In this ruling, the parties will be referred to and identified as per the titles above. This court issued orders on 6 th March 2026 prohibiting liquidation, withdrawal, transfer, disposal or any dealing with funds or government securities held in Equity Investment Bank account number 147488-0004. The funds were said to be traced from embezzlement of Kshs 3.8 billion in public funds.
The gist of the application was that the 1 st respondent and two companies associated with it namely Smart Flow Travel Limited and Afromerch Travel Kenya Limited received over Kshs 3.8 billion from Sports, Arts and Social Development Fund (SASDF) and the State Department for Sports and Arts and in turn transferred over Kshs 82 million in kickbacks to public officials serving in the said institutions. It was suspected that part of these funds which were suspected to be proceeds of corruption were trailed to the account sought to be preserved.
By a notice of motion dated 2 nd April 2026 to which this ruling relates, the respondents prayed as follows;
1. Spent.
2. Spent.
3. This Honourable Court be pleased to discharge the ex-parte preservation order issued on 6 th March 2026 in respect of the Government Securities and/or funds held in Equity Investment Bank A/C no. 147488-0004 and all consequential orders thereto.
4. Alternatively, this Honourable Court be pleased to vary the preservation order issued on 6 th March 2026 in respect of the Government Securities and/or funds held in Equity Investment Bank A/C No. 147488-0004 on such terms as are just and in the interest of justice.
5. This Honourable Court be pleased to grant leave to the 1 st and 2 nd respondents/applicants to challenge preservation orders issued on 6 th March 2026 out of time, the 15-day period having lapsed on 21 st March 2026.
6. This Honourable Court do make any such further orders and issue any other relief it may deem just to grant in the interest of justice.
7. The costs of this application be provided.
The 2 nd respondent swore supporting affidavit dated 2 nd April 2026, supplementary affidavit dated 13 th April 2026 and further affidavit dated 6 th May 2026 in support of the application. The 2 nd respondent denied knowledge or involvement in the any corruption in the transaction in question and added that the orders were issued in bad faith as the frozen funds were not acquired using proceeds of corruption or through corrupt conduct.
In seeking to explain the delay in filing the application, the 2 nd respondent deponed that after being served with the preservation order in the evening of 6 th March 2026, their advocates wrote to the applicant requesting for copies of documents which the applicant had taken possession of following a raid in the 1 st respondent’s offices on 5 th November 2025. The respondents’ advocates did not receive response to their letter until 19 th March 2026 when the applicant supplied large volumes of documents which needed time to review and collate the relevant parts in support of their application. He therefore attributed the delay in bringing the application to the delay by the applicant in supplying the requested documents.
The deponent added that the respondents, Smart Flow Travel Limited and Afromerch Travel Kenya Limited are private entities providing lawful services to both public and private bodies, domestically and internationally and have not participated in the activities which the applicant is investigating. It added that the 1 st respondent, Smart Flow Travel Limited and Afromerch Travel Kenya Limited each maintain separate contractual relationships with SASDF which were established through fair and transparent tendering process for provision of air travel ticketing and related services.
It was also deponed that, the 1 st respondent was prequalified for provisions of the aforesaid services upon which a framework agreement was entered into on 4 th April 2023 which relationship was legitimate, fair and transparent. The 2 nd respondent went on to give the sequence of events leading to the award of the tenders in question and added that all payments received from SASDF by the 1 st respondent, Smart Flow Travel Limited and Afromerch Travel Kenya Limited and subsequently used to purchase the government securities in question were legitimate earnings for work performed and services provided to SASDF under the contracts. The affidavits go on to identify the specific payments by producing numerous local service orders, invoices and payment vouchers.
The deponent confirmed that the 1 st respondent received some payments from Afromerch Kenya Limited and Smart Flow Travels Limited which were traceable as payments from SASDF. He seeks to explain that the payments from these two entities to the 1 st respondent were refunds for costs incurred by the 1 st respondent on behalf of the two during execution of the contracts between the two and SASDF.
On the amounts received directly from SASDF, the respondents maintain that they were received through lawful means and processes being payments for services duly offered between April 2024 and August 2024 in execution of the framework agreement dated 4 th April 2023.
It is explained further that the aforesaid funds were channelled to the 1 st respondent’s fixed deposit account where payments from all clients are received. The deponent also explains that the preserved funds are used by the 1 st respondent in provision of services and in securing bank guarantees to the International Air Transport Association. The 2 nd respondent states further that the 1 st respondent pays airlines bills to IATA fortnightly using funds from other clients in order to maintain its license, remain operational and mitigate the risks associated with late payments by the government.
The deponent added that, the amount transferred to the investment account in question was channelled from the 1 st respondent’s fixed deposit account which was maintained for commercial purposes. These funds included payments from clients other than SASDF. He claims that they had explained the legitimacy of these funds in this court’s miscellaneous civil application number E048 of 2025.
It has also been pleaded that the funds in question are used by the 1 st respondent to secure bank guarantees and short-term overdraft loans to finance its air-tickets from airlines and support its operations as well as those of Afromerch Travel Kenya Limited and Smart Flow Travel Limited. The respondents add that the continued preservation orders place them at the risk of termination of their passenger sales agency agreement with IATA and loans obligations as well as risking the livelihoods of over 50 people employed by the 1 st respondent. The respondents also claim that they run the risk of litigation over breach of their ongoing contractual and statutory obligations.
The respondents have argued that the applicant obtained the preservation order by concealing material facts. In particular, the applicant did not demonstrate its preliminary investigations neither did it produce evidence of corruption involving or connected to the funds. They expressed fear that continued preservation will result to forfeiture of the government securities or funds causing substantial loss on their part. He argues that the three companies being distinct and separate legal entities, their collaboration does not amount to collusion in procurement processes or corruption.
In response to the application, the applicant filed an affidavit sworn by one of its investigators one Margaret Wambeti Ngari, on 29 th April 2026. She depones that this matter is related to this court’s miscellaneous civil application number E048 of 2025 as the two arise from the same investigations. She swore that, the applicant made all material disclosure while applying for the preservation orders and maintained that the respondents’ bank accounts are currently under investigations for involvement in embezzlement of public funds, bribery and payment of kickbacks to public officials and as such the finds therein are tainted and subject to recovery under Sections 11(1)(j) and 55 of Anti-Corruption and Economic Crimes Act.
She also reiterated that the applicant had demonstrated the flow of the funds from SASDF to the respondent’s account and subsequent investment in the government securities. She added that the applicant had obtained over 450 payment vouchers from SASDF and the State Department of Sports and it was in the process of analysing and reconciling the amounts therein with the funds received in the respondents’ accounts and thereafter undertake verification exercise with various institutions including SASDF to ascertain legitimacy of the funds paid to the 1 st respondents.
Margaret went on to give details of the reasons for suspecting corruption in the transactions including failure by the procuring entities to comply with Public Procurement and Assets Disposal Act. She added that the level of association between the 1 st respondent, Smart Flow Travel Limited and Afromerch Travel Kenya Limited was a demonstration that their actions in procurement of the services in question undermined the constitutional principles of fair, equitable, transparent, competitive and cost effective procurement under Article 227 of the Constitution.
She stated further that the funds in the investment account was not the 1 st respondent’s working capital as it complied with IATA obligations even before the investment. She also pointed out that prior to transfer of the funds from the fixed deposit account, the 1 st respondent would comply with the obligations and after the transfer, it continued to comply while simultaneously maintaining the government securities. She concluded by stating that, the voluminous investigations which covers a period of five years will require time to complete and as such, discharging the order at this stage would impede proper and thorough conclusion of the investigative process.
Determination
The application was argued by way of written submissions. I have read and considered the submissions of the respondents dated 6 th May 2026 and those of the applicant dated 2 nd June 2026. None of the parties addressed me on the prayer for enlargement of time. The applicant did not even in its replying affidavit seem to be opposed to that prayer. In the circumstances, I will not belabour on this point there having been an explanation by the respondents on the cause of the delay. I will accept that explanation and proceed to determine the application on its merits.
Having said the above, I harbour opinion that the only issue for determination is whether there are enough grounds to discharge the preservation order. This issue will be settled in the affirmative if the respondents succeed in convincing the court that the funds in question were not proceeds of corruption which can be achieved if there is demonstration that the facts and evidence presented by the applicant at the time the preservation order was issued were not enough to lay basis for reasonable suspicion that the funds were proceeds or product of acts of corruption.
The above is the purport of Section 56(5) of ACECA under which the application has been brought. The Section provides that;
‘The court may discharge or vary an order under subsection (4) only if the court is satisfied, on the balance of probabilities, that the property in respect of which the order is discharged or varied was not acquired as a result of corrupt conduct.’
I am persuaded by the position taken by my sister Honourable Lady Justice R.E Ougo in Ethics and Anti-Corruption Commission v Turkenya Tours and Safaris Limited & 4 others [2026] KEHC 6222 (KLR) where she held as follows;
‘To discharge this burden, the aggrieved party must show that, in issuing the ex parte orders under section 56(1) of the Act, the court failed, in some manner, to scrutinise the evidence before it, thereby giving rise to a reasonable suspicion that the property was obtained corruptly. That evidence must be foundational and not based on mere conjecture.’
The respondents have given detailed explanations and averments to show that the money which was utilised in purchasing the government securities was legitimately acquired through a lawful procurement process. They have done this by explaining and exhibiting documents in an attempt to show that the 1 st respondent and the other two related companies were lawfully pre-qualified for provision of air ticketing services. There is no dispute that the three companies were pre-qualified to do so. What is in dispute is that the award of the specified tenders followed the due process and whether the services were actually rendered.
The respondents have argued that the many local service orders, invoices and payment vouchers they have produced were genuine and that the applicant did not adduce evidence to show that any of them was a forgery. In my view, there has been no allegation of forgery of any of the said documents. What I understand to be the applicant’s case is that, the payments were irregular by virtue of flawed procurement process and that they involved kickbacks and bribing of the public officers who handled and processed them. It would not therefore matter at this stage whether the documents were forgeries or not. It is also worthy to note that the investigations are said to be ongoing and the fact that the applicant has deponed that its investigators are still analysing the documents, it would be too early to speak of the genuineness or correctness of their contents.
The respondents have also expressed fear that the continued preservation may lead to forfeiture and deprivation of their property. They argue that continuance of the order amounts to deprivation of their property contrary to Article 40 of the Constitution. Section 56(1) of Anti-Corruption and Economic Crimes Aact (hereinafter referred to as ‘ACECA’) does not anticipate indefinite orders of preservation or determinate forfeiture orders. It provides a temporary measure which does not affect the ownership of the preserved assets but maintains the status quo for a defined period to avoid dissipation of the suspected assets. The preserved assets remain the property of the respondents until such a time as the court would issue an order of forfeiture in a main suit under Sections 11((1)(j) and 55 of the ACECA or further orders of the court. This does not in my view amount to arbitrary deprivation of the property as argued by the respondents. The owner of the property is given opportunity to defend the ownership once the main suit is filed if at all.
Honourable Justice J. Wakiaga held the same position as I have held above in Assets Recovery Agency v Joyce Teresia Akinyi Ochieng [2021] KEHC 9573 (KLR) where he held that;
‘ It is at the forfeiture stage of the proceeding, when the person affected with the order is required to show that the property was legally obtained, as supported by the evidence of his source of income as was stated in the south African case of NATIONAL DIRECTOR OF PROSECUTIONS v MOHAMED 2002 SA843 where the court stated:-
“There is however a defence at the second stage of the proceedings when forfeiture is sought by the state. An owner can at that stage claim that he or she obtained the property legally and for value and that he or she neither knew that property constituted the proceeds of crime or had been an instrumentally in an offence.”
Both parties have mentioned existence of this court’s miscellaneous civil application number E048 of 2025. The respondent claims that the issue the applicant raised and facts used in obtaining the preservation orders in this matter are the same as and have been addressed in the said application. I have had a look at the said application in which preservation orders were issued on 12 th November 2025 prompting the respondents therein who are the respondents in this matter, the 1 st respondent’s aforementioned two related companies and one Caroline Muthoni Kairuki to make an application to discharge the extension which application was dismissed on 7 th May 2026. I have noted that the said application and orders therein do not include or involve the account the subject of this matter neither does this matter involve the accounts in the said application.
However, the investigations in both matters involve the alleged loss of Kshs 3.8 billion which is unusual as the applicant has mandate and is within its authority to pursue the funds irrespective who is the current holder of the same. I say so because in civil forfeiture proceedings, the applicant and the court are interested in the property wherever it is found rather than the perpetrator of the offence.
The respondents’ elaborate explanation of how the 1 st respondent and the two other companies were awarded the tenders and paid cannot be determined or litigated at this stage. While considering whether or not to grant a preservation order, the court does not turn itself to an investigative body or seek to determine whether there is tight evidence of corrupt conduct. The threshold at this stage is grounds to reasonably suspect that the property sought to be preserved is a product of corrupt conduct. In the matter before me, the respondents admitted and confirmed that the 1 st respondent received payments from the SASDF and its sister companies which also received money from SASDF. They also confirmed that these funds are traced to the account which was frozen by the orders I issued on 6 th March 2026. It is not in doubt that these funds are under investigations.
The respondents also acknowledged that its two sister companies may not have had the capacity to undertake the contract which led to the 1 st respondent chipping in. There is also an acknowledgement that the procurement of the services involved the three sister companies which make the applicant suspect that there were underhand dealings thereby making the procurement process flawed. The respondents have countered the allegation of flawed process by stating that the companies were distinct entities and any commercial transactions between them should not concern the applicant.
In my view, I cannot conclusively deal with the above issues at this stage and considering the fact that there are claims of bribery and kickbacks which are being investigated and to which the respondents have not replied in this application, I believe that there were reasonable grounds to suspect that there was corruption involving the public officers in the institutions concerned and the respondents and the two other companies.
Finally. the respondents have also submitted and averred that the applicant has not tabled conclusive evidence of corruption. In support of this, the respondents have referred me to Ethics and Anti-Corruption Commission v Oregonia Supplies Services & Another [2016] KEHC 5161 (KLR) where the court made a finding that the applicant had not produced documents to tie the deposits in question to any form of payment from the government entities or established that the deposits were proceeds of economic crimes. This authority is not applicable in the matter before me because the applicant herein has tied the government securities in question to the questionable payments from SASDF which has been acknowledged by the respondents. Further, I take position that preservation orders do not depend on whether or not the investigations are complete or whether there is water tight evidence of corruption. The test is reasonable grounds of suspicion and the standard of proof is on a balance of probabilities.
While considering whether the application for preservation orders is merited, the court is not obligated to weigh the evidence tendered by the applicant as if it were determining the existence or proof of corruption in finality. All that is required is presence of circumstances that raise suspicion of corrupt conduct. In Ethics and Anti-Corruption Commission v Equity Bank Kenya & another [2017] KEHC 6089 (KLR) the court held that;
‘It is important to note at this point that the Kenya Gazette Supplement No. 197 (Acts No. 47) in Section 24 of the Bribery Act, 2016 amended Section 56(1) of the Anti-Corruption and Economic Crimes Act, 2003 by deleting the words “on evidence” and substituting therefor the words “if it is satisfied that there are reasonable grounds to suspect.”
The law therefore stipulates that the High Court may make an order prohibiting the transfer, or disposal of, or other dealing with property if it is satisfied that there are reasonable grounds to suspect that the property was acquired as a result of corrupt conduct and not on sufficient evidence as was the position earlier.
Going by what I have stated above, I do not think that the respondents have established enough grounds to justify discharge of the preservation orders. In consequence, the application dated 2 nd April 2026 is not merited. The same is dismissed with no orders as to cots.
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 for the plaintiff and Mr. Omulloh for the 1 st and 2 nd defendants.
2 | Page
The gist of the application was that the 1 st respondent and two companies associated with it namely Smart Flow Travel Limited and Afromerch Travel Kenya Limited received over Kshs 3.8 billion from Sports, Arts and Social Development Fund (SASDF) and the State Department for Sports and Arts and in turn transferred over Kshs 82 million in kickbacks to public officials serving in the said institutions. It was suspected that part of these funds which were suspected to be proceeds of corruption were trailed to the account sought to be preserved.
By a notice of motion dated 2 nd April 2026 to which this ruling relates, the respondents prayed as follows;
1. Spent.
2. Spent.
3. This Honourable Court be pleased to discharge the ex-parte preservation order issued on 6 th March 2026 in respect of the Government Securities and/or funds held in Equity Investment Bank A/C no. 147488-0004 and all consequential orders thereto.
4. Alternatively, this Honourable Court be pleased to vary the preservation order issued on 6 th March 2026 in respect of the Government Securities and/or funds held in Equity Investment Bank A/C No. 147488-0004 on such terms as are just and in the interest of justice.
5. This Honourable Court be pleased to grant leave to the 1 st and 2 nd respondents/applicants to challenge preservation orders issued on 6 th March 2026 out of time, the 15-day period having lapsed on 21 st March 2026.
6. This Honourable Court do make any such further orders and issue any other relief it may deem just to grant in the interest of justice.
7. The costs of this application be provided.
The 2 nd respondent swore supporting affidavit dated 2 nd April 2026, supplementary affidavit dated 13 th April 2026 and further affidavit dated 6 th May 2026 in support of the application. The 2 nd respondent denied knowledge or involvement in the any corruption in the transaction in question and added that the orders were issued in bad faith as the frozen funds were not acquired using proceeds of corruption or through corrupt conduct.
In seeking to explain the delay in filing the application, the 2 nd respondent deponed that after being served with the preservation order in the evening of 6 th March 2026, their advocates wrote to the applicant requesting for copies of documents which the applicant had taken possession of following a raid in the 1 st respondent’s offices on 5 th November 2025. The respondents’ advocates did not receive response to their letter until 19 th March 2026 when the applicant supplied large volumes of documents which needed time to review and collate the relevant parts in support of their application. He therefore attributed the delay in bringing the application to the delay by the applicant in supplying the requested documents.
The deponent added that the respondents, Smart Flow Travel Limited and Afromerch Travel Kenya Limited are private entities providing lawful services to both public and private bodies, domestically and internationally and have not participated in the activities which the applicant is investigating. It added that the 1 st respondent, Smart Flow Travel Limited and Afromerch Travel Kenya Limited each maintain separate contractual relationships with SASDF which were established through fair and transparent tendering process for provision of air travel ticketing and related services.
It was also deponed that, the 1 st respondent was prequalified for provisions of the aforesaid services upon which a framework agreement was entered into on 4 th April 2023 which relationship was legitimate, fair and transparent. The 2 nd respondent went on to give the sequence of events leading to the award of the tenders in question and added that all payments received from SASDF by the 1 st respondent, Smart Flow Travel Limited and Afromerch Travel Kenya Limited and subsequently used to purchase the government securities in question were legitimate earnings for work performed and services provided to SASDF under the contracts. The affidavits go on to identify the specific payments by producing numerous local service orders, invoices and payment vouchers.
The deponent confirmed that the 1 st respondent received some payments from Afromerch Kenya Limited and Smart Flow Travels Limited which were traceable as payments from SASDF. He seeks to explain that the payments from these two entities to the 1 st respondent were refunds for costs incurred by the 1 st respondent on behalf of the two during execution of the contracts between the two and SASDF.
On the amounts received directly from SASDF, the respondents maintain that they were received through lawful means and processes being payments for services duly offered between April 2024 and August 2024 in execution of the framework agreement dated 4 th April 2023.
It is explained further that the aforesaid funds were channelled to the 1 st respondent’s fixed deposit account where payments from all clients are received. The deponent also explains that the preserved funds are used by the 1 st respondent in provision of services and in securing bank guarantees to the International Air Transport Association. The 2 nd respondent states further that the 1 st respondent pays airlines bills to IATA fortnightly using funds from other clients in order to maintain its license, remain operational and mitigate the risks associated with late payments by the government.
The deponent added that, the amount transferred to the investment account in question was channelled from the 1 st respondent’s fixed deposit account which was maintained for commercial purposes. These funds included payments from clients other than SASDF. He claims that they had explained the legitimacy of these funds in this court’s miscellaneous civil application number E048 of 2025.
It has also been pleaded that the funds in question are used by the 1 st respondent to secure bank guarantees and short-term overdraft loans to finance its air-tickets from airlines and support its operations as well as those of Afromerch Travel Kenya Limited and Smart Flow Travel Limited. The respondents add that the continued preservation orders place them at the risk of termination of their passenger sales agency agreement with IATA and loans obligations as well as risking the livelihoods of over 50 people employed by the 1 st respondent. The respondents also claim that they run the risk of litigation over breach of their ongoing contractual and statutory obligations.
The respondents have argued that the applicant obtained the preservation order by concealing material facts. In particular, the applicant did not demonstrate its preliminary investigations neither did it produce evidence of corruption involving or connected to the funds. They expressed fear that continued preservation will result to forfeiture of the government securities or funds causing substantial loss on their part. He argues that the three companies being distinct and separate legal entities, their collaboration does not amount to collusion in procurement processes or corruption.
In response to the application, the applicant filed an affidavit sworn by one of its investigators one Margaret Wambeti Ngari, on 29 th April 2026. She depones that this matter is related to this court’s miscellaneous civil application number E048 of 2025 as the two arise from the same investigations. She swore that, the applicant made all material disclosure while applying for the preservation orders and maintained that the respondents’ bank accounts are currently under investigations for involvement in embezzlement of public funds, bribery and payment of kickbacks to public officials and as such the finds therein are tainted and subject to recovery under Sections 11(1)(j) and 55 of Anti-Corruption and Economic Crimes Act.
She also reiterated that the applicant had demonstrated the flow of the funds from SASDF to the respondent’s account and subsequent investment in the government securities. She added that the applicant had obtained over 450 payment vouchers from SASDF and the State Department of Sports and it was in the process of analysing and reconciling the amounts therein with the funds received in the respondents’ accounts and thereafter undertake verification exercise with various institutions including SASDF to ascertain legitimacy of the funds paid to the 1 st respondents.
Margaret went on to give details of the reasons for suspecting corruption in the transactions including failure by the procuring entities to comply with Public Procurement and Assets Disposal Act. She added that the level of association between the 1 st respondent, Smart Flow Travel Limited and Afromerch Travel Kenya Limited was a demonstration that their actions in procurement of the services in question undermined the constitutional principles of fair, equitable, transparent, competitive and cost effective procurement under Article 227 of the Constitution.
She stated further that the funds in the investment account was not the 1 st respondent’s working capital as it complied with IATA obligations even before the investment. She also pointed out that prior to transfer of the funds from the fixed deposit account, the 1 st respondent would comply with the obligations and after the transfer, it continued to comply while simultaneously maintaining the government securities. She concluded by stating that, the voluminous investigations which covers a period of five years will require time to complete and as such, discharging the order at this stage would impede proper and thorough conclusion of the investigative process.
Determination
The application was argued by way of written submissions. I have read and considered the submissions of the respondents dated 6 th May 2026 and those of the applicant dated 2 nd June 2026. None of the parties addressed me on the prayer for enlargement of time. The applicant did not even in its replying affidavit seem to be opposed to that prayer. In the circumstances, I will not belabour on this point there having been an explanation by the respondents on the cause of the delay. I will accept that explanation and proceed to determine the application on its merits.
Having said the above, I harbour opinion that the only issue for determination is whether there are enough grounds to discharge the preservation order. This issue will be settled in the affirmative if the respondents succeed in convincing the court that the funds in question were not proceeds of corruption which can be achieved if there is demonstration that the facts and evidence presented by the applicant at the time the preservation order was issued were not enough to lay basis for reasonable suspicion that the funds were proceeds or product of acts of corruption.
The above is the purport of Section 56(5) of ACECA under which the application has been brought. The Section provides that;
‘The court may discharge or vary an order under subsection (4) only if the court is satisfied, on the balance of probabilities, that the property in respect of which the order is discharged or varied was not acquired as a result of corrupt conduct.’
I am persuaded by the position taken by my sister Honourable Lady Justice R.E Ougo in Ethics and Anti-Corruption Commission v Turkenya Tours and Safaris Limited & 4 others [2026] KEHC 6222 (KLR) where she held as follows;
‘To discharge this burden, the aggrieved party must show that, in issuing the ex parte orders under section 56(1) of the Act, the court failed, in some manner, to scrutinise the evidence before it, thereby giving rise to a reasonable suspicion that the property was obtained corruptly. That evidence must be foundational and not based on mere conjecture.’
The respondents have given detailed explanations and averments to show that the money which was utilised in purchasing the government securities was legitimately acquired through a lawful procurement process. They have done this by explaining and exhibiting documents in an attempt to show that the 1 st respondent and the other two related companies were lawfully pre-qualified for provision of air ticketing services. There is no dispute that the three companies were pre-qualified to do so. What is in dispute is that the award of the specified tenders followed the due process and whether the services were actually rendered.
The respondents have argued that the many local service orders, invoices and payment vouchers they have produced were genuine and that the applicant did not adduce evidence to show that any of them was a forgery. In my view, there has been no allegation of forgery of any of the said documents. What I understand to be the applicant’s case is that, the payments were irregular by virtue of flawed procurement process and that they involved kickbacks and bribing of the public officers who handled and processed them. It would not therefore matter at this stage whether the documents were forgeries or not. It is also worthy to note that the investigations are said to be ongoing and the fact that the applicant has deponed that its investigators are still analysing the documents, it would be too early to speak of the genuineness or correctness of their contents.
The respondents have also expressed fear that the continued preservation may lead to forfeiture and deprivation of their property. They argue that continuance of the order amounts to deprivation of their property contrary to Article 40 of the Constitution. Section 56(1) of Anti-Corruption and Economic Crimes Aact (hereinafter referred to as ‘ACECA’) does not anticipate indefinite orders of preservation or determinate forfeiture orders. It provides a temporary measure which does not affect the ownership of the preserved assets but maintains the status quo for a defined period to avoid dissipation of the suspected assets. The preserved assets remain the property of the respondents until such a time as the court would issue an order of forfeiture in a main suit under Sections 11((1)(j) and 55 of the ACECA or further orders of the court. This does not in my view amount to arbitrary deprivation of the property as argued by the respondents. The owner of the property is given opportunity to defend the ownership once the main suit is filed if at all.
Honourable Justice J. Wakiaga held the same position as I have held above in Assets Recovery Agency v Joyce Teresia Akinyi Ochieng [2021] KEHC 9573 (KLR) where he held that;
‘ It is at the forfeiture stage of the proceeding, when the person affected with the order is required to show that the property was legally obtained, as supported by the evidence of his source of income as was stated in the south African case of NATIONAL DIRECTOR OF PROSECUTIONS v MOHAMED 2002 SA843 where the court stated:-
“There is however a defence at the second stage of the proceedings when forfeiture is sought by the state. An owner can at that stage claim that he or she obtained the property legally and for value and that he or she neither knew that property constituted the proceeds of crime or had been an instrumentally in an offence.”
Both parties have mentioned existence of this court’s miscellaneous civil application number E048 of 2025. The respondent claims that the issue the applicant raised and facts used in obtaining the preservation orders in this matter are the same as and have been addressed in the said application. I have had a look at the said application in which preservation orders were issued on 12 th November 2025 prompting the respondents therein who are the respondents in this matter, the 1 st respondent’s aforementioned two related companies and one Caroline Muthoni Kairuki to make an application to discharge the extension which application was dismissed on 7 th May 2026. I have noted that the said application and orders therein do not include or involve the account the subject of this matter neither does this matter involve the accounts in the said application.
However, the investigations in both matters involve the alleged loss of Kshs 3.8 billion which is unusual as the applicant has mandate and is within its authority to pursue the funds irrespective who is the current holder of the same. I say so because in civil forfeiture proceedings, the applicant and the court are interested in the property wherever it is found rather than the perpetrator of the offence.
The respondents’ elaborate explanation of how the 1 st respondent and the two other companies were awarded the tenders and paid cannot be determined or litigated at this stage. While considering whether or not to grant a preservation order, the court does not turn itself to an investigative body or seek to determine whether there is tight evidence of corrupt conduct. The threshold at this stage is grounds to reasonably suspect that the property sought to be preserved is a product of corrupt conduct. In the matter before me, the respondents admitted and confirmed that the 1 st respondent received payments from the SASDF and its sister companies which also received money from SASDF. They also confirmed that these funds are traced to the account which was frozen by the orders I issued on 6 th March 2026. It is not in doubt that these funds are under investigations.
The respondents also acknowledged that its two sister companies may not have had the capacity to undertake the contract which led to the 1 st respondent chipping in. There is also an acknowledgement that the procurement of the services involved the three sister companies which make the applicant suspect that there were underhand dealings thereby making the procurement process flawed. The respondents have countered the allegation of flawed process by stating that the companies were distinct entities and any commercial transactions between them should not concern the applicant.
In my view, I cannot conclusively deal with the above issues at this stage and considering the fact that there are claims of bribery and kickbacks which are being investigated and to which the respondents have not replied in this application, I believe that there were reasonable grounds to suspect that there was corruption involving the public officers in the institutions concerned and the respondents and the two other companies.
Finally. the respondents have also submitted and averred that the applicant has not tabled conclusive evidence of corruption. In support of this, the respondents have referred me to Ethics and Anti-Corruption Commission v Oregonia Supplies Services & Another [2016] KEHC 5161 (KLR) where the court made a finding that the applicant had not produced documents to tie the deposits in question to any form of payment from the government entities or established that the deposits were proceeds of economic crimes. This authority is not applicable in the matter before me because the applicant herein has tied the government securities in question to the questionable payments from SASDF which has been acknowledged by the respondents. Further, I take position that preservation orders do not depend on whether or not the investigations are complete or whether there is water tight evidence of corruption. The test is reasonable grounds of suspicion and the standard of proof is on a balance of probabilities.
While considering whether the application for preservation orders is merited, the court is not obligated to weigh the evidence tendered by the applicant as if it were determining the existence or proof of corruption in finality. All that is required is presence of circumstances that raise suspicion of corrupt conduct. In Ethics and Anti-Corruption Commission v Equity Bank Kenya & another [2017] KEHC 6089 (KLR) the court held that;
‘It is important to note at this point that the Kenya Gazette Supplement No. 197 (Acts No. 47) in Section 24 of the Bribery Act, 2016 amended Section 56(1) of the Anti-Corruption and Economic Crimes Act, 2003 by deleting the words “on evidence” and substituting therefor the words “if it is satisfied that there are reasonable grounds to suspect.”
The law therefore stipulates that the High Court may make an order prohibiting the transfer, or disposal of, or other dealing with property if it is satisfied that there are reasonable grounds to suspect that the property was acquired as a result of corrupt conduct and not on sufficient evidence as was the position earlier.
Going by what I have stated above, I do not think that the respondents have established enough grounds to justify discharge of the preservation orders. In consequence, the application dated 2 nd April 2026 is not merited. The same is dismissed with no orders as to cots.
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 for the plaintiff and Mr. Omulloh for the 1 st and 2 nd defendants.
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