The plaintiff brought a notice of motion application dated 2-04-2026 to which this ruling relates seeking the following orders: -
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3. That pending the hearing and determination of this suit, the Honourable Court be pleased to issue an order prohibiting the 1 st , 2 nd and 3 rd respondents, their agents, servants, or any other person from withdrawing, transferring, accessing or in any other way dealing with funds held in the below-listed bank accounts;
i. Kshs. 110,000,000/= held in fixed deposit a/c no. 0990385621366 Equity Bank Lodwar branch in the name of Napeyok Suppliers and Contractors.
ii. Kshs. 125,000,000/= held in fixed deposit a/c no. 09900385608223 Equity Bank Lodwar branch in the name of Napeyok Suppliers and Contractors.
iii. Kshs. 649,375.36 held in fixed deposit a/c no. 0990273401035 Equity Bank Lodwar branch in the name of Trabamo Investments Limited.
iv. Kshs. 230,000,000/= held in fixed deposit a/c no. 01105913203003 Cooperative Bank Lodwar branch in the name of Kamais Juliah Ekaran.
v. Kshs. 140,000,000/= held in fixed deposit a/c no. 0990386186169 Equity Bank Lodwar branch in the name of Napeyok Suppliers and Contractors.
vi. Kshs. 90,500,000/= held in fixed deposit a/c no. 0990385579532 Equity Bank Lodwar branch in the name of Napeyok Suppliers and Contractors.
4. The costs of this Application be provided for.
The plaintiff’s case
The application is premised on grounds on the face of it and supported by affidavit of Margaret Wambeti sworn on 2 nd April 2026. Margaret depones that the plaintiff investigated alleged fraudulent acquisition of funds from the County Government of Turkana (hereinafter referred to as ‘the government’) by the 1 st defendants who is a former county accountant in the government. The said acquisition is said to have been orchestrated in a scheme to siphon public funds through fictitious and irregular contracts using the 3 rd , 5 th , 7 th and 10 th defendants, whose beneficial owner was the 1 st defendants.
It was deponed that the 1 st respondent was the first director and shareholder of the 3 rd respondent until April 2020 when he transferred his shares and relinquished directorship but remained the company’s bank signatory. Between 2018 and 2024, the 3 rd defendant fraudulently acquired a sum of Kshs. 496,494,540.00 from the government purportedly for supply of goods and services but upon request for documents relevant to the procurement related to the payments, the plaintiff was only supplied with 18 payment vouchers for amounts totaling to Kshs 282,005,825.00. It was alleged that the 3 rd defendant did not meet the criteria for award of the tender in question and had falsified financial statements and other documents thereby making any contract arising therefrom illegal and vitiated. The plaintiff claimed further that the difference of Kshs 214,488,725.00 was paid for goods or services not delivered or rendered. Part of the paid amount being Kshs 209,550,000.00 was transferred by the 3 rd defendant to the 1 st defendant.
The deponent added that the 5 th respondent was incorporated on 16 th July 2023 and between 5 th July 2023 and 13 th February 2025. it received from the government a sum of Kshs 357,934,275.00 with the first batch of Kshs 89,150,000.00 being paid 19 days after its incorporation. She added that the short period of 19 days could not be enough for procurement procedures and as such the process must have been irregular. Some of the irregularities the investigator pointed out was that the 5 th respondent could not have possibly demonstrated financial capacity within that short period and that it submitted financial statements for 2020 and 2021 which period it had not been incorporated. Kshs 82,000,000.00 being part of these funds was transferred to the 1 st defendant.
It was further deponed that on 7 th March 2019 and 7 th July 2019, the 7 th defendant fraudulently acquired Kshs 259,149,680.40 from the government purportedly for supply of goods and services. The plaintiff averred further that, upon request for documents in respect of these payments, it received payment vouchers for only Kshs 111,797,967.00 and that the procurement was done using falsified documents which were submitted by the 7 th , 8 th and 9 th defendants. The 7 th defendant later transmitted part of money in these payments to the 1 st and 2 nd defendants’ joint account.
The plaintiff’s investigator stated further that on 20 th September 2018 and 10 th March 2023, the 10 th defendant fraudulently acquired Kshs 124,000,000.00 from the government purportedly for supply of goods and rendering of various services. The said defendant and the government failed to supply the plaintiff with procurement documents related to this payment. From this sum, the 11 th defendant who is a director of the 10 th defendant transferred a sum of Kshs 47,991,000.00 to the 1 st defendant.
The 1 st to 4 th defendants’ case
In opposition to the application, the 1 st to 4 th defendants filed a replying affidavit sworn by the 1 st defendant on 26-04-2026 whereas the other defendants chose to remain silent. The 1 st defendant deposed that he is a businessman and a director of the 3 rd defendant and spouse of the 2 nd defendant. He explained that he commenced business in 2011 under the name Napeyok Suppliers and Contractors and has, over the years, invested his income in fixed deposits as a source of passive income. In the affidavit, he sought review and variation of the preservation orders issued on 7-04-2026, particularly in respect of the 3 rd defendant’s account and the joint account of himself and the 2 nd defendant and urged the court to expedite the hearing of the main suit. It is instructive to note that the 1 st defendant said nothing in respect of the funds sought to be preserved under prayers 3(i), ii), (v) and (vi).
Regarding the 3 rd defendant, the 1 st defendant sought access to funds deposited into Account No. 0990273401035 at Equity Bank, Lodwar, after the preservation order was issued. He stated that the company has continued undertaking other businesses and receiving rental income, which is subject to taxation, but cannot access the account to meet its tax obligations. He alleged that the Kenya Revenue Authority has threatened the 3 rd defendant with prosecution over unpaid taxes and therefore sought a conditional variation allowing access to funds not subject to preservation. He relied on the 3 rd defendant’s bank account statements, Kenya Revenue Authority notices and correspondence with the plaintiff to demonstrate the company’s subsequent business activities and the urgency of the request.
Concerning the account held jointly by himself and the 2 nd defendant which is subject of prayer 3(iv), the 1 st defendant averred that the plaintiff was guilty of material non-disclosure, as the funds have no connection to the government’s contracts. He explained that the money originated from Hotel Gloste, which made successive fixed deposits between 2017 and 2023, eventually accumulating substantial interest. Upon maturity of the fixed deposit on 15-08-2023, he and his spouse transferred approximately Kshs. 184 million from the hotel account and fixed it in their joint account at the Cooperative Bank. He deposed that continued freezing of the funds has severely affected the hotel’s operations and placed the business at risk of collapse.
The 1 st respondent further explained that Kshs. 33,332,000.00 transferred into the joint account by the 7 th defendant arose from a legitimate loan-financing arrangement entered into with the 7 th defendant in February 2023. He added that under the agreement, he financed the procurement of goods for a government tender by making payments of Kshs 30,873,725.00 directly to Soy Afric Limited on behalf of the 7 th defendant. After the 7 th defendant failed to repay the loan within the agreed period, a demand was issued and it subsequently transferred Kshs. 33,332,000.00 to the joint account in settlement of the principal and agreed interest.
The plaintiff’s rebuttal
In rebuttal, the plaintiff filed a further affidavit sworn by its investigator on 25-05-2026 disputing the defendants’ claim that funds held in the 3 rd defendant’s account arose from legitimate business activities. It deponed that the sales and other transactions that allegedly occurred outside the preservation period were unsupported by procurement records, tender documents, delivery notes, contracts or other evidence of goods supplied or services rendered. The applicant further stated that Kshs. 23,419,283.25 credited to the account on 11-10-2024 was subsequently withdrawn or transferred, leaving a balance of Kshs. 649,375.36 by April 2025. It maintained that the government funds are directly relevant to the proceedings and should remain preserved, particularly as the 3 rd defendant is alleged to have fraudulently received Kshs. 496,494,540 from the government.
With regard to the 1 st and 2 nd defendants’ joint account, the applicant maintained that investigations established that the 7 th defendant fraudulently obtained substantial sums from the government and subsequently transferred Kshs. 33,332,000.00 into the joint account, a transfer expressly admitted by the 1 st defendant. It added that the funds in the account are commingled with monies reasonably suspected to be proceeds of crime and are at risk of dissipation, concealment or transfer. It added that the respondents’ explanations concerning the source of the funds should be tested at the substantive hearing noting that they had previously been invited to assist with investigations but failed to provide the necessary explanations.
Analysis and determination
The application was heard by way of written submissions. I have read and considered facts pleaded by the parties including the exhibits. I have also considered the plaintiff’s submissions dated 25 th May 2026 and those of the 1 st to 4 th defendants dated 8 th June 2026 and authorities cited by the parties which basically emphasized the parties’ positions as indicated in their respective affidavits. Having done so, I have taken position that, the issues for determination are: -
a) Whether the plaintiff has met the threshold for preservation/injunctive orders.
b) What are the appropriate orders in the circumstances?
It is trite that for an applicant to deserve orders of injunction, it must establish that it has a prima fascie case with a probability of success and that damages would not be adequate compensation for any resultant injury in the event the injunction is not issued. If the court is in doubt, it would decide the application on a balance of convenience. This long held principle has been cited in many judicial decisions including Joseph Siro Mosioma v Housing Finance Company of Kenya & 3 others [2008] KEHC 3673 (KLR) where the court stated that;
‘It is a requirement in law that a person seeking an injunctive relief must show the existence of a prima facie case with a probability of success at the trial. Secondly a court will not normally grant an interlocutory injunction unless it can be shown that the applicant is likely to suffer an injury which cannot adequately be compensated in damages. Lastly if the court is in doubt as to the existence, presence or otherwise of a prima facie case, it is bound to decide the case on a balance of convenience.’
In my view, the evidence produced the plaintiff establishes money trails from the government to the defendant companies and thereafter substantial part of it to accounts associated with the 1 st and 2 nd defendants. The plaintiff has demonstrated that the 3 rd , 5 th , 7 th and 10 th defendants received substantial sums from the government through tenders which are said to have been fraudulent as there were deficiencies in procurement documentation, including absence of tender documents, contracts, delivery notes and other supporting records.
The defendants have not sought to explain the deficiencies or irregularities identified by the plaintiff. As indicated earlier in this ruling, the 1 st respondent has not said anything to explain the issues raised by the plaintiff in respect of funds subject to prayers 3(i), (ii), (v) and (vi). In respect of prayer 3(ii), the 1 st defendant has argued that account number 0990273401035 held by the 3 rd defendant continued receiving funds after the initial preservation orders and as such the said latter funds should not be subjected to freezing orders while for prayer 3(iv), he has maintained that the source of the funds was a legitimate business from his hotel known as Hotel Gloste and some repayments of loan advanced to the 7 th defendant.
The above facts taken cumulatively, establish a genuine and arguable case calling for answers from the defendants. One would have expected the defendants to provide these answers by producing the documents they used and obtained in procuring the tenders or the contracts with the government and evidence of delivery of the goods or services. Contracts of these magnitude if genuine or regular, must have been accompanied with documentations.
I have considered the defendants’ explanation that the funds in the joint account were substantially accumulated from Hotel Gloste’s business and fixed deposits dating back to 2017. It is important to note that the plaintiff’s contention is that the irregular procurements date back to 2018. The bank account statement produced by the defendants as exhibit ‘SL-4’ shows that at the end of 2017, the account had a credit balance of Kshs 18,967,667.00. At paragraph 13 of the replying affidavit, the 1 st defendant has given an extract of how the money moved from the hotel business to a fixed deposit account which ultimately grew to Kshs 185,784,609.00 as at 15-08-2022. He explains that Kshs 184,000,000.00 which was part of the investment was moved to the 1 st and 2 nd defendants’ joint fixed deposit account.
The above explanation may be so and a good and commendable business acumen but what I find lacking is explanation of the source of the funds used for setting up the hotel and the legitimate income associated with the same business noting that the statement starts too close to the period of interests and with not so much credit balance as compared to what the plaintiff claims to have been irregular payments. The defendants have not placed before the court books of accounts to show that the said hotel legitimately generated that kind of income.
Where a defendant is faced with allegations of unexplained wealth or assets suspected to have been obtained through corrupt conduct, they have a duty to lay before the court plausible explanation of their earnings. The defendants in this matter have not broken down the hotel’s periodic income and in my view, this point calls for proper interrogation in a full hearing. Although this suit is not brought under Section 55 of the Anti-Corruption and Economic Crimes Act, the concept of unexplained wealth in these interlocutory proceedings is relevant since the circumstances of the case suggest generation of income from corrupt conduct.
In Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] KECA 783 (KLR) , the Court of Appeal held that;
‘The concept of “unexplained assets” and its forfeiture under Sections 26 and 55 (2) of ACECA is neither founded on criminal proceedings nor conviction for a criminal offence or economic crime. Sections 26 and 55 of ACECA are non-conviction based civil forfeiture provisions. The Sections are activated as an action in rem against the property itself. The Sections require the Anti- Corruption Commission to prove on balance of probability that an individual has assets disproportionate to his/her legitimately known sources of income. Section 55 (2) of the Act make provision for evidentiary burden which is cast upon the person under investigation to provide satisfactory explanation to establish the legitimate origin of his/her assets. This evidentiary burden is a dynamic burden of proof requiring one who is better able to prove a fact to be the one to prove it.’
The defendants’ explanation concerning the transfer of Kshs.33,332,000.00 does not, at this stage, completely sever the connection between the money and the subject matter of the suit. Indeed, the 1 st respondent expressly acknowledges receipt of the money from the 7 th defendant. His explanation is that the money represented repayment of financing extended to that company. Whether the underlying transaction was genuinely a private financing arrangement and whether the funds used in that transaction were themselves legitimate are matters requiring evidential examination at the trial.
It is worth to note that the financing agreement is dated 2 nd October 2023 while the irregular payments are claimed to have started in 2018 and ran through to 2024. If indeed the said payments were irregular, it would mean that what was loaned or financed to the 7 th defendant was part of those irregular payments and therefore recoverable. In that regard, the fact that the loan was paid back to the 1 st defendant does not remove the said money from the realm of recovery. At this stage, the court is not able to separate the funds from the rest since the same seemingly intermingled with unclean funds. Where a person intermingles legitimately acquired assets with dirty ones, they must bear the consequences and the risk of losing the clean part of it.
To escape that dragnet, the defendants must place cogent evidence and articulately separate the legitimate assets from corrupt practices. Even then, the court notes that the ultimate goal is to recover what the government lost to corruption and the defendant if found liable for the loss would have to pay from both his legitimate and illegitimate streams as the final judgement of the court will be a liquidated claim. Based on the above, I hold that the plaintiff has established a prima fascie case with a probability of success.
The second consideration is whether the applicant is likely to suffer irreparable loss if the funds are released. The applicant seeks recovery of Kshs. 1,237,578,496/- allegedly lost through fraudulent and irregular procurement transactions. If the funds presently preserved are withdrawn or transferred to third parties, the applicant may be compelled, in the event of success after trial, to undertake further tracing and recovery proceedings. More importantly, the subject matter of the present proceedings may be substantially dissipated before this court determines the parties’ respective rights.
The plaintiff brings this suit on behalf of the public and risking possibility of further tracing would amount to more spending of public coffers. This will go against the constitutional requirement that public funds should be used in a prudent manner. In my view, even where damages are quantifiable or the claim is liquidated, the court should consider adequacy of what may ultimately be recovered especially where the matter involves public funds or property.
In Ethics & Anti Corruption Commission v Moses Kasaine Lenolkulal [2019] KEHC 1159 (KLR) the court recognised the danger of releasing funds in similar circumstances by holding that: -
‘ It is true that the applicant will suffer irreparable damage or loss should the properties be disposed or funds withdrawn as there will be nothing left to forfeit and recover in the event that the suit succeeds. It is therefore equitable that the orders sought seeking to preserve the properties and funds to issue as the defendant will not suffer any prejudice by so preserving them.’
I in the circumstances, find that the loss the public represented by the plaintiff is likely to suffer if the application is not granted, though reparable is substantial and identified funds deserve protection. Having found that the plaintiff has established a prima fascie case with a probability of success and that funds would likely not be recoverable in the evident they are withdrawn, I do not have to venture into the balance of convenience. Nevertheless, even if I were wrong on the first two principles, I find that the balance of convenience also favours granting orders of injunction. The public interest in ensuring that the alleged proceeds of corruption remain available for recovery if the claim succeeds outweighs the inconvenience occasioned to the defendants by temporary restriction of access to the disputed funds.
The first defendant has sought through his replying affidavit that this court varies preservation orders in respect of the 3 rd defendant. First, an application for review or variation cannot be done through a replying affidavit. It can only be done through a substantive application duly filed, served and prosecuted. Secondly, the orders of preservation dated 7 th April 2026 were in the interim pending hearing and determination of the application and as such, since this application has been argued substantively, the resultant ruling cannot purport to review or vary them. The defendants’ remedy lay in opposing the application which right they have exercised and which opposition I have considered and reached conclusion as indicated in the foregoing paragraphs.
The defendants argue that some funds were deposited in the account outside the period of interest and that the 3 rd defendant needs the funds to pay taxes. The defendants’ exhibit ‘LS-1’ is a tax demand dated 9-04-2026 which calls for taxes going back to October 2024. These taxes are shown to have accrued from business with the government among others. If the payment by the government were not payable in the 1 st place, then it would mean that the taxes would not have been due. Further, tax demands are procedural and not determinate and in my view the 3 rd defendant is at liberty to deal with the demands without any threat to its business.
As I have stated elsewhere in this ruling, any funds however clean they are, which have intermingled with the suspected funds should be preserved pending the full hearing. That said, I find that the reasons advanced for review are not sufficient.
Final orders
In conclusion, I find that the plaintiff has met the threshold for granting of the application safe that I would order the costs of the same be in the cause. I note that both sides of the matter have expressed their willingness to fast track and expedite the hearing and disposal of the suit.
Accordingly, I make the following orders;
1. The 1 st , 2 nd and 3 rd defendants, their agents, servants, or any other person are hereby restricted and restrained from withdrawing, transferring, accessing or in any other way dealing with funds held in the below-listed bank accounts pending hearing and determination of this suit;
a. Kshs. 110,000,000.00 in fixed deposit account No. 0990385621366 held in Equity Bank, Lodwar Branch, in the name of Napeyok Suppliers and Contractors.
b. Kshs. 125,000,000.00 in fixed deposit account No. 09900385608223 held in Equity Bank, Lodwar Branch, in the name of Napeyok Suppliers and Contractors;
c. Kshs. 140,000,000.00 in fixed deposit account No. 0990386186169 held in Equity Bank, Lodwar Branch, in the name of Napeyok Suppliers and Contractors.
d. Kshs. 230,000,000/= held in fixed deposit a/c no. 01105913203003 Cooperative Bank Lodwar branch in the name of Kamais Juliah Ekaran.
e. Kshs. 90,500,000.00 in fixed deposit account No. 0990385579532 held in Equity Bank, Lodwar Branch, in the name of Napeyok Suppliers and Contractors.
f. Kshs.649,375.36 in account no. 0990273401035 held in Equity Bank, Lodwar Branch, in the name of Trabamo Investments Limited.
2. The defendants shall file and serve their defences, lists and bundles of documents and witnesses’ statements within the next fourteen (14) days.
3. The plaintiff shall file and serve reply to defence if need be, within seven (7) days from the date of service of the last of the defences.
4. This matter shall be fixed for pre-trial before this court on a date to be fixed after delivery of this ruling.
5. Costs of the application shall be in the cause.
Dated, signed and delivered at Nairobi this 18 th day of September 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence of Miss Kibogy holding brief for Miss Biwott for the plaintiff and Mr. Omamo for the defendants.
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3. That pending the hearing and determination of this suit, the Honourable Court be pleased to issue an order prohibiting the 1 st , 2 nd and 3 rd respondents, their agents, servants, or any other person from withdrawing, transferring, accessing or in any other way dealing with funds held in the below-listed bank accounts;
i. Kshs. 110,000,000/= held in fixed deposit a/c no. 0990385621366 Equity Bank Lodwar branch in the name of Napeyok Suppliers and Contractors.
ii. Kshs. 125,000,000/= held in fixed deposit a/c no. 09900385608223 Equity Bank Lodwar branch in the name of Napeyok Suppliers and Contractors.
iii. Kshs. 649,375.36 held in fixed deposit a/c no. 0990273401035 Equity Bank Lodwar branch in the name of Trabamo Investments Limited.
iv. Kshs. 230,000,000/= held in fixed deposit a/c no. 01105913203003 Cooperative Bank Lodwar branch in the name of Kamais Juliah Ekaran.
v. Kshs. 140,000,000/= held in fixed deposit a/c no. 0990386186169 Equity Bank Lodwar branch in the name of Napeyok Suppliers and Contractors.
vi. Kshs. 90,500,000/= held in fixed deposit a/c no. 0990385579532 Equity Bank Lodwar branch in the name of Napeyok Suppliers and Contractors.
4. The costs of this Application be provided for.
The plaintiff’s case
The application is premised on grounds on the face of it and supported by affidavit of Margaret Wambeti sworn on 2 nd April 2026. Margaret depones that the plaintiff investigated alleged fraudulent acquisition of funds from the County Government of Turkana (hereinafter referred to as ‘the government’) by the 1 st defendants who is a former county accountant in the government. The said acquisition is said to have been orchestrated in a scheme to siphon public funds through fictitious and irregular contracts using the 3 rd , 5 th , 7 th and 10 th defendants, whose beneficial owner was the 1 st defendants.
It was deponed that the 1 st respondent was the first director and shareholder of the 3 rd respondent until April 2020 when he transferred his shares and relinquished directorship but remained the company’s bank signatory. Between 2018 and 2024, the 3 rd defendant fraudulently acquired a sum of Kshs. 496,494,540.00 from the government purportedly for supply of goods and services but upon request for documents relevant to the procurement related to the payments, the plaintiff was only supplied with 18 payment vouchers for amounts totaling to Kshs 282,005,825.00. It was alleged that the 3 rd defendant did not meet the criteria for award of the tender in question and had falsified financial statements and other documents thereby making any contract arising therefrom illegal and vitiated. The plaintiff claimed further that the difference of Kshs 214,488,725.00 was paid for goods or services not delivered or rendered. Part of the paid amount being Kshs 209,550,000.00 was transferred by the 3 rd defendant to the 1 st defendant.
The deponent added that the 5 th respondent was incorporated on 16 th July 2023 and between 5 th July 2023 and 13 th February 2025. it received from the government a sum of Kshs 357,934,275.00 with the first batch of Kshs 89,150,000.00 being paid 19 days after its incorporation. She added that the short period of 19 days could not be enough for procurement procedures and as such the process must have been irregular. Some of the irregularities the investigator pointed out was that the 5 th respondent could not have possibly demonstrated financial capacity within that short period and that it submitted financial statements for 2020 and 2021 which period it had not been incorporated. Kshs 82,000,000.00 being part of these funds was transferred to the 1 st defendant.
It was further deponed that on 7 th March 2019 and 7 th July 2019, the 7 th defendant fraudulently acquired Kshs 259,149,680.40 from the government purportedly for supply of goods and services. The plaintiff averred further that, upon request for documents in respect of these payments, it received payment vouchers for only Kshs 111,797,967.00 and that the procurement was done using falsified documents which were submitted by the 7 th , 8 th and 9 th defendants. The 7 th defendant later transmitted part of money in these payments to the 1 st and 2 nd defendants’ joint account.
The plaintiff’s investigator stated further that on 20 th September 2018 and 10 th March 2023, the 10 th defendant fraudulently acquired Kshs 124,000,000.00 from the government purportedly for supply of goods and rendering of various services. The said defendant and the government failed to supply the plaintiff with procurement documents related to this payment. From this sum, the 11 th defendant who is a director of the 10 th defendant transferred a sum of Kshs 47,991,000.00 to the 1 st defendant.
The 1 st to 4 th defendants’ case
In opposition to the application, the 1 st to 4 th defendants filed a replying affidavit sworn by the 1 st defendant on 26-04-2026 whereas the other defendants chose to remain silent. The 1 st defendant deposed that he is a businessman and a director of the 3 rd defendant and spouse of the 2 nd defendant. He explained that he commenced business in 2011 under the name Napeyok Suppliers and Contractors and has, over the years, invested his income in fixed deposits as a source of passive income. In the affidavit, he sought review and variation of the preservation orders issued on 7-04-2026, particularly in respect of the 3 rd defendant’s account and the joint account of himself and the 2 nd defendant and urged the court to expedite the hearing of the main suit. It is instructive to note that the 1 st defendant said nothing in respect of the funds sought to be preserved under prayers 3(i), ii), (v) and (vi).
Regarding the 3 rd defendant, the 1 st defendant sought access to funds deposited into Account No. 0990273401035 at Equity Bank, Lodwar, after the preservation order was issued. He stated that the company has continued undertaking other businesses and receiving rental income, which is subject to taxation, but cannot access the account to meet its tax obligations. He alleged that the Kenya Revenue Authority has threatened the 3 rd defendant with prosecution over unpaid taxes and therefore sought a conditional variation allowing access to funds not subject to preservation. He relied on the 3 rd defendant’s bank account statements, Kenya Revenue Authority notices and correspondence with the plaintiff to demonstrate the company’s subsequent business activities and the urgency of the request.
Concerning the account held jointly by himself and the 2 nd defendant which is subject of prayer 3(iv), the 1 st defendant averred that the plaintiff was guilty of material non-disclosure, as the funds have no connection to the government’s contracts. He explained that the money originated from Hotel Gloste, which made successive fixed deposits between 2017 and 2023, eventually accumulating substantial interest. Upon maturity of the fixed deposit on 15-08-2023, he and his spouse transferred approximately Kshs. 184 million from the hotel account and fixed it in their joint account at the Cooperative Bank. He deposed that continued freezing of the funds has severely affected the hotel’s operations and placed the business at risk of collapse.
The 1 st respondent further explained that Kshs. 33,332,000.00 transferred into the joint account by the 7 th defendant arose from a legitimate loan-financing arrangement entered into with the 7 th defendant in February 2023. He added that under the agreement, he financed the procurement of goods for a government tender by making payments of Kshs 30,873,725.00 directly to Soy Afric Limited on behalf of the 7 th defendant. After the 7 th defendant failed to repay the loan within the agreed period, a demand was issued and it subsequently transferred Kshs. 33,332,000.00 to the joint account in settlement of the principal and agreed interest.
The plaintiff’s rebuttal
In rebuttal, the plaintiff filed a further affidavit sworn by its investigator on 25-05-2026 disputing the defendants’ claim that funds held in the 3 rd defendant’s account arose from legitimate business activities. It deponed that the sales and other transactions that allegedly occurred outside the preservation period were unsupported by procurement records, tender documents, delivery notes, contracts or other evidence of goods supplied or services rendered. The applicant further stated that Kshs. 23,419,283.25 credited to the account on 11-10-2024 was subsequently withdrawn or transferred, leaving a balance of Kshs. 649,375.36 by April 2025. It maintained that the government funds are directly relevant to the proceedings and should remain preserved, particularly as the 3 rd defendant is alleged to have fraudulently received Kshs. 496,494,540 from the government.
With regard to the 1 st and 2 nd defendants’ joint account, the applicant maintained that investigations established that the 7 th defendant fraudulently obtained substantial sums from the government and subsequently transferred Kshs. 33,332,000.00 into the joint account, a transfer expressly admitted by the 1 st defendant. It added that the funds in the account are commingled with monies reasonably suspected to be proceeds of crime and are at risk of dissipation, concealment or transfer. It added that the respondents’ explanations concerning the source of the funds should be tested at the substantive hearing noting that they had previously been invited to assist with investigations but failed to provide the necessary explanations.
Analysis and determination
The application was heard by way of written submissions. I have read and considered facts pleaded by the parties including the exhibits. I have also considered the plaintiff’s submissions dated 25 th May 2026 and those of the 1 st to 4 th defendants dated 8 th June 2026 and authorities cited by the parties which basically emphasized the parties’ positions as indicated in their respective affidavits. Having done so, I have taken position that, the issues for determination are: -
a) Whether the plaintiff has met the threshold for preservation/injunctive orders.
b) What are the appropriate orders in the circumstances?
It is trite that for an applicant to deserve orders of injunction, it must establish that it has a prima fascie case with a probability of success and that damages would not be adequate compensation for any resultant injury in the event the injunction is not issued. If the court is in doubt, it would decide the application on a balance of convenience. This long held principle has been cited in many judicial decisions including Joseph Siro Mosioma v Housing Finance Company of Kenya & 3 others [2008] KEHC 3673 (KLR) where the court stated that;
‘It is a requirement in law that a person seeking an injunctive relief must show the existence of a prima facie case with a probability of success at the trial. Secondly a court will not normally grant an interlocutory injunction unless it can be shown that the applicant is likely to suffer an injury which cannot adequately be compensated in damages. Lastly if the court is in doubt as to the existence, presence or otherwise of a prima facie case, it is bound to decide the case on a balance of convenience.’
In my view, the evidence produced the plaintiff establishes money trails from the government to the defendant companies and thereafter substantial part of it to accounts associated with the 1 st and 2 nd defendants. The plaintiff has demonstrated that the 3 rd , 5 th , 7 th and 10 th defendants received substantial sums from the government through tenders which are said to have been fraudulent as there were deficiencies in procurement documentation, including absence of tender documents, contracts, delivery notes and other supporting records.
The defendants have not sought to explain the deficiencies or irregularities identified by the plaintiff. As indicated earlier in this ruling, the 1 st respondent has not said anything to explain the issues raised by the plaintiff in respect of funds subject to prayers 3(i), (ii), (v) and (vi). In respect of prayer 3(ii), the 1 st defendant has argued that account number 0990273401035 held by the 3 rd defendant continued receiving funds after the initial preservation orders and as such the said latter funds should not be subjected to freezing orders while for prayer 3(iv), he has maintained that the source of the funds was a legitimate business from his hotel known as Hotel Gloste and some repayments of loan advanced to the 7 th defendant.
The above facts taken cumulatively, establish a genuine and arguable case calling for answers from the defendants. One would have expected the defendants to provide these answers by producing the documents they used and obtained in procuring the tenders or the contracts with the government and evidence of delivery of the goods or services. Contracts of these magnitude if genuine or regular, must have been accompanied with documentations.
I have considered the defendants’ explanation that the funds in the joint account were substantially accumulated from Hotel Gloste’s business and fixed deposits dating back to 2017. It is important to note that the plaintiff’s contention is that the irregular procurements date back to 2018. The bank account statement produced by the defendants as exhibit ‘SL-4’ shows that at the end of 2017, the account had a credit balance of Kshs 18,967,667.00. At paragraph 13 of the replying affidavit, the 1 st defendant has given an extract of how the money moved from the hotel business to a fixed deposit account which ultimately grew to Kshs 185,784,609.00 as at 15-08-2022. He explains that Kshs 184,000,000.00 which was part of the investment was moved to the 1 st and 2 nd defendants’ joint fixed deposit account.
The above explanation may be so and a good and commendable business acumen but what I find lacking is explanation of the source of the funds used for setting up the hotel and the legitimate income associated with the same business noting that the statement starts too close to the period of interests and with not so much credit balance as compared to what the plaintiff claims to have been irregular payments. The defendants have not placed before the court books of accounts to show that the said hotel legitimately generated that kind of income.
Where a defendant is faced with allegations of unexplained wealth or assets suspected to have been obtained through corrupt conduct, they have a duty to lay before the court plausible explanation of their earnings. The defendants in this matter have not broken down the hotel’s periodic income and in my view, this point calls for proper interrogation in a full hearing. Although this suit is not brought under Section 55 of the Anti-Corruption and Economic Crimes Act, the concept of unexplained wealth in these interlocutory proceedings is relevant since the circumstances of the case suggest generation of income from corrupt conduct.
In Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] KECA 783 (KLR) , the Court of Appeal held that;
‘The concept of “unexplained assets” and its forfeiture under Sections 26 and 55 (2) of ACECA is neither founded on criminal proceedings nor conviction for a criminal offence or economic crime. Sections 26 and 55 of ACECA are non-conviction based civil forfeiture provisions. The Sections are activated as an action in rem against the property itself. The Sections require the Anti- Corruption Commission to prove on balance of probability that an individual has assets disproportionate to his/her legitimately known sources of income. Section 55 (2) of the Act make provision for evidentiary burden which is cast upon the person under investigation to provide satisfactory explanation to establish the legitimate origin of his/her assets. This evidentiary burden is a dynamic burden of proof requiring one who is better able to prove a fact to be the one to prove it.’
The defendants’ explanation concerning the transfer of Kshs.33,332,000.00 does not, at this stage, completely sever the connection between the money and the subject matter of the suit. Indeed, the 1 st respondent expressly acknowledges receipt of the money from the 7 th defendant. His explanation is that the money represented repayment of financing extended to that company. Whether the underlying transaction was genuinely a private financing arrangement and whether the funds used in that transaction were themselves legitimate are matters requiring evidential examination at the trial.
It is worth to note that the financing agreement is dated 2 nd October 2023 while the irregular payments are claimed to have started in 2018 and ran through to 2024. If indeed the said payments were irregular, it would mean that what was loaned or financed to the 7 th defendant was part of those irregular payments and therefore recoverable. In that regard, the fact that the loan was paid back to the 1 st defendant does not remove the said money from the realm of recovery. At this stage, the court is not able to separate the funds from the rest since the same seemingly intermingled with unclean funds. Where a person intermingles legitimately acquired assets with dirty ones, they must bear the consequences and the risk of losing the clean part of it.
To escape that dragnet, the defendants must place cogent evidence and articulately separate the legitimate assets from corrupt practices. Even then, the court notes that the ultimate goal is to recover what the government lost to corruption and the defendant if found liable for the loss would have to pay from both his legitimate and illegitimate streams as the final judgement of the court will be a liquidated claim. Based on the above, I hold that the plaintiff has established a prima fascie case with a probability of success.
The second consideration is whether the applicant is likely to suffer irreparable loss if the funds are released. The applicant seeks recovery of Kshs. 1,237,578,496/- allegedly lost through fraudulent and irregular procurement transactions. If the funds presently preserved are withdrawn or transferred to third parties, the applicant may be compelled, in the event of success after trial, to undertake further tracing and recovery proceedings. More importantly, the subject matter of the present proceedings may be substantially dissipated before this court determines the parties’ respective rights.
The plaintiff brings this suit on behalf of the public and risking possibility of further tracing would amount to more spending of public coffers. This will go against the constitutional requirement that public funds should be used in a prudent manner. In my view, even where damages are quantifiable or the claim is liquidated, the court should consider adequacy of what may ultimately be recovered especially where the matter involves public funds or property.
In Ethics & Anti Corruption Commission v Moses Kasaine Lenolkulal [2019] KEHC 1159 (KLR) the court recognised the danger of releasing funds in similar circumstances by holding that: -
‘ It is true that the applicant will suffer irreparable damage or loss should the properties be disposed or funds withdrawn as there will be nothing left to forfeit and recover in the event that the suit succeeds. It is therefore equitable that the orders sought seeking to preserve the properties and funds to issue as the defendant will not suffer any prejudice by so preserving them.’
I in the circumstances, find that the loss the public represented by the plaintiff is likely to suffer if the application is not granted, though reparable is substantial and identified funds deserve protection. Having found that the plaintiff has established a prima fascie case with a probability of success and that funds would likely not be recoverable in the evident they are withdrawn, I do not have to venture into the balance of convenience. Nevertheless, even if I were wrong on the first two principles, I find that the balance of convenience also favours granting orders of injunction. The public interest in ensuring that the alleged proceeds of corruption remain available for recovery if the claim succeeds outweighs the inconvenience occasioned to the defendants by temporary restriction of access to the disputed funds.
The first defendant has sought through his replying affidavit that this court varies preservation orders in respect of the 3 rd defendant. First, an application for review or variation cannot be done through a replying affidavit. It can only be done through a substantive application duly filed, served and prosecuted. Secondly, the orders of preservation dated 7 th April 2026 were in the interim pending hearing and determination of the application and as such, since this application has been argued substantively, the resultant ruling cannot purport to review or vary them. The defendants’ remedy lay in opposing the application which right they have exercised and which opposition I have considered and reached conclusion as indicated in the foregoing paragraphs.
The defendants argue that some funds were deposited in the account outside the period of interest and that the 3 rd defendant needs the funds to pay taxes. The defendants’ exhibit ‘LS-1’ is a tax demand dated 9-04-2026 which calls for taxes going back to October 2024. These taxes are shown to have accrued from business with the government among others. If the payment by the government were not payable in the 1 st place, then it would mean that the taxes would not have been due. Further, tax demands are procedural and not determinate and in my view the 3 rd defendant is at liberty to deal with the demands without any threat to its business.
As I have stated elsewhere in this ruling, any funds however clean they are, which have intermingled with the suspected funds should be preserved pending the full hearing. That said, I find that the reasons advanced for review are not sufficient.
Final orders
In conclusion, I find that the plaintiff has met the threshold for granting of the application safe that I would order the costs of the same be in the cause. I note that both sides of the matter have expressed their willingness to fast track and expedite the hearing and disposal of the suit.
Accordingly, I make the following orders;
1. The 1 st , 2 nd and 3 rd defendants, their agents, servants, or any other person are hereby restricted and restrained from withdrawing, transferring, accessing or in any other way dealing with funds held in the below-listed bank accounts pending hearing and determination of this suit;
a. Kshs. 110,000,000.00 in fixed deposit account No. 0990385621366 held in Equity Bank, Lodwar Branch, in the name of Napeyok Suppliers and Contractors.
b. Kshs. 125,000,000.00 in fixed deposit account No. 09900385608223 held in Equity Bank, Lodwar Branch, in the name of Napeyok Suppliers and Contractors;
c. Kshs. 140,000,000.00 in fixed deposit account No. 0990386186169 held in Equity Bank, Lodwar Branch, in the name of Napeyok Suppliers and Contractors.
d. Kshs. 230,000,000/= held in fixed deposit a/c no. 01105913203003 Cooperative Bank Lodwar branch in the name of Kamais Juliah Ekaran.
e. Kshs. 90,500,000.00 in fixed deposit account No. 0990385579532 held in Equity Bank, Lodwar Branch, in the name of Napeyok Suppliers and Contractors.
f. Kshs.649,375.36 in account no. 0990273401035 held in Equity Bank, Lodwar Branch, in the name of Trabamo Investments Limited.
2. The defendants shall file and serve their defences, lists and bundles of documents and witnesses’ statements within the next fourteen (14) days.
3. The plaintiff shall file and serve reply to defence if need be, within seven (7) days from the date of service of the last of the defences.
4. This matter shall be fixed for pre-trial before this court on a date to be fixed after delivery of this ruling.
5. Costs of the application shall be in the cause.
Dated, signed and delivered at Nairobi this 18 th day of September 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence of Miss Kibogy holding brief for Miss Biwott for the plaintiff and Mr. Omamo for the defendants.
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