enable the Interested Party to conduct her/his legitimate financial transactions.
vi. THAT the costs of this application be in the cause.
vii. THAT this Honourable Court be pleased to grant any other or further relief as it may deem just and fit in the circumstances.
16. The application is based on the grounds on the face of the application and supported by the Affidavit of Isaac Shamora Aligula sworn on 3 rd June 2026 as well as the Further Affidavit by the same deponent sworn on the 10 th July 2026.
17. In his application, the 2 nd Applicant averred that his account number 01108108848800 has been restricted vide the orders of this Court dated 4 th May, 2026 which orders were obtained without notice and that the continued restriction is without any justification, allegation or nexus to the investigations.He argued that no link has been established between his bank account and the alleged offence of money laundering or any other criminal activity hence the continues restriction serves no legitimate investigative powers.
18. The deposed that similar orders had been sought in Misc Criminal Application no. E1740 of 2025 in which restriction orders were issued and upon conclusion of investigations, they were vacated and the file closed. He thus took the view that in seeking substantially similar orders arising from the same subject matter is an abuse of Court process, amounts to double jeopardy and offends the doctrine of res-judicata.
19. He stated that the funds in his account constituted legitimate income derived from his business, welfare group contributions and payouts and personal financial dealings, and that the restriction continues to prejudice him since he is unable to meet his day to day financial and business obligations or conduct legitimate transactions.
20. The 3 rd Applicant filed a Notice of Motion Application dated 29 June, 2026 under Certificate of Urgency pursuant to Article 47, 49 and 50 of the Constitution , Sections 89 of POCAMLA, Order 51 Rule 1 of the Civil Procedure Rules , seeking the following orders;
a) Spent
b) THAT Pending the hearing and determination of this Application, this Honourable Court be pleased to permit the Applicant limited access and operation of Account Number 1292745444 at KCB Bank Kenya Limited for purposes of payment of school fees, restocking business premises, settlement of supplier obligations and meeting reasonable living expenses.
c) THAT this Honourable Court be pleased to vary, discharge and/or rescind the preservation orders issued on 4th May 2026 preserving the sum of Kshs. 736,910/= held in Account Number 1292745444 at KCB Bank Kenya Limited pursuant to Section 89(1)(a) of the Proceeds of Crime and Anti-Money Laundering Act.
d) THAT this Honourable Court be pleased to order the removal and/or lifting of the caveat and/or restriction unlawfully placed by the Respondent against Motor Vehicle Registration Number KCD 371S Toyota Noah.
e) THAT this Honourable Court be pleased to direct KCB Bank Kenya Limited to forthwith lift any freeze, restriction or limitation imposed on Account Number 1292745444 and allow the Applicant unrestricted access and operation thereof.
f) THAT the costs of this Application be provided for.
g) THAT this Honourable Court be pleased to grant such other and/or further orders as it may deem fit and just in the circumstances.
21. The application is based on the grounds on the face of it and supported by the affidavit of Adhiambo Mourine Abonyo sworn on 29 June 2026 as well as the supplementary affidavit by the same deponent sworn on the 22 June 2026.
22. The 3 rd applicant averred that the delay in filing the application was occasioned by lack of money for legal fees. She stated that the 1 st and 2 nd Applicants were unknown to her as alleged in the by the Respondent in the application for ex parte preservation orders dated 30 April, 2026, adding that she never engaged in any business of selling phones and no evidence of the same was provided.
23. She further averred that she operates legitimate businesses of selling vegetables, groceries and cereals in Stalls number 150 and 78 allocated to her by the County Government of Homa Bay as well as stall number A043 in Homa Bay Municipal Market where she sells cereals and fish, and that proceeds thereof deposited in the said bank Account.
24. She reiterated that the allegations that she engages in phone repairing business along Jogoo road is false and misled the Court in obtaining the preservation orders, stating that her business has been negatively affected by the freezing orders as she is unable to restock goods and is on the verge of collapse. She further averred that she was a mother of four children who are in high school and depend on her.
25. The 3 rd Applicant stated that the Respondent has placed a caveat/restriction against her motor vehicle registration number KCD 371S Toyota Noah despite there being no court order authorizing such, rendering it impossible for her to use the same as security for a loan. She argued that the preservation orders have deprived her of reasonable living expenses exposing her and her children to extreme hardship within the meaning of section 89(1)(a)(i) of POCAMLA. She thus urged the Court to lift and/or vary the preservation orders therein.
Respondent’s Case
26. The three applications were opposed by the Respondent who relied on the Replying Affidavit sworn by Zachariah Lekishon on the 2 nd of July, 2026 in respect of the 1 st and 2 nd Applicants’ Applications and the Replying Affidavit dated 21 st July, 2026 in respect of the 3 rd Applicant’s application.
27. It was the Respondent’s case that pursuant to Sections 81, 82, 86 and 87 of POCAMLA, the Agency is mandated to move the court ex parte for orders prohibiting any person from dealing with any property or asset provided there are reasonable grounds to believe that such property/assets are proceeds of crime.
28. That on 30 April 2026, the Agency filed an application for preservation orders vide Miscellaneous Application No. E020 of 2026 which was duly allowed and ex parte orders preservation orders granted on 4 th May 2026. It went on to state that the the three applicants have not sufficiently demonstrated any reasonable evidence to warrant the setting aside or varying of the preservation orders.
29. It was contended that the applications do not meet the threshold set out in section 89 of POCAMLA for setting aside the ex parte orders as they have not proved that they will suffer hardship or that the hardship they will suffer outweighs the risk that the funds subject to the preservation order will be destroyed, lost, damaged, concealed or transferred.
30. The Respondent further averred that it was still within the 90-day period for filing forfeiture proceedings as provided in Section 90 and 92 of POCAMLA which process is being undertaken.
31. The Respondent maintained that the funds in issue are presumed to be proceeds of crime which the applicant’s are not entitled to utilize pending filing, hearing and determination of the intended forfeiture proceedings. Further, the Respondent averred that varying or discharging the prohibition orders will render the intended forfeiture proceedings nugatory.
Submissions by the Parties
32. The matter was disposed by way written submissions which were duly filed and relied on by the Parties.
33. In his submissions dated 6 July, 2026, the 1 st Applicant identified four issues for determination. Firstly, on whether the ex parte preservation orders should be set aside for having been obtained through material disclose and abuse of the court process, it was submitted that the Respondent having failed to disclose that the application dated 30 April 2026 was grounded upon information based on suspicion, was not entitled to the orders granted. Reliance was placed on the cases of R v Kensington Income Tax Commissioners, ex parte Princess Edmond de Polignac [1917] 1 KB 486 and Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 others, Civil Appeal No. 210 of 1997 [1998] eKLR.
34. The Applicant further submitted that the ex parte orders were obtained without notice or his participation in breach of Article 47 and 50 of the Constitution. The case of Onyango Oloo v Attorney General [1986–1989] EA 456 was cited in support thereof.
35. On the second issue, that is, whether the Agency’s application disclosed reasonable grounds that the funds in question constituted proceeds of crime, it was submitted that the Respondent did not present verifiable facts capable of independent evaluation that raise reasonable grounds that the property in question was a proceed of crime. The case of R (Director of the Assets Recovery Agency) v Green & others [2005] EWHC 3168 (Admin) was cited in support thereof. Further, it was argued that the Respondent’s application did disclose a nexus between the funds inn the account and a crime as set out by the supreme court decsion in the case of Ethics and Anti-Corruption Commission & another vs Aboo (Petition E044 of 2024) [2026] KESC 44 (KLR).
36. Thirdly, on whether section 89 of POCAMLA or Order 45 of the Civil Procedure Rules bars the instant application, it was submitted that the application was not merely seeking review or variation of the orders on account of hardship but rather it seeks to set aside the ex parte orders which ought not to have been issued on account of material non-disclosure and derogation of the right to fair trial. It was further argued that the invocation of Order 45 was misplaced since it does not apply to this case. Reliance was placed on the court’s decsion in Gulamhusein Mulla Jivanji & Another v Ebrahim Mulla Jevanji & Another (1929-30) 12 KLR 4.
37. On the forth issue, whether the intended forfeiture application can sustain the Orders herein, the Applicant contended that no forfeiture application has been filed or exists and that Section 84 of POCAMLA cited by the Respondent would only apply where such an application is pending. The court was urged to allow the application with costs.
38. The 2 nd Applicant in his submissions dated 10 July 2026, identified five issues for determination. First, whether the ex parte orders were erroneously made against him and if the instant application meets the requirements of Section 89 of POCAMLA and Order 45 Rule 1 of the Civil Procedure Rules , he submitted that whereas Section 82 (1) and 2(2) of POCAMLA allows the Agency to seek ex parte preservation orders, a court can only issue the said orders upon presentation of evidence that the property concerned is a proceed of crime or instrumentality of crime, which was not provided in this case.
39. He argued that the absence of any averment linking the 2 nd Applicant account to the Respondent’s investigations, amounts to a mistake and an error apparent on the face of the record to warrant invocation of Order 45 Rule 1. The case of Assets Recovery Agency v Odiero [2023] KEHC 25648 (KLR) was cited in support thereof. He took the view that Section 89 of POCAMLA would only can into play where the preservation orders were properly obtained which is not the case herein.
40. The applicant further submitted that despite the fact that the ex parte orders had been erroneously issued, he has demonstrated hardship contemplated under Section 89 (1) (a) (i) and (ii) of POCAMLA to warrant variation of the orders. Reliance was placed in the case of Assets Recovery Agency v Lilian Wanja Muthoni t/a Sahara Consultants & 5 Others [2019] eKLR where the court defined reasonable living expenses to mean expenses a person necessarily incurs in achieving a reasonable standard of living.
41. On the second issue, whether the application for preservation orders is barred for being res judicata and/or an abuse of the court process, it was submitted that the issues in this case being directly in issue in Chief Magistrates Court Miscellaneous Criminal Application No. 1740 of 2025 were heard and determined on 30 April 2025 by the said court and hence the subsequent application by the Respondent before this court offends Section 7 of the Civil Procedure Act. The case of IEBC vs Maina Kiai and 5 others (2017) eKLR was cited in support thereof.He also took issue with the manner and timing of the application before this court, which he deemed constituted an abuse of the court process.
42. As regards the third issue, whether Section 84 of POCAMLA bars the discharge or variation of a preservation order in the circumstances of this case, he argued that the section could only apply to a validly obtained preservation order which was not the case herein,contending that the Respondent has not filed a forfeiture application despite two months elapsing since issuance of the preservation orders which contravenes the spirit of Section 90 that contemplates the filing and disposal of forfeiture proceedings expeditiously.
43. On the fourth issue, whether the continued restriction violate the right to property under Article 40 of the Constitution , he took the view that whereas the ex parte procedure for preservation orders under Section 82 of POCAMLA is not unconstitutional, the invocation and grant of the ex parte orders without any reasonable grounds as the case herein amounts to arbitrary deprivation of property and offends the right to property under Article 40 of the Constitution , whose remedy lies in Section 89 of POCAMLA.
44. On the fifth issue, whether the applicant has demonstrated undue hardship as contemplated in Section 89 of POCAMLA, he submitted that he has discharged burden by demonstrating hardship which has compromised his business, chama pay outs and affected his ability to meet daily living and business expenses, contending that the hardship outweighs the risk of dissipation, loss or concealment that the preservation order was designed to guard against. The court was urged to allow the application.
45. The 3 rd Applicant in her written submissions dated 22 July 2026, identified four issues for determination. First, whether she has established sufficient grounds to justify the variation, discharge or rescission of preservation orders under Section 89 of POCAMLA, she submitted that she has placed uncontested evidence before court showing that she is a trader carrying out lawful business activities within Homabay County, that all proceeds arising from the said businesses were deposited into the preserved accounts and the account constitutes her only operational bank account, thereby discharging the burden set out in Section 89 of the Act. The case of Assets Recovery Agency vs Pamela aboo (2018) eKLR was cited in support.
46. On the second issue, whether she has demonstrated deprivation of reasonable living expenses and undue hardship, she argued that the applicant has demonstrated that she is a single mother responsible for four school going children, that the account constitutes her only source of income, her business has been negatively affected and she is unable to access credit thereby entitled to variation of the orders under Section 89 of the Act.
47. On the third issue, whether the Agency has demonstrated the risk contemplated under Section 89 of POCAMLA,contended that the Respondent bore the burden of demonstrating the existence of such a risk which it has failed to do. She went on to state argued no evidence of attempted withdrawals, transfers or movement of assets by the 3 rd Applicant has been presented before the court to justify the allegation that she has taken steps to frustrate the objectives of the preservation. The case of Assets Recovery Agency vs Quorantum Ltd & 2 others (2018) eKLR where it was held that preservation proceedings should not be conflated with forfeiture proceedings was cited.
48. As regards the fourth issue, whether the restriction placed against motor vehicle Reg. No. KCD 371S is lawful,she submitted that there is no court order that has been issued authorizing the imposition of the said restriction and hence the restriction is unlawful and its continued existence is unjustified. The court was urged to allow the application as prayed.
49. The Respondent relied on its submissions dated 2 nd July 2026 where it identified two issues for determination. First, whether the Applicants applications meet the threshold of Section 89 of POCAMLA and Order 45 of the Civil Procedure Rules, it was submitted that the power of the court to vary, review or rescind its order is provided for under Section 89 of POCAMLA and Order 45 Rule 1 of the Civil Procedure Rules. That the applicants have not established the legal requirements to warrant the orders sought since they have not proved that they have been deprived of reasonable living expenses, that they suffered hardship, that they hardship outweighs the risk of preserving the subject property, that there exists a mistake or an error apparent on the face of the record or any other sufficient cause.
50. It was argued that a party seeking variation or review of a court order issued under Section 81 and 82 of POCAMLA must bring themselves within the confines of Section 89 of the Act as well as demonstrate that they are aggrieved by the said order. The case of Gulamhusein Mulla Jivanji & Anor vs Ebrahim Mulla Jevanji & Anor (1929-30) 12 KLR 41 was cited. It was thus submitted that the applicants have not presented new evidence or demonstrated that they relied on the funds in issue to provide for the reasonable living expenses to entitle them to orders sought.
51. The Respondent submitted that the funds in the accounts are presumed to be proceeds of crime which is obtained through money laundering which the applicants are not entitled to. It argued that the determination of whether the funds were lawfully acquired can not be made at this stage and should await hearing of the intended forfeiture application. It argued that varying or rescinding the preservation orders will render the intended forfeiture an academic exercise thereby defeating the very intent and purpose of POCAMLA
52. On the Second issue, whether the preservation orders were merited, it was submitted that Section 81 and 82 of POCAMLA mandates the Agency to apply ex parte to court for issuance of preservation orders where there exists reasonable grounds to believe that such property is proceeds of crime. That the Agency at that stage is required to make a prima facie case to the satisfaction of the court that there is evidence which, if accepted will establish the Agency’s belief based on reasonable grounds that the funds sought to be preserved are proceeds of crime or proceeds of unlawful activities directly or indirectly owned by the Applicants.
53. It was contended that the Agency placed material before court to show that the applicants are suspected to have acquired funds under preservation through a money laundering scheme meant to disguise the source of funds which are proceeds of crime, arguing that the Applicants have devised a complex strategy for concealing and disguising their proceeds of crime thereby violating Sections 3 and 4 of POCAMLA. The Respondent maintains that the preservation orders were properly obtained and urged the court to dismiss the applications.
Analysis and determination
54. Having considered the three Applications, the responses thereto, the rival submissions and the law, the court narrows down the issues for determination are as follows;
i. Whether the preservation orders issued by this Court on 4 th May 2026 were merited.
ii. Whether the court should vary, rescind and/or set aside the preservation orders.
iii. whether the restriction placed against motor vehicle Reg. No. KCD 371S is lawful.
i. Whether the preservation orders issued by this Court on 4 th May 2026 were merited.
55. The Applicants challenged the preservation orders of three grounds; first, that the procedure adopted by the Respondent in moving the court ex parte and without notice to the Applicants, violated of Articles 40, 47 and 50 of the Constitution in as far as it denied them an opportunity to be heard and was based on material non-disclosure of facts. Secondly, that the application is res judicata in view of the proceedings and Orders by the Chief Magistrate’s Court Case No. E1740 of 2025 that disposed off this matter with finality, and thirdly that the orders were unmerited since the requirements set out under Section 82 of POCAMLA were not met.
56. It was argued that the Originating Motion application was founded on mere suspicions without disclosure of the source of information or evidence of crime or a nexus between the funds in the accounts and the commission of a crime. Reliance was placed on the Supreme Court decision in the case of EACC vs Pamela Aboo (Supra)
57. The impugned orders were issued ex parte on 4 th May 2026 pursuant to an Originating Motion dated 30 th April 2026 filed by the Respondent. The said orders were issued in accordance with Section 82 (1) and (2) of the POCAMLA, which provides;
“82 (1) The Agency Director may, by way of an exparte application apply to the court for an order prohibiting any person, subject to such conditions and exceptions as may be specified in the order, from dealing in any manner with the property.
(2) The court shall make an order under Subsection (1) if there are reasonable grounds to believe that the property concerned-
(a) has been used or is intended for use in the commission of an offence; or
(b) is proceeds of crime.”
58. Section 83 provide for gazettement of the preservation orders pursuant to Section 84 of POCAMLA. Upon gazettement of preservation orders, the same are bound to expire after 90 days unless there is an application for a forfeiture order pending before the court in
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