This is a consolidated ruling for two applications. One by the plaintiff dated 16 th December 2024 prays for the following orders;
THAT this application be certified urgent and service thereof upon the defendants/respondents be dispensed with in the first instance.
THAT pending the hearing and determination of this application this Honourable Court be pleased to issue an order of injunction restraining the 1 st defendant/respondent, his agents, servants and/or any other persons from withdrawing, transferring, disposing, wasting or in any other way (howsoever described) dealing with funds held in the bank accounts listed below: -
Bank account number 0840184059257 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Bank account number 012019650027 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Bank account number 0390384299903 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
THAT pending the hearing and determination of this application this Honourable Court be pleased to issue an order of injunction restraining the defendants/respondents, their agents, servants and/or any other persons from selling, transferring, disposing, wasting or in any other way (howsoever described) alienating the following motor vehicles.
Motor vehicle registration number KDD 060P registered in the name of Daniel Munywoki Wambua.
Motor vehicle registration number KCJ 019N registered in the name of Daniel Munywoki Wambua.
Motor vehicle registration number KDJ 898L registered in the name of Judith Vaati Matheka.
Motor vehicle registration number KDA 989T registered in the name of Judith Vaati Matheka.
Motor vehicle registration number KCU 309G registered in the name of Judith Vaati Matheka.
THAT pending the hearing and determination of this suit this Honourable Court be pleased to issue an order of injunction restraining the 1 st defendant/respondent, his agents, servants and/or any other persons from withdrawing, transferring, disposing, wasting, or in any other way (howsoever described) dealing with funds held in the bank accounts listed below.
Bank account number 0840184059257 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Bank account number 012019650027 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Bank account number 0390384299903 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
THAT pending the hearing and determination of this application this Honourable Court be pleased to issue an order of injunction restraining the defendants/respondents, their agents, servants and/or any other persons from selling, transferring, disposing, wasting or in any other way (howsoever described) alienating the following motor vehicles.
Motor vehicle registration number KDD 060P registered in the name of Daniel Munywoki Wambua.
Motor vehicle registration number KCJ 019N registered in the name of Daniel Munywoki Wambua.
Motor vehicle registration number KDJ 898L registered in the name of Judith Vaati Matheka.
Motor vehicle registration number KDA 989T registered in the name of Judith Vaati Matheka.
Motor vehicle registration number KCU 309G registered in the name of Judith Vaati Matheka.
THAT the costs of this application be provided for.
The second application is by the defendants dated 17 th April 2025 which prays that;
THAT this application be certified urgent and service be dispensed with in the first instance.
THAT this Honourable Court be pleased to vary the orders dated and issued on 19 th December, 2024 to enable the applicants meet their statutory tax obligations.
THAT this Honourable Court be pleased to grant the 1 st defendant/applicant limited access to funds amounting to Ksh. 4,419.088/= from his salary account, to wit, bank account no. 0120196520027 held at Equity Bank limited, Tom Mboya branch and from bank account number 0390384299903 (fixed deposit account) held at Equity bank Limited Matuu Branch for the following purpose.
Setlling tax obligations amounting to Kshs. 3,719,088/= payable directly to the Kenya Revenue Authority.
Payment of legal fees in the sum of Ksh. 700,000/= payable directly to the applicant’s advocates on record, to wit, Migos Ogamba & Waud Advocates.
THAT the costs of this application be provided for.
Noting that the defendants’ application seeks to vary interim orders which had not been confirmed to persist until the conclusion of the suit, I hold that the same should be treated as part of the defendant’s opposition to the plaintiff’s application. In that case there is no need of considering the applications separately and the court will take into consideration the prayers in the defendant’s application such that if I find the plaintiff’s application merited, I should consider whether the circumstances of the case justify allowing the defendants to access the amount as prayed in their application.
The plaintiff’s application is supported by affidavits of Julius Simwoto, Gamaliel Kipkirui Kirui and Caren Makau, investigators working with the plaintiff. The deponents aver that the plaintiff got information that the 1 st defendant was receiving kickbacks from companies contracted by the Kenya Rural Roads Authority (hereinafter referred to as ‘KeRRA’) where he worked as an accountant upon which it commenced investigations. It is alleged that the 1 st defendant received monies from directors of Rolling Slope Limited, Keraracon General Services Limited, Nam Rajope Suppliers & Services Limited, Techpride Venture, Dynamic Arcs Limited, Kyenas Company Limited, Mbuvo Contractors Limited, Hive Merchants Limited, Capsol Limited and Quicklink Communications Limited who traded with KeRRA during the period of interest.
It was averred further that the defendants accumulated assets in landed properties, bank deposits, mpesa deposits and motor vehicles all valued at Kshs 124,690,729.06 which were disproportionate to their legitimate and known sources of income. In compliance with Section 26 of the Anti-Corruption and Economic Crimes Act (hereinafter referred to as ACECA), the defendants were served with notices to appear and explain their wealth which they failed to do within the prescribed period.
In his further affidavit, Julius Simwoto avers that other than the assets it has listed, the defendants live luxurious lifestyle which is beyond their known legitime sources of income. He applicant adds that the 1 st defendant was appointed by KeRRA on 18-11-2013 on three months contract which kept on being renewed until 10-02-2018 when it was made annual. He states further that the 2 nd defendant who is married to the 1 st defendant also benefitted from the kickbacks and helped the 1 st defendant in concealing the bribes.
The plaintiff asserts that its investigations revealed that the 1 st defendant held the following accounts;
1151521957 domiciled at Kenya Commercial Bank (hereinafter referred to as ‘the 1 st account’);
0120196520027 domiciled at Equity Bank Kenya Limited (hereinafter referred to as ‘the 2 nd account’);
0840184059257 domiciled at Equity Bank Kenya Limited (hereinafter referred to as ‘the 3 rd account’);
01116872666500 domiciled at Co-operative Bank (hereinafter referred to as ‘the 4 th account’);
01103872666500 domiciled at Co-operative Bank (hereinafter referred to as ‘the 5 th account’);
01245040877100 domiciled at National Bank Limited (hereinafter referred to as ‘the 6 th account’); and
0100004523215 domiciled at Stanbic Bank Kenya Limited (hereinafter referred to as ‘the 7 th account’)
The 2 nd defendant was said to have operated the following accounts;
1170695264 domiciled at Kenya Commercial Bank (hereinafter referred to as ‘the 8 th account’); and
1760184245288 domiciled at Equity Bank Kenya Limited (hereinafter referred to as ‘the 9 th account’).
The plaintiff avers further that upon analysis of the defendants’ records and statements which they lawfully obtained through court warrants, the 1 st defendant’s known legitimate source of income was net salary of 5,436,212.35, gratuity and service of Kshs 1,898,602.50 and daily subsistence and other allowances of Kshs 2,487,785.00. The analysis also showed that the during the period of interest, the accounts received funds as follows;
The 1 st account- Kshs 5,198,525.00;
The 2 nd account- Kshs 12,663,881.35;
The 3 rd account- Kshs 18,710,680.00;
The 4 th account- Kshs 400,000.00;
The 5 th account- Kshs 300,000.00;
The 6 th amount- Kshs 995,066.00;
The 7 th account- Kshs 7,850,000.00;
The 8 th account- Kshs 8,528,180.00;
The 9 th account- Kshs 434,200.00;
The 1 st defendant’s mpesa line number 0729988198- Kshs 23,536,750.00; and
The 2 nd defendant’s mpesa line number 0790801564- Kshs 30,723,835.56.
The plaintiff stated further that during the period of interest, the 1 st defendant acquired properties known as plot number 1148 in Mwengenye Settlement Scheme, an unidentified plot bought from Pilesi Thomas, plot number 2209, 3 acres in unidentified place bought from Mr. & Mrs. Mwania Mulungi, one care bought from Grace Kavili Mwania and Machakos/Matuu/4315.
The defendants also acquired motor vehicles registration numbers KDD 060P, KCW 135M, KCJ 019N, KCH 412J, KDJ 898L, KDA 989T, KCU 309G and KCP 461N from different people on different dates. Some were paid in cash while others are alleged to have paid by some directors of companies trading with KeRRA.
It is averred that the above assets were in variance with returns the defendants made to KRA and the income declaration forms filed with the 1 st defendant’s employer. The plaintiff avers that upon reconciliation, there was unexplained wealth of Kshs 74,584,513.50 in respect of the 1 st defendant while the 2 nd defendant had unexplained wealth of Kshs 50,106,215.56.
In response to the application, the defendants filed a replying affidavit dated 12 th February 2025 which is sworn by the 1 st defendant with authority of the 2 nd defendant. He admits working for KERRA during the period referred to by the plaintiff but denies receiving any kickbacks or bribes as claimed. He goes on to give the contracts awarded to the named companies and states that he never participated in evaluations, awards, management or payments of the projects and asserts that some of the projects were not even in the region where he was stationed. According to him, it is unconceivable why the plaintiff would connect him with the projects he did not participate in.
The 1 st defendant avers that the 3 rd account was opened and operated for purposes of raising money for his dowry payment and the money in the account were contributions by willing persons. He claims that the contributions for the dowry began on 9 th June 2023 up to 5 th August 2023. The contributions were raised through cash, mpesa and deposits into the account either through himself and other persons authorized by him.
The 2 nd defendant added that the search conducted in his house in by the plaintiff’s officers recovered Kshs 700,000.00 which was part of what was raised for the dowry payment. He has exhibited affidavits from some people showing that they contributed money to his dowry payment. He goes on to state that the money deposited by the directors of the named companies were either welfare groups contributions or the dowry payments. The defendant has averred further that the money seen in the 2 nd defendant’s account were from her boutique business and that money by Dynamics Arc Limited was a loan which enabled her to buy motor vehicle registration number KDJ 898J.
He avers that he was never subjected to any disciplinary proceedings by KeRRA or prosecuted for the actions complained of. He adds that in 2013, 2014 and 2015, he earned gross salary of Kshs 1,125,000.00 and imprest of Kshs 219,300.00 which should be considered as his investments before the period of interest. He has conceded that his earnings for the period of interest is as tabulated by the plaintiff safe for Kshs 112,000.00 he earned on 20-12-2021 and a sum of Kshs 2,133,600.00 earned between 2016 and 2020.
For the Kshs 5,198,525.00 seen in the 1 st account between August 2016 and August 2023, the defendants aver that the same were from sales of fruits, vegetables, cereals and bulls and welfare associations contributions. For the 2 nd account, the defendants explain that the sources of funds were his salaries and imprests from August 2016 to August 2023. He proceeds to show that he had some fixed deposits accounts which he linked with his salary account which earned him some interest from the investment.
The defendants further explain that the money moved through the 4 th , 5 th , 6 th , 7 th , 8 th and 9 th accounts were payments from their businesses while that in the 9 th account had deposits meant for the dowry payment. On mpesa lines, the defendants aver that the transactions therein were for personal, social and other welfare contributions including assisting friends and relatives in burials and other social needs.
For the landed property, the 1 st defendant depones that some were purchased using funds from his farm produce while others were bought by his late mother. He actually states that the only one bought by him is plot number 1148 in Mwengenye settlement scheme. He denied being a signatory to the land sales agreements. For the motor vehicles, the 1 st defendant depones that KDD 060P was purchased using a loan from KeRRA, his savings, farm produce and loan from Benjamin Mbithi. He adds that the plaintiff did not give them adequate opportunity to explain their wealth.
In their application to vary the injunctive orders, the defendants seek that they be allowed to access the amount to enable him pay tax liabilities and their advocate’s fees. The defendants aver that the account he seeks to access is for the 1 st defendant’s salary and transfers from his fixed deposits investments and should not therefore be classified as illegitimate money. He has exhibited receipts from Kenya Revenue Authority that demonstrates that the defendants have a tax liability of Kshs 3,719,088.00 and seek the orders to enable them take advantage of tax penalties and fines amnesty which was meant to lapse on 30-06-2025. He adds that he needs Kshs 700,000.00 for his advocates’ legal fees,
I have read the parties’ affidavits, the annexures thereto and submissions. The principals which govern granting of injunctions are well settled. That is, the plaintiff must establish a prima fascie case with a probability of success and that it will suffer irreparable damages if the application is not granted. If the court is still in doubt after considering the first two, it would decide the application on a balance of probabilities.
This matter has been filed under Section 55(2) of ACECA which provides that;
‘The Commission may commence proceedings under this section against a person if-
after an investigation, the Commission is satisfied that the person has unexplained assets; and
the person has, in the course of the exercise by the Commission of its powers of investigation or otherwise, been afforded a reasonable opportunity to explain the disproportion between the assets concerned and his known legitimate sources of income and the Commission is not satisfied that an adequate explanation of that disproportion has been given.’
What comes out of the above Section is that assets of a person which is not properly explained and is not proportional to their legitimate sources of income are liable to forfeiture to the government. The jurisprudence that has emerged from this section of the law and the entire Section 55 of the ACECA is that the holder of the suspected property is expected to give an explanation of how they acquired the said property and if they fail to sufficiently do so the court is justified to forfeit it on the basis that they are proceeds of corruption. In Stanley Mombo Amuti v Kenya Anti-Corruption Commission (2019) KECA 783 (KLR), the Court of Appeal described this concept as follows;
‘Entrenched in the Act is the concept of “unexplained assets” which is a legal innovation to combat the vice of “doubtful source of wealth, money laundering and suspicious corrupt practices.” Underlying the concept is the theme “You fail to satisfactorily explain the lawful source of assets, you forfeit it.”
All the plaintiff is expected to do is to set grounds for reasonable suspicion that the property was obtained through corruption upon which the burden is placed on the property owner to provide evidence in proof that the property was obtained otherwise than by way of corruption. In Ethics & Anti-Corruption Commission v Musyoka & 9 others (2024) KEHC 13560 (KLR), Honourable Justice P.J. Otieno held that;
‘The foundation of forfeiture proceedings of unexplained assets as defined in section 2 of ACEA is one, having assets which are disproportionate to a person’s known source of income and failure by an individual to explain satisfactorily the source of the assets and two, acquisition of the assets at or around the time the person was reasonably suspected of corruption or economic crime.’
In this matter, there is no dispute that the 1 st defendant is an employee of KeRRA a public body as an accountant and that the two defendants are husband and wife. There is also no dispute that the defendants interacted and transacted with several companies which were doing business with the 1 st defendant’s employer. There is evidence which the defendants have admitted that they on different dates and separately received money from directors of Rolling Slope Limited, Keraracon General Services Limited, Nam Rajope Suppliers & Services Limited, Techpride Venture, Dynamic Arcs Limited, Kyenas Company limited, Mbuvo Contractors Limited, Hive Merchants Limited, Capsol Limited and Quicklink Communications Limited which companies traded with the KeRRA.
It is also evident from the breakdown of receipts and bank deposits that the monies received by the 1 st defendant by far outweighed his salaries and allowances. According to the plaintiff, which is not far from the true position, the salaries and allowances for the 1 st defendant within the period of imprest amounted to Kshs 9,822,599,85 whereas the funds received in his bank and mpesa accounts are shown to be in the region of Kshs 59,832,302.50 giving a difference of Kshs 50,009,702.60.
The defendants have explained the discrepancy in income by stating that they were engaged in business of running a boutique, cereals and farming. The defendant has produced permits for an entity known as Style Mark Boutique for 2020, 2021, 2022, and 2023 and some sales receipts for 2017 to 2019. The few receipts do not in my view represent the size of the business that would generate amounts such as what we have in this matter.
There is no explanation where the sales of the bulls the defendants claim to have sold were conducted. It is expected that the trade in livestock and vegetables must be a booming business for it to attract the kind and magnitude of transactions like the ones involved in this matter. The defendants have not produced any books of accounts for the alleged business or even simple receipts from the markets where the trading was conducted.
On the issue of the motor vehicles, the defendants have alleged that they were bought with loans from KeRRA, income from farming and loans from individuals. I have already said enough of the income from the 1 st defendant’s employer. About the loans from the employer and individuals, it obvious that these loans if at all would be repaid using the same income this court has cast doubts on. Further, the claim by the 2 nd defendant that she got loan from a director of one of the companies should interest the court to want to know what business the said company had with the 2 nd defendant. It is not by coincidence that the director of the same companies which traded with KeRRA contributed money towards what is said to have been dowry fundraiser exercise.
The court does not wish to go into deep analysis of the evidence produced by the parties as some details are better left for the court which will deal with the substantive suit. At this stage, this court is not required to go into the deep merits of the matter otherwise it may embarrass the proceedings of the main suit. All that I am required to do is to analyse and interrogate whether there is a prima fascie case established. A prima fascie case need not be that which must succeed but that which discloses a likely breach of a right or legal obligation. In Pius Kipchirchir Kogo v Frank Kimeli Tenai (2018) KEELC 2424 (KLR), it was held that;
‘A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. ’
In my analysis of the evidence and in view of what I have stated above, this court is satisfied that the plaintiff has established a prima fascie case with a probability of cusses under Section 55 of ACECA. It is notable that the parties have produced detailed evidence which this court would have found sufficient to deal with the originating summons, but since the matter belongs to the parties and there could be need for further evidence during prosecution of the substantive suit, the court will have to limit its mind to the notice of motion dated 16 th December 2024.
The second principle I need to consider is whether there is likelihood of irreparable damages in the event the application is not granted. The plaintiff seeks an injunction against dealing with money in the bank accounts and the motor vehicles. This court is alive to the fact that the assets sought to be preserved by the injunction are liquid money and what can be described as fast-moving assets. The plaintiff has brought this suit on behalf of the people of Kenya. The defendants have claimed that the landed properties are not registered to them and actually some of them are not properly identified or described and I doubt that they are registered and, in my opinion, they are of the least in value among the categories sought to be forfeited.
The funds in the bank accounts amount to Kshs 99,068,518.10 against the 1 st defendant’s monthly salary of Kshs 108,852.05. If the application is not granted and the funds in the account are dissipated and the plaintiff succeeds in the suit, it would mean that it will take over 70 years to recover the decretal sum if the salary would be the only known source of income for the defendants.
In view of the above, I am convinced that failure to grant the application may result to spending more public funds in chasing the wind in form of execution proceedings if the assets are disposed of. This would not be a desirable outcome as much the damages can be quantified. I therefore hold that the element of irreparable damages has been satisfied.
The last limb is the balance of convenience. I do not have to go into this since the first two limbs have been satisfied but I may need to mention that the balance would tilt to the advantage of granting the application. This is an application for injunction and not forfeiture. The property in the assets will not be passed to the plaintiff but simply preserved as security for the outcome of the matter. If the suit succeeds, the funds and the motor vehicles with still be available to the defendants.
The final question to answer is whether the application dated 17 th April 2025 is merited. The defendants have claimed that the funds in the accounts are the 1 st defendant’s salary and is not tainted. I have gone through the transactions in the said account and I note that not all the monies therein were salaries. The funds in that account amount to Kshs 12,663,881.35 while the 1 st defendant’s cumulative salary and allowances for the same period is Kshs 9,822,599.85 which means that the deficit of Kshs 2,841,281.50 in that account has not been explained. Further, treating the funds therein as constituting the 1 st defendant’s salaries and allowances would mean that the 1 st defendant saved 100 per cent of all his salaries and allowances which is not practical. This court has no magic of separating money for the salary and that which has come in as unexplained. The same goes for the funds transferred to fixed deposits accounts and later retransferred after maturity.
The alleged tax liability cannot in my view be a reason for releasing the money to the 1 st defendant. Tax obligations are personal and failure to pay the same is an offence. The defendants are asking the court to help them purge an offence which in my view was committed deliberately. A court of law cannot bend backwards for such a party. In any event, the tax goes to the government which is the same claimant in this matter. We cannot take what is claimed by the plaintiff in public interest to offset what is due to the government from the defendants.
The Kshs 700,000.00 claimed to be legal fees is pegged on the defendants’ right to be represented by an advocate under Article 50(2)(g) of the Constitution. Again, this is a private arrangement which the court is not obligated to help the defendants achieve. If the funds were at the end of the trial to be found liable for forfeiture, the court would have shot itself in the foot by releasing funds to an individual at the expense of its duty to protect public funds and interests.
The upshot of the above is that I find no merits in the defendants’ application dated 17 th April 2025 and hold that the plaintiff’s application dated 16 th December 2024 is merited.
In conclusion, I issue the following orders;
Pending the hearing and determination of this suit, the 1 st defendant, his agents, servants and/or any other persons acting on his behalf are restrained from withdrawing, transferring, disposing, wasting, or in any other way dealing with funds held in the following bank accounts;
Bank account number 0840184059257 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Bank account number 012019650027 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Bank account number 0390384299903 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Pending the hearing and determination of this suit, the defendants, their agents, servants and/or any other persons acting on their behalf are restrained from selling, transferring, disposing, wasting or in any other way alienating the following motor vehicles.
Motor vehicle registration number KDD 060P registered in the name of Daniel Munywoki Wambua.
Motor vehicle registration number KCJ 019N registered in the name of Daniel Munywoki Wambua.
Motor vehicle registration number KDJ 898L registered in the name of Judith Vaati Matheka.
Motor vehicle registration number KDA 989T registered in the name of Judith Vaati Matheka.
Motor vehicle registration number KCU 309G registered in the name of Judith Vaati Matheka.
The defendant’s application dated 17 th April 2025 is dismissed.
The costs of the applications shall be in the cause.
Dated, signed and delivered at Nairobi this 31 th day of July 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of Miss Lunyolo for the plaintiff and Miss Akinyi for the defendant.
THAT this application be certified urgent and service thereof upon the defendants/respondents be dispensed with in the first instance.
THAT pending the hearing and determination of this application this Honourable Court be pleased to issue an order of injunction restraining the 1 st defendant/respondent, his agents, servants and/or any other persons from withdrawing, transferring, disposing, wasting or in any other way (howsoever described) dealing with funds held in the bank accounts listed below: -
Bank account number 0840184059257 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Bank account number 012019650027 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Bank account number 0390384299903 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
THAT pending the hearing and determination of this application this Honourable Court be pleased to issue an order of injunction restraining the defendants/respondents, their agents, servants and/or any other persons from selling, transferring, disposing, wasting or in any other way (howsoever described) alienating the following motor vehicles.
Motor vehicle registration number KDD 060P registered in the name of Daniel Munywoki Wambua.
Motor vehicle registration number KCJ 019N registered in the name of Daniel Munywoki Wambua.
Motor vehicle registration number KDJ 898L registered in the name of Judith Vaati Matheka.
Motor vehicle registration number KDA 989T registered in the name of Judith Vaati Matheka.
Motor vehicle registration number KCU 309G registered in the name of Judith Vaati Matheka.
THAT pending the hearing and determination of this suit this Honourable Court be pleased to issue an order of injunction restraining the 1 st defendant/respondent, his agents, servants and/or any other persons from withdrawing, transferring, disposing, wasting, or in any other way (howsoever described) dealing with funds held in the bank accounts listed below.
Bank account number 0840184059257 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Bank account number 012019650027 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Bank account number 0390384299903 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
THAT pending the hearing and determination of this application this Honourable Court be pleased to issue an order of injunction restraining the defendants/respondents, their agents, servants and/or any other persons from selling, transferring, disposing, wasting or in any other way (howsoever described) alienating the following motor vehicles.
Motor vehicle registration number KDD 060P registered in the name of Daniel Munywoki Wambua.
Motor vehicle registration number KCJ 019N registered in the name of Daniel Munywoki Wambua.
Motor vehicle registration number KDJ 898L registered in the name of Judith Vaati Matheka.
Motor vehicle registration number KDA 989T registered in the name of Judith Vaati Matheka.
Motor vehicle registration number KCU 309G registered in the name of Judith Vaati Matheka.
THAT the costs of this application be provided for.
The second application is by the defendants dated 17 th April 2025 which prays that;
THAT this application be certified urgent and service be dispensed with in the first instance.
THAT this Honourable Court be pleased to vary the orders dated and issued on 19 th December, 2024 to enable the applicants meet their statutory tax obligations.
THAT this Honourable Court be pleased to grant the 1 st defendant/applicant limited access to funds amounting to Ksh. 4,419.088/= from his salary account, to wit, bank account no. 0120196520027 held at Equity Bank limited, Tom Mboya branch and from bank account number 0390384299903 (fixed deposit account) held at Equity bank Limited Matuu Branch for the following purpose.
Setlling tax obligations amounting to Kshs. 3,719,088/= payable directly to the Kenya Revenue Authority.
Payment of legal fees in the sum of Ksh. 700,000/= payable directly to the applicant’s advocates on record, to wit, Migos Ogamba & Waud Advocates.
THAT the costs of this application be provided for.
Noting that the defendants’ application seeks to vary interim orders which had not been confirmed to persist until the conclusion of the suit, I hold that the same should be treated as part of the defendant’s opposition to the plaintiff’s application. In that case there is no need of considering the applications separately and the court will take into consideration the prayers in the defendant’s application such that if I find the plaintiff’s application merited, I should consider whether the circumstances of the case justify allowing the defendants to access the amount as prayed in their application.
The plaintiff’s application is supported by affidavits of Julius Simwoto, Gamaliel Kipkirui Kirui and Caren Makau, investigators working with the plaintiff. The deponents aver that the plaintiff got information that the 1 st defendant was receiving kickbacks from companies contracted by the Kenya Rural Roads Authority (hereinafter referred to as ‘KeRRA’) where he worked as an accountant upon which it commenced investigations. It is alleged that the 1 st defendant received monies from directors of Rolling Slope Limited, Keraracon General Services Limited, Nam Rajope Suppliers & Services Limited, Techpride Venture, Dynamic Arcs Limited, Kyenas Company Limited, Mbuvo Contractors Limited, Hive Merchants Limited, Capsol Limited and Quicklink Communications Limited who traded with KeRRA during the period of interest.
It was averred further that the defendants accumulated assets in landed properties, bank deposits, mpesa deposits and motor vehicles all valued at Kshs 124,690,729.06 which were disproportionate to their legitimate and known sources of income. In compliance with Section 26 of the Anti-Corruption and Economic Crimes Act (hereinafter referred to as ACECA), the defendants were served with notices to appear and explain their wealth which they failed to do within the prescribed period.
In his further affidavit, Julius Simwoto avers that other than the assets it has listed, the defendants live luxurious lifestyle which is beyond their known legitime sources of income. He applicant adds that the 1 st defendant was appointed by KeRRA on 18-11-2013 on three months contract which kept on being renewed until 10-02-2018 when it was made annual. He states further that the 2 nd defendant who is married to the 1 st defendant also benefitted from the kickbacks and helped the 1 st defendant in concealing the bribes.
The plaintiff asserts that its investigations revealed that the 1 st defendant held the following accounts;
1151521957 domiciled at Kenya Commercial Bank (hereinafter referred to as ‘the 1 st account’);
0120196520027 domiciled at Equity Bank Kenya Limited (hereinafter referred to as ‘the 2 nd account’);
0840184059257 domiciled at Equity Bank Kenya Limited (hereinafter referred to as ‘the 3 rd account’);
01116872666500 domiciled at Co-operative Bank (hereinafter referred to as ‘the 4 th account’);
01103872666500 domiciled at Co-operative Bank (hereinafter referred to as ‘the 5 th account’);
01245040877100 domiciled at National Bank Limited (hereinafter referred to as ‘the 6 th account’); and
0100004523215 domiciled at Stanbic Bank Kenya Limited (hereinafter referred to as ‘the 7 th account’)
The 2 nd defendant was said to have operated the following accounts;
1170695264 domiciled at Kenya Commercial Bank (hereinafter referred to as ‘the 8 th account’); and
1760184245288 domiciled at Equity Bank Kenya Limited (hereinafter referred to as ‘the 9 th account’).
The plaintiff avers further that upon analysis of the defendants’ records and statements which they lawfully obtained through court warrants, the 1 st defendant’s known legitimate source of income was net salary of 5,436,212.35, gratuity and service of Kshs 1,898,602.50 and daily subsistence and other allowances of Kshs 2,487,785.00. The analysis also showed that the during the period of interest, the accounts received funds as follows;
The 1 st account- Kshs 5,198,525.00;
The 2 nd account- Kshs 12,663,881.35;
The 3 rd account- Kshs 18,710,680.00;
The 4 th account- Kshs 400,000.00;
The 5 th account- Kshs 300,000.00;
The 6 th amount- Kshs 995,066.00;
The 7 th account- Kshs 7,850,000.00;
The 8 th account- Kshs 8,528,180.00;
The 9 th account- Kshs 434,200.00;
The 1 st defendant’s mpesa line number 0729988198- Kshs 23,536,750.00; and
The 2 nd defendant’s mpesa line number 0790801564- Kshs 30,723,835.56.
The plaintiff stated further that during the period of interest, the 1 st defendant acquired properties known as plot number 1148 in Mwengenye Settlement Scheme, an unidentified plot bought from Pilesi Thomas, plot number 2209, 3 acres in unidentified place bought from Mr. & Mrs. Mwania Mulungi, one care bought from Grace Kavili Mwania and Machakos/Matuu/4315.
The defendants also acquired motor vehicles registration numbers KDD 060P, KCW 135M, KCJ 019N, KCH 412J, KDJ 898L, KDA 989T, KCU 309G and KCP 461N from different people on different dates. Some were paid in cash while others are alleged to have paid by some directors of companies trading with KeRRA.
It is averred that the above assets were in variance with returns the defendants made to KRA and the income declaration forms filed with the 1 st defendant’s employer. The plaintiff avers that upon reconciliation, there was unexplained wealth of Kshs 74,584,513.50 in respect of the 1 st defendant while the 2 nd defendant had unexplained wealth of Kshs 50,106,215.56.
In response to the application, the defendants filed a replying affidavit dated 12 th February 2025 which is sworn by the 1 st defendant with authority of the 2 nd defendant. He admits working for KERRA during the period referred to by the plaintiff but denies receiving any kickbacks or bribes as claimed. He goes on to give the contracts awarded to the named companies and states that he never participated in evaluations, awards, management or payments of the projects and asserts that some of the projects were not even in the region where he was stationed. According to him, it is unconceivable why the plaintiff would connect him with the projects he did not participate in.
The 1 st defendant avers that the 3 rd account was opened and operated for purposes of raising money for his dowry payment and the money in the account were contributions by willing persons. He claims that the contributions for the dowry began on 9 th June 2023 up to 5 th August 2023. The contributions were raised through cash, mpesa and deposits into the account either through himself and other persons authorized by him.
The 2 nd defendant added that the search conducted in his house in by the plaintiff’s officers recovered Kshs 700,000.00 which was part of what was raised for the dowry payment. He has exhibited affidavits from some people showing that they contributed money to his dowry payment. He goes on to state that the money deposited by the directors of the named companies were either welfare groups contributions or the dowry payments. The defendant has averred further that the money seen in the 2 nd defendant’s account were from her boutique business and that money by Dynamics Arc Limited was a loan which enabled her to buy motor vehicle registration number KDJ 898J.
He avers that he was never subjected to any disciplinary proceedings by KeRRA or prosecuted for the actions complained of. He adds that in 2013, 2014 and 2015, he earned gross salary of Kshs 1,125,000.00 and imprest of Kshs 219,300.00 which should be considered as his investments before the period of interest. He has conceded that his earnings for the period of interest is as tabulated by the plaintiff safe for Kshs 112,000.00 he earned on 20-12-2021 and a sum of Kshs 2,133,600.00 earned between 2016 and 2020.
For the Kshs 5,198,525.00 seen in the 1 st account between August 2016 and August 2023, the defendants aver that the same were from sales of fruits, vegetables, cereals and bulls and welfare associations contributions. For the 2 nd account, the defendants explain that the sources of funds were his salaries and imprests from August 2016 to August 2023. He proceeds to show that he had some fixed deposits accounts which he linked with his salary account which earned him some interest from the investment.
The defendants further explain that the money moved through the 4 th , 5 th , 6 th , 7 th , 8 th and 9 th accounts were payments from their businesses while that in the 9 th account had deposits meant for the dowry payment. On mpesa lines, the defendants aver that the transactions therein were for personal, social and other welfare contributions including assisting friends and relatives in burials and other social needs.
For the landed property, the 1 st defendant depones that some were purchased using funds from his farm produce while others were bought by his late mother. He actually states that the only one bought by him is plot number 1148 in Mwengenye settlement scheme. He denied being a signatory to the land sales agreements. For the motor vehicles, the 1 st defendant depones that KDD 060P was purchased using a loan from KeRRA, his savings, farm produce and loan from Benjamin Mbithi. He adds that the plaintiff did not give them adequate opportunity to explain their wealth.
In their application to vary the injunctive orders, the defendants seek that they be allowed to access the amount to enable him pay tax liabilities and their advocate’s fees. The defendants aver that the account he seeks to access is for the 1 st defendant’s salary and transfers from his fixed deposits investments and should not therefore be classified as illegitimate money. He has exhibited receipts from Kenya Revenue Authority that demonstrates that the defendants have a tax liability of Kshs 3,719,088.00 and seek the orders to enable them take advantage of tax penalties and fines amnesty which was meant to lapse on 30-06-2025. He adds that he needs Kshs 700,000.00 for his advocates’ legal fees,
I have read the parties’ affidavits, the annexures thereto and submissions. The principals which govern granting of injunctions are well settled. That is, the plaintiff must establish a prima fascie case with a probability of success and that it will suffer irreparable damages if the application is not granted. If the court is still in doubt after considering the first two, it would decide the application on a balance of probabilities.
This matter has been filed under Section 55(2) of ACECA which provides that;
‘The Commission may commence proceedings under this section against a person if-
after an investigation, the Commission is satisfied that the person has unexplained assets; and
the person has, in the course of the exercise by the Commission of its powers of investigation or otherwise, been afforded a reasonable opportunity to explain the disproportion between the assets concerned and his known legitimate sources of income and the Commission is not satisfied that an adequate explanation of that disproportion has been given.’
What comes out of the above Section is that assets of a person which is not properly explained and is not proportional to their legitimate sources of income are liable to forfeiture to the government. The jurisprudence that has emerged from this section of the law and the entire Section 55 of the ACECA is that the holder of the suspected property is expected to give an explanation of how they acquired the said property and if they fail to sufficiently do so the court is justified to forfeit it on the basis that they are proceeds of corruption. In Stanley Mombo Amuti v Kenya Anti-Corruption Commission (2019) KECA 783 (KLR), the Court of Appeal described this concept as follows;
‘Entrenched in the Act is the concept of “unexplained assets” which is a legal innovation to combat the vice of “doubtful source of wealth, money laundering and suspicious corrupt practices.” Underlying the concept is the theme “You fail to satisfactorily explain the lawful source of assets, you forfeit it.”
All the plaintiff is expected to do is to set grounds for reasonable suspicion that the property was obtained through corruption upon which the burden is placed on the property owner to provide evidence in proof that the property was obtained otherwise than by way of corruption. In Ethics & Anti-Corruption Commission v Musyoka & 9 others (2024) KEHC 13560 (KLR), Honourable Justice P.J. Otieno held that;
‘The foundation of forfeiture proceedings of unexplained assets as defined in section 2 of ACEA is one, having assets which are disproportionate to a person’s known source of income and failure by an individual to explain satisfactorily the source of the assets and two, acquisition of the assets at or around the time the person was reasonably suspected of corruption or economic crime.’
In this matter, there is no dispute that the 1 st defendant is an employee of KeRRA a public body as an accountant and that the two defendants are husband and wife. There is also no dispute that the defendants interacted and transacted with several companies which were doing business with the 1 st defendant’s employer. There is evidence which the defendants have admitted that they on different dates and separately received money from directors of Rolling Slope Limited, Keraracon General Services Limited, Nam Rajope Suppliers & Services Limited, Techpride Venture, Dynamic Arcs Limited, Kyenas Company limited, Mbuvo Contractors Limited, Hive Merchants Limited, Capsol Limited and Quicklink Communications Limited which companies traded with the KeRRA.
It is also evident from the breakdown of receipts and bank deposits that the monies received by the 1 st defendant by far outweighed his salaries and allowances. According to the plaintiff, which is not far from the true position, the salaries and allowances for the 1 st defendant within the period of imprest amounted to Kshs 9,822,599,85 whereas the funds received in his bank and mpesa accounts are shown to be in the region of Kshs 59,832,302.50 giving a difference of Kshs 50,009,702.60.
The defendants have explained the discrepancy in income by stating that they were engaged in business of running a boutique, cereals and farming. The defendant has produced permits for an entity known as Style Mark Boutique for 2020, 2021, 2022, and 2023 and some sales receipts for 2017 to 2019. The few receipts do not in my view represent the size of the business that would generate amounts such as what we have in this matter.
There is no explanation where the sales of the bulls the defendants claim to have sold were conducted. It is expected that the trade in livestock and vegetables must be a booming business for it to attract the kind and magnitude of transactions like the ones involved in this matter. The defendants have not produced any books of accounts for the alleged business or even simple receipts from the markets where the trading was conducted.
On the issue of the motor vehicles, the defendants have alleged that they were bought with loans from KeRRA, income from farming and loans from individuals. I have already said enough of the income from the 1 st defendant’s employer. About the loans from the employer and individuals, it obvious that these loans if at all would be repaid using the same income this court has cast doubts on. Further, the claim by the 2 nd defendant that she got loan from a director of one of the companies should interest the court to want to know what business the said company had with the 2 nd defendant. It is not by coincidence that the director of the same companies which traded with KeRRA contributed money towards what is said to have been dowry fundraiser exercise.
The court does not wish to go into deep analysis of the evidence produced by the parties as some details are better left for the court which will deal with the substantive suit. At this stage, this court is not required to go into the deep merits of the matter otherwise it may embarrass the proceedings of the main suit. All that I am required to do is to analyse and interrogate whether there is a prima fascie case established. A prima fascie case need not be that which must succeed but that which discloses a likely breach of a right or legal obligation. In Pius Kipchirchir Kogo v Frank Kimeli Tenai (2018) KEELC 2424 (KLR), it was held that;
‘A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. ’
In my analysis of the evidence and in view of what I have stated above, this court is satisfied that the plaintiff has established a prima fascie case with a probability of cusses under Section 55 of ACECA. It is notable that the parties have produced detailed evidence which this court would have found sufficient to deal with the originating summons, but since the matter belongs to the parties and there could be need for further evidence during prosecution of the substantive suit, the court will have to limit its mind to the notice of motion dated 16 th December 2024.
The second principle I need to consider is whether there is likelihood of irreparable damages in the event the application is not granted. The plaintiff seeks an injunction against dealing with money in the bank accounts and the motor vehicles. This court is alive to the fact that the assets sought to be preserved by the injunction are liquid money and what can be described as fast-moving assets. The plaintiff has brought this suit on behalf of the people of Kenya. The defendants have claimed that the landed properties are not registered to them and actually some of them are not properly identified or described and I doubt that they are registered and, in my opinion, they are of the least in value among the categories sought to be forfeited.
The funds in the bank accounts amount to Kshs 99,068,518.10 against the 1 st defendant’s monthly salary of Kshs 108,852.05. If the application is not granted and the funds in the account are dissipated and the plaintiff succeeds in the suit, it would mean that it will take over 70 years to recover the decretal sum if the salary would be the only known source of income for the defendants.
In view of the above, I am convinced that failure to grant the application may result to spending more public funds in chasing the wind in form of execution proceedings if the assets are disposed of. This would not be a desirable outcome as much the damages can be quantified. I therefore hold that the element of irreparable damages has been satisfied.
The last limb is the balance of convenience. I do not have to go into this since the first two limbs have been satisfied but I may need to mention that the balance would tilt to the advantage of granting the application. This is an application for injunction and not forfeiture. The property in the assets will not be passed to the plaintiff but simply preserved as security for the outcome of the matter. If the suit succeeds, the funds and the motor vehicles with still be available to the defendants.
The final question to answer is whether the application dated 17 th April 2025 is merited. The defendants have claimed that the funds in the accounts are the 1 st defendant’s salary and is not tainted. I have gone through the transactions in the said account and I note that not all the monies therein were salaries. The funds in that account amount to Kshs 12,663,881.35 while the 1 st defendant’s cumulative salary and allowances for the same period is Kshs 9,822,599.85 which means that the deficit of Kshs 2,841,281.50 in that account has not been explained. Further, treating the funds therein as constituting the 1 st defendant’s salaries and allowances would mean that the 1 st defendant saved 100 per cent of all his salaries and allowances which is not practical. This court has no magic of separating money for the salary and that which has come in as unexplained. The same goes for the funds transferred to fixed deposits accounts and later retransferred after maturity.
The alleged tax liability cannot in my view be a reason for releasing the money to the 1 st defendant. Tax obligations are personal and failure to pay the same is an offence. The defendants are asking the court to help them purge an offence which in my view was committed deliberately. A court of law cannot bend backwards for such a party. In any event, the tax goes to the government which is the same claimant in this matter. We cannot take what is claimed by the plaintiff in public interest to offset what is due to the government from the defendants.
The Kshs 700,000.00 claimed to be legal fees is pegged on the defendants’ right to be represented by an advocate under Article 50(2)(g) of the Constitution. Again, this is a private arrangement which the court is not obligated to help the defendants achieve. If the funds were at the end of the trial to be found liable for forfeiture, the court would have shot itself in the foot by releasing funds to an individual at the expense of its duty to protect public funds and interests.
The upshot of the above is that I find no merits in the defendants’ application dated 17 th April 2025 and hold that the plaintiff’s application dated 16 th December 2024 is merited.
In conclusion, I issue the following orders;
Pending the hearing and determination of this suit, the 1 st defendant, his agents, servants and/or any other persons acting on his behalf are restrained from withdrawing, transferring, disposing, wasting, or in any other way dealing with funds held in the following bank accounts;
Bank account number 0840184059257 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Bank account number 012019650027 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Bank account number 0390384299903 held at Equity Bank Kenya Limited in the name of Daniel Munywoki Wambua.
Pending the hearing and determination of this suit, the defendants, their agents, servants and/or any other persons acting on their behalf are restrained from selling, transferring, disposing, wasting or in any other way alienating the following motor vehicles.
Motor vehicle registration number KDD 060P registered in the name of Daniel Munywoki Wambua.
Motor vehicle registration number KCJ 019N registered in the name of Daniel Munywoki Wambua.
Motor vehicle registration number KDJ 898L registered in the name of Judith Vaati Matheka.
Motor vehicle registration number KDA 989T registered in the name of Judith Vaati Matheka.
Motor vehicle registration number KCU 309G registered in the name of Judith Vaati Matheka.
The defendant’s application dated 17 th April 2025 is dismissed.
The costs of the applications shall be in the cause.
Dated, signed and delivered at Nairobi this 31 th day of July 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of Miss Lunyolo for the plaintiff and Miss Akinyi for the defendant.