INTRODUCTION
1. This Ruling is in respect of a Notice of Motion expressed to be brought under Article 165 (6) & (7) of the Constitution and section 362 of the Criminal Procedure Code and all the other enabling provisions of the law.
2. The applicant moved this court for orders that: -
a). This matter be certified urgent and that the same be heard ex-parte in the first instance. ( spent )
`b). Pending the hearing and determination of the application inter partes there be a stay of the proceedings and execution of the orders of the Chief Magistrates Court Milimani issued on 29th January 2026 in Miscellaneous Criminal Application No E403 of 2026 save that funds domiciled in the bank accounts held by the 6th Respondent the below listed accounts be preserved in the meantime:
i). Lenana Innovative Solutions Limited Account No 6580014351 domiciled at Ecobank Kenya
ii). Lenana Innovative Solutions Limited Account No 6580017054 domiciled at Ecobank Kenya
iii). Lenana Innovative Solutions Limited Account No 6580014708 domiciled at Ecobank Kenya.
c). The Honourable Court be pleased to call and examine the record in The Magistrates Court at Milimani Miscellaneous Criminal Application No E403 of 2026 purposes of satisfying itself of the correctness, legality or propriety of the orders issued on 29th January 2026 and the entire proceedings thereto.
d). The Honourable Court be pleased to review/vary and or set aside the orders of the Chief Magistrate Court at Milimani issued on 29th January 2026 in Miscellaneous Criminal Application No E403 of 2026.
e). An order of permanent injunction do issue restraining the Respondents whether by themselves, their agents or any other person acting on their behalf from investigating the Applicant herein, its Directors, its bank accounts held with the 5th Respondent herein, or records held by the 7th Respondent herein or any other accounts or records premised on the complaint letter dated 15th December 2025 by the 3rd and 4th Respondents herein.
f). The Honourable court be pleased to issue an order of anonymization when the matter is reported at the Kenya Law Reports
g). The costs of this application be borne by the Respondents.
3. In support of the application the applicant raised the following grounds;-
i). The Applicant and the 3rd and 4th Respondents entered into lending agreements secured by 2 promissory notes dated 21st December 2022 and 4th January 2024.
ii). Within the pendency of the performance of the agreements, the Applicant became aware that the 3rd and 4th Respondents were not registered as either foreign company, local company nor did they have licensing from the Central Bank of Kenya or have Kenya Revenue Authority Personal Identification Numbers (PIN) to allow them to lend in Kenya ostensibly operating illegally in Kenya.
iii). Noting the illegality, the Applicant filed Constitutional Petition number E078 of 2025 at the High Court of Kenya at Nairobi and obtained conservatory orders staying the performance of the contracts pending the hearing and determination of the Petition.
iv). The 3rd and 4th Respondents thereafter attempted to discharge the court orders vide their application dated 15th April 2025 seeking to have the matter referred to Singapore for Arbitration which application was dismissed vide a ruling dated 14th August 2025.
v). Being dissatisfied by the ruling the 3rd and 4th Respondent filed an appeal at the Court of Appeal vide Civil Application no E645 of 2025 which is due for hearing on 16th February 2025 interim orders ex-parte having been declined.
vi). Noting that they had failed in their quests, the 3rd and 4th Respondents filed a complaint with the 1st Respondent herein regarding the same contracts subject to questioning on legality precipitating the 1st and 2nd Respondents to file Misc Application E403 of 2026 at the 5th Respondent herein.
vii). The 5th Respondent issued ex-parte orders on 29th January 2026 amongst other things preserving the funds in the accounts of the Applicant and granting the Respondents unlimited access to the accounts and transactions of the Applicant herein vide Miscellaneous Criminal Application No E403 of 2026.
viii). The said orders were issued ultra vires as they are issued by a subordinate court whilst the same substratum subject of the application is within the jurisdiction of the superior court and the court of appeal.
ix) The Application and the complaint are equally untenable in law as they are made by an entity that has no legal capacity to do so.
x). The orders issued are further in violation of the Applicant's constitutional and administrative rights as the Applicant was not issued with any notice to produce the documents and refused to do so nor have the Respondents demonstrated why it was imperative for the orders to issue.
xi). The application is further procedurally and legally untenable as the Investigating officer prima facie indicates in his affidavit that the matter at issue is civil in nature relating to a lender and borrower relationship devoid of any criminal elements.
xii). The Application is further an abuse of the court process as the Respondents are now using the courts as a tool to coerce the Applicant into withdrawing the Constitutional Petition filed against the 3rd and 4th Respondents which the court has prima facie found merit in.
xiii). The orders of the lower court and indeed the commencement of the criminal process has been done irrationally and unlawfully by the 1st to 5th Respondents to the detriment of the Applicant herein.
xiv). The impugned decision herein was further arrived at in a manner that was procedurally unfair as the Respondents did not avail to the applicant an opportunity to volunteer the information required or to address the court on the subsistence of stay orders in the High Court despite the respondents being aware of the same.
xv). It was therefore necessary to stay all the proceedings in the lower courts save to preserve the funds in the bank accounts pending the hearing and determination of the application inter partes.
xvi). lt was further necessary for this Honourable court to call upon into the record the proceedings before the Chief Magistrates Court at Milimani, Miscellaneous Criminal Application No E403 of 2026 to examine the correctness and to issue such other directives as appropriate.
xvii). That it is further necessary for this Honourable Court to substantively discharge the orders of the Chief Magistrate court at Milimani vide Miscellaneous Criminal Application No E403 of 2026
xviii). It is imperative for this Honourable court to issue injunctive orders against the Respondents herein barring them from abusing the criminal justice system and accordingly undertaking investigations or charging the Applicant herein or its directors on the premises of the complaint filed with the 1st Respondent by the 3rd and 4th Respondents on 15th December 2025.
xix). It is in the interest of justice that the orders sought be granted.
xx). The Respondents shall suffer no prejudice if the orders sought are granted.
4. The applicant further supported the application through the affidavit of one Joseph Kuria, a Director of the Applicant company.
5. The deponent attached the company resolution allowing him to depone to the affidavit thus establishing his locus in supporting the application.
6. The deponent deponed that on 29th January 2026, the 5th Respondent issued ex parte orders in Miscellaneous Criminal Application No. E403 of 2026, preserving the Applicant’s bank accounts and granting the Respondents unrestricted access to the Applicant’s accounts and transactions
7. The said orders arose from an application dated 29th January 2026 by the 1st and 2nd Respondents, supported by the affidavit of Chief Inspector Johnson Kioli.
8. The Deponent averred that the application was premised on a complaint allegedly lodged by the 3rd and 4th Respondents through Anjarwalla & Khanna Advocates on 15th December 2025, though the complaint letter was not annexed to the application.
9. The deponent asserted that the impugned orders are ultra vires, having been issued by a subordinate court despite the substratum of the dispute being actively before superior courts. Further, the application is said to be legally untenable, having been initiated by entities lacking legal capacity.
10. According to the deponent the orders complained of violate the Applicant’s constitutional and administrative rights, as no prior notice was issued requiring production of documents, nor was any refusal demonstrated.
11. Additionally, the investigating officer’s affidavit indicates that the dispute is fundamentally civil in nature, arising from a lender–borrower relationship devoid of criminal elements.
12. The Deponent further averred that the proceedings constitute an abuse of court process, intended to coerce the Applicant into withdrawing a pending Constitutional Petition against the 3rd and 4th Respondents, which has already been found prima facie meritorious.
13. By way of background, the Deponent states that the Applicant and the 3rd and 4th Respondents entered into lending agreements secured by two promissory notes dated 21st December 2022 and 4th January 2024, with the Respondents as lenders and the Applicant as borrower.
14. According to the applicant the Respondents, as lenders operating in Kenya, were under statutory obligations to comply with Kenyan law, including registration under the Companies Act, obtaining tax registration under the Tax Procedures Act, and securing licensing or exemption from the Central Bank of Kenya under the Banking Act and the Central Bank of Kenya Act.
15. The Applicant maintained that it performed its obligations until November 2024, when it sought restructuring of the loan. Subsequently, the Applicant instructed its advocates to conduct due diligence, which revealed that the 3rd and 4th Respondents were neither registered in Kenya nor licensed by the Central Bank of Kenya to provide credit facilities.
16. Following those findings, the Applicant filed Nairobi High Court Constitutional Petition No. E078 of 2025, seeking, inter alia:
• Declarations that Section 6(4) of the Movable Property Securities Act is unconstitutional;
• Declarations that the Respondents lack legal capacity to contract, register securities, and offer financial services in Kenya without compliance with statutory requirements;
• Nullification of the promissory notes, contracts, and securities;
• Cancellation of charges registered under the Movable Property Security Rights Act; and
• Costs and interests.
17. The Deponent states that the issues identified in the petition raise substantial public law questions regarding the legality of the transaction.
18. The Applicant filed an interlocutory application dated 19th February 2025, upon which the High Court issued conservatory orders suspending performance of the contractual obligations.
19. The 3rd and 4th Respondents subsequently applied on 15th April 2025 to set aside the orders and refer the matter to arbitration in Singapore; however, this application was dismissed on 14th August 2025.
20. Following the dismissal, the Respondents filed Civil Application No. E645 of 2025 and Civil Appeal No. E945 of 2025 before the Court of Appeal. Interim ex parte relief was declined, and the application was scheduled for hearing on 16th February 2026.
21. The Deponent asserts that the Respondents were fully aware of the ongoing proceedings in the High Court and Court of Appeal, and that any complaint lodged with the 1st Respondent without disclosure of these proceedings amounts to material non-disclosure and an attempt to circumvent superior court processes.
22. It is further contended that the institution of Miscellaneous Criminal Application No. E403 of 2026 was undertaken without disclosure of material facts; or was deliberately filed to mislead the subordinate court, rendering the resultant orders unlawful and liable to be quashed.
23. The Deponent reiterates that the subordinate court lacked jurisdiction, given that the substantive issues are already before superior courts, including the Constitutional Court.
24. The applicant avers that the Respondents’ actions are irrational, unlawful, and calculated to frustrate the Applicant, and amount to misuse of investigative and prosecutorial powers to exert pressure on the Applicant.
25. The Deponent contends that allowing the impugned proceedings to subsist alongside orders of the High Court and Court of Appeal undermines the constitutional hierarchy of courts and the administration of justice.
26. Accordingly, the Deponent urges the Court to:
i). Stay all proceedings in Miscellaneous Criminal Application No. E403 of 2026;
ii). Quash the orders issued on 29th January 2026; and
iii). Grant orders of prohibition as sought in the substantive application.
27. The deponent asserted that the application has been brought without delay, and that granting the orders sought is in the interest of justice.
APPLICANT’S CASE
28. The Applicant herein filed the present application seeking, among other reliefs, stay of proceedings and execution of the orders issued by the Chief Magistrate’s Court at Milimani on 29th January 2026 in Miscellaneous Criminal Application No. E403 of 2026, review and setting aside of the said orders, permanent injunctive orders restraining the Respondents from investigating the Applicant, its directors, bank accounts and related records on the basis of the complaint dated 15th December 2025, as well as orders for anonymization and costs.
29. The Applicant, however, expressed willingness for preservation of funds held in the specified Ecobank accounts pending determination of the application.
30. The genesis of the present application lies in proceedings initiated by the 1st and 2nd Respondents before the Chief Magistrate’s Court at Milimani through Miscellaneous Criminal Application No. E403 of 2026, where they obtained freezing orders and search warrants against the Applicant’s bank accounts.
31. The said application was premised on allegations that the Applicant was involved in possession of proceeds of crime and money laundering.
32. The complaint giving rise to those investigations was lodged by the 3rd and 4th Respondents, who alleged that they had advanced to the Applicant an aggregate sum of USD 17 Million for purposes of extending credit to women and small-scale farmers in Kenya.
33. The Applicant contended that the dispute between the parties is purely civil and commercial in nature, arising from lending agreements embodied in two promissory notes and accompanying documentary securities.
34. It is the Applicant’s position that it performed its obligations under the said agreements until conservatory orders were issued by the High Court in Constitutional Petition No. E078 of 2025 on 19th February 2025, thereby halting further performance.
35. The Applicant submitted that the 3rd and 4th Respondents were improperly using the criminal justice system as an avenue for debt collection and are attempting to circumvent the conservatory orders issued in Constitutional Petition No. E078 of 2025.
36. In response to allegations raised in the replying affidavits by the Investigating Officer and Mr. Alexander Craybill, the Applicant maintained that the affidavit sworn by Mr. Craybill is improperly deposed on behalf of IIX rather than the 3rd and 4th Respondents and should therefore be struck out.
37. The Applicant further reiterated that the search warrants and freezing orders were obtained through material non-disclosure, particularly through failure to disclose the existence of the Constitutional Court orders and the contractual documents governing the parties’ relationship, matters which could have materially influenced the lower court’s decision. Through the further affidavit of Joseph Kuria dated 26th February 2026, the Applicant has also rebutted allegations regarding its operational status by providing evidence of its current office location and evidence demonstrating continued commercial engagement between the parties, including repayment of interest, restructuring requests, and responses to breach notices.
38. The Applicant identified the following issues for determination by this Honourable Court:
i). whether there was a justifiable complaint to warrant commencement of investigations;
ii). whether the warrants were procedurally issued and, if not, whether they should be quashed; and
iii). whether the impending investigations and criminal process should be stopped and prohibited.
39. On the first issue, the Applicant acknowledged the constitutional mandate of the 1st and 2nd Respondents to investigate complaints and prosecute offences where appropriate. However, it submits that such authority can only be triggered where a complaint is justifiable and lodged in good faith.
40. The Applicant argued that the complaint lodged by the 3rd and 4th Respondents failed to meet the threshold of probable cause, having been made with material non-disclosures and in bad faith.
41. In particular, the Applicant submitted that the complainants failed to disclose that the Applicant had serviced the loan facilities for approximately two years, that prior breach notices had been issued and later waived after being found erroneous, and that the 3rd and 4th Respondents had undertaken due diligence on the Applicant before advancing the loan facilities.
42. These omissions, the Applicant submitted, demonstrate an improper attempt to invoke the process of the criminal justice system.
43. On the second issue concerning the warrants, the Applicant submitted that the warrants issued by the lower court on 29th January 2026 were improperly obtained, fatally defective, and liable to be quashed.
44. It was contended that the affidavit sworn in support of the application by Chief Inspector Johnson Kioli contained manifestly false depositions, particularly allegations that the Applicant had failed to honour the repayment agreement and had denied the complainants access to financial records.
45. The Applicant maintained that it made payments as and when due until conservatory orders were issued in Constitutional Petition No. E078 of 2025 and that the 3rd and 4th Respondents had full access to the Applicant’s financial information, as evidenced by the breach notices they had issued based on cost-to-income ratio assessments.
46. The Applicant further argued that the 1st Respondent conducted no meaningful investigations before seeking the warrants and merely acted on the complaint without independently verifying the allegations.
47. Further, the applicant submitted that the Respondents failed to first seek the required information directly from the Applicant through less restrictive means, contrary to the guarantees of fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act.
48. The applicant cited several authorities in support of the application to wit;-
i). Director of Public Prosecutions vs Tom Ojienda t/a Prof Tom Ojienda Associates Advocates & 3 Others (2019) eKLR.
ii). Minister for Safety and Security v Van Der Merwe and Others (CCT90/10) (2011) ZACC 19; 2011 (5) SA 61 (CC); 2011(9) BCLR 961 (CC); 2011 (2) SACR 301 (CC) (7 June 2011).
iii). Vitu Limited vs. The Chief Magistrate Nairobi & 2 Others, Misc. Criminal Application No.475 of 2004, where the Court held as follows:
“A police officer is not legally empowered to apply for or to obtain a warrant to investigate a person’s bank account just because he imagines that that person may commit or has committed an offence. There must be substantial facts and circumstances already available to the officer to enable him to create or to have a reasonable suspicion in mind that, the account holder has committed an offence…there must have been a complaint and investigations.”
iv). Emmanuel Suipanu Siyanga v Republic Criminal Appeal 124 of 2009 (2013) eKLR, where the Court held as follows:
“………….and it follows that the factual basis which would make any suspicion which is actually formed a reasonable one must also exist at the material time: a suspicion cannot be held to be reasonable if it is founded on non-existent facts. This would be a subjective opinion and must be based on grounds actually existing at the time of its formation. If there are not grounds which then made the suspicion reasonable, it was not a reasonable suspicion. Whether grounds actually existed at the time is to be tested objectively….”
v). In Manfred Walter Schmitt & Another v Republic & Another (2013) eKLR, where the Court held as follows:
“25. The issue then for consideration is whether there were reasonable grounds for suspicion that the applicants had committed any offense to warrant the issuing of orders to investigate the applicants’ accounts…”
49. The Applicant submitted that no evidence was placed before the Magistrate sufficient to justify issuance of the warrants and freezing orders.
50. It is further emphasized that all Respondents were aware of the conservatory orders issued in Constitutional Petition No. E078 of 2025 and failed to disclose the same to the Magistrate’s Court.
51. The Applicant also contended that the warrants violated the procedural guidelines issued by this Honourable Court in Hassan Mohammed v EACC & Another 2019, as well as the principles set out by the Court of Appeal in Samuel Watatua & another v Republic, in that the warrants were issued for ninety days instead of fourteen days, lacked a return date, and were never served upon the Applicant or the affected persons.
52. On the final issue, the Applicant submitted that while this Court ordinarily exercises restraint in interfering with the mandates of constitutional bodies, it retains jurisdiction to prevent abuse of the criminal justice system. The applicant relied on Kuria & 3 Others VS Attorney General (2002) 2 KLR 69 where it was held:
“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorces from the goals of justice guide their initiation.”
53. The applicant further cited the case of Republic vs Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another (2002) 2 KLR it was held that : “It is not the purpose of criminal investigation or criminal charge or prosecution to help individuals in the advancement of frustration of their civil cases. That is an abuse of the process of the court…”
54. The Applicant submitted that the criminal proceedings arise directly from the same commercial transaction which forms the subject of Constitutional Petition No. E078 of 2025 and related proceedings before the Court of Appeal. It was therefore argued that, having failed to obtain favourable relief in those fora, the 3rd and 4th Respondents have resorted to criminal proceedings as a means of debt recovery and to avoid determination of significant constitutional questions concerning their own regulatory compliance in Kenya.
55. The Applicant further submitted that the matters raised in the intended criminal investigations can be conclusively determined within the existing civil and constitutional proceedings.
56. The applicant cited the case of Haria & 3 Others vs Director, Directorate of Criminal Investigations & 3 Others (Petition E049 of 2021) KEHC 2549 (KLR), where the court stated :-
“Although section 193A of the Criminal Procedure Code allows concurrent civil and criminal proceedings, criminal proceedings should not be undertaken where the issue in controversy can be properly and effectively determined through civil proceedings.”
57. In conclusion, the Applicant submitted that the complaint lodged against it lacked probable cause, that the warrants and freezing orders were irregularly and unlawfully obtained, and that the criminal proceedings constitute an abuse of the court process and are intended to advance debt collection objectives.
58. Accordingly, the Applicant urged this Honourable Court to allow the application with costs to be borne by the 3rd and 4th Respondents.
1 ST AND 2 ND RESPONDENTS CASE
59. The 1 st and 2 nd respondents filed an affidavit sworn on 10 th February 2026 and submissions dated 9 th April 2026. The two respondents placed reliance on the provisions of Section 180 of the Evidence Act as their source of authority to investigate bank records and documents.
60. Mr Mogere counsel for the 1 st and 2 nd respondents submitted that the warrants issued to the 1 st respondents were issued within the law and for the applicant to succeed in this application he must demonstrate illegality or want of jurisdiction on the part of the magistrate in granting the impugned order. Counsel cited the case of Kinoti $ 7 Others vs Chief Magistrates Court Milimani (2022) eKLR.
61. The 1 st and 2 nd respondents further relied on the provisions of Section 193A of the Criminal Procedure Code which permits concurrent civil and criminal proceedings.
62. The existence of the Constitutional Petition counsel argued does not oust the jurisdiction of the Criminal Court.
63. The 1 st and 2 nd respondents further argued that material non- disclosure does not arise since according to them, all that is required for the investigations to commence is reasonable suspicion. The respondents cited Sections 4 and 16 of the Proceeds of Crime and Anti-Money Laundering Act as a basis for the investigations.
64. The 1 st and 2 nd respondents therefore argued that the court should not interfere with the decision of the court that granted the warrants to search the bank records of the applicants and obtain other records relating to the operations of the applicant.
65. The 1 st and 2 nd respondents therefore urged the court to dismiss the application in its entirety.
3RD AND 4TH RESPONDENTS’ CASE
66. The 3rd and 4th Respondents opposed the Applicant’s Notice of Motion Application dated 3rd February 2026 and submitted that the Application is not a genuine constitutional challenge to unlawful state action but rather a calculated attempt by the Applicant to evade lawful scrutiny and interfere with the statutory mandate of the 1st Respondent under Section 35 (b) of the National Police Service Act .
67. The Respondents contended that the Applicant seeks to improperly invite this Honourable Court to interfere with ongoing investigations at their inception before any prosecutorial decision has been made.
68. The Respondents submitted that the Applicant admittedly received approximately USD 17,000,000 from the 3rd and 4th Respondents pursuant to promissory notes dated 21st December 2022 and 4th January 2024 for the specific purpose of lending to smallholder female farmers in Kenya.
69. The funds were advanced subject to clear accountability and reporting obligations. However, despite repeated requests, the Applicant allegedly failed to provide credible evidence of on-lending or proper utilization of the funds in accordance with the agreed purpose. The Applicant further failed to meet obligations under the Promissory Notes and instead instituted litigation challenging the very instruments under which it had received the funds.
70. The 3rd and 4th Respondents stated that these circumstances reasonably raised apprehension that the funds may have been obtained by false pretences, that their true application had been concealed, and that the Applicant’s conduct exhibited a pattern consistent with money laundering. Consequently, through their advocates, the 3rd and 4th Respondents lodged a complaint dated 15th December 2025 with the 1st Respondent.
71. The respondents submitted that all material facts were disclosed in the complaint, including the existence of ongoing civil proceedings relating to the same subject matter, and copies of the pleadings in the civil suit were attached.
72. According to the Respondents, whereas the civil proceedings concern the legality of the transaction documents, the criminal complaint invited investigations into the actual use of the funds, receipt of which is not disputed.
73. The Respondents identified two issues for determination, namely whether there exists any lawful basis for this Honourable Court to interfere with ongoing criminal investigations , and whether the existence of civil proceedings bars the institution or continuation of criminal investigations .
74. On the first issue, the Respondents submitted that the threshold for judicial interference with investigations is exceptionally high and only arises where investigations are unlawful, undertaken in bad faith, or constitute an abuse of process. The respondents argued that the Applicant had failed to satisfy the threshold.
75. The Respondents relied on Article 157 of the Constitution of Kenya, 2010 , which vests the 2nd Respondent with independent constitutional authority to institute and undertake criminal prosecutions, as well as Section 35 of the National Police Service Act , which mandates the 1st Respondent to collect criminal intelligence and investigate serious offences, including economic crimes and money laundering.
76. It was submitted that these constitutional and statutory mandates are activated upon receipt of information disclosing potential criminal conduct and do not require prior judicial authorization or assessment at inception.
77. The respondents cited Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR), where the Supreme Court emphasised that questions relating to sufficiency of evidence, elements of an offence, and interpretation of statutory provisio
[...truncated]
1. This Ruling is in respect of a Notice of Motion expressed to be brought under Article 165 (6) & (7) of the Constitution and section 362 of the Criminal Procedure Code and all the other enabling provisions of the law.
2. The applicant moved this court for orders that: -
a). This matter be certified urgent and that the same be heard ex-parte in the first instance. ( spent )
`b). Pending the hearing and determination of the application inter partes there be a stay of the proceedings and execution of the orders of the Chief Magistrates Court Milimani issued on 29th January 2026 in Miscellaneous Criminal Application No E403 of 2026 save that funds domiciled in the bank accounts held by the 6th Respondent the below listed accounts be preserved in the meantime:
i). Lenana Innovative Solutions Limited Account No 6580014351 domiciled at Ecobank Kenya
ii). Lenana Innovative Solutions Limited Account No 6580017054 domiciled at Ecobank Kenya
iii). Lenana Innovative Solutions Limited Account No 6580014708 domiciled at Ecobank Kenya.
c). The Honourable Court be pleased to call and examine the record in The Magistrates Court at Milimani Miscellaneous Criminal Application No E403 of 2026 purposes of satisfying itself of the correctness, legality or propriety of the orders issued on 29th January 2026 and the entire proceedings thereto.
d). The Honourable Court be pleased to review/vary and or set aside the orders of the Chief Magistrate Court at Milimani issued on 29th January 2026 in Miscellaneous Criminal Application No E403 of 2026.
e). An order of permanent injunction do issue restraining the Respondents whether by themselves, their agents or any other person acting on their behalf from investigating the Applicant herein, its Directors, its bank accounts held with the 5th Respondent herein, or records held by the 7th Respondent herein or any other accounts or records premised on the complaint letter dated 15th December 2025 by the 3rd and 4th Respondents herein.
f). The Honourable court be pleased to issue an order of anonymization when the matter is reported at the Kenya Law Reports
g). The costs of this application be borne by the Respondents.
3. In support of the application the applicant raised the following grounds;-
i). The Applicant and the 3rd and 4th Respondents entered into lending agreements secured by 2 promissory notes dated 21st December 2022 and 4th January 2024.
ii). Within the pendency of the performance of the agreements, the Applicant became aware that the 3rd and 4th Respondents were not registered as either foreign company, local company nor did they have licensing from the Central Bank of Kenya or have Kenya Revenue Authority Personal Identification Numbers (PIN) to allow them to lend in Kenya ostensibly operating illegally in Kenya.
iii). Noting the illegality, the Applicant filed Constitutional Petition number E078 of 2025 at the High Court of Kenya at Nairobi and obtained conservatory orders staying the performance of the contracts pending the hearing and determination of the Petition.
iv). The 3rd and 4th Respondents thereafter attempted to discharge the court orders vide their application dated 15th April 2025 seeking to have the matter referred to Singapore for Arbitration which application was dismissed vide a ruling dated 14th August 2025.
v). Being dissatisfied by the ruling the 3rd and 4th Respondent filed an appeal at the Court of Appeal vide Civil Application no E645 of 2025 which is due for hearing on 16th February 2025 interim orders ex-parte having been declined.
vi). Noting that they had failed in their quests, the 3rd and 4th Respondents filed a complaint with the 1st Respondent herein regarding the same contracts subject to questioning on legality precipitating the 1st and 2nd Respondents to file Misc Application E403 of 2026 at the 5th Respondent herein.
vii). The 5th Respondent issued ex-parte orders on 29th January 2026 amongst other things preserving the funds in the accounts of the Applicant and granting the Respondents unlimited access to the accounts and transactions of the Applicant herein vide Miscellaneous Criminal Application No E403 of 2026.
viii). The said orders were issued ultra vires as they are issued by a subordinate court whilst the same substratum subject of the application is within the jurisdiction of the superior court and the court of appeal.
ix) The Application and the complaint are equally untenable in law as they are made by an entity that has no legal capacity to do so.
x). The orders issued are further in violation of the Applicant's constitutional and administrative rights as the Applicant was not issued with any notice to produce the documents and refused to do so nor have the Respondents demonstrated why it was imperative for the orders to issue.
xi). The application is further procedurally and legally untenable as the Investigating officer prima facie indicates in his affidavit that the matter at issue is civil in nature relating to a lender and borrower relationship devoid of any criminal elements.
xii). The Application is further an abuse of the court process as the Respondents are now using the courts as a tool to coerce the Applicant into withdrawing the Constitutional Petition filed against the 3rd and 4th Respondents which the court has prima facie found merit in.
xiii). The orders of the lower court and indeed the commencement of the criminal process has been done irrationally and unlawfully by the 1st to 5th Respondents to the detriment of the Applicant herein.
xiv). The impugned decision herein was further arrived at in a manner that was procedurally unfair as the Respondents did not avail to the applicant an opportunity to volunteer the information required or to address the court on the subsistence of stay orders in the High Court despite the respondents being aware of the same.
xv). It was therefore necessary to stay all the proceedings in the lower courts save to preserve the funds in the bank accounts pending the hearing and determination of the application inter partes.
xvi). lt was further necessary for this Honourable court to call upon into the record the proceedings before the Chief Magistrates Court at Milimani, Miscellaneous Criminal Application No E403 of 2026 to examine the correctness and to issue such other directives as appropriate.
xvii). That it is further necessary for this Honourable Court to substantively discharge the orders of the Chief Magistrate court at Milimani vide Miscellaneous Criminal Application No E403 of 2026
xviii). It is imperative for this Honourable court to issue injunctive orders against the Respondents herein barring them from abusing the criminal justice system and accordingly undertaking investigations or charging the Applicant herein or its directors on the premises of the complaint filed with the 1st Respondent by the 3rd and 4th Respondents on 15th December 2025.
xix). It is in the interest of justice that the orders sought be granted.
xx). The Respondents shall suffer no prejudice if the orders sought are granted.
4. The applicant further supported the application through the affidavit of one Joseph Kuria, a Director of the Applicant company.
5. The deponent attached the company resolution allowing him to depone to the affidavit thus establishing his locus in supporting the application.
6. The deponent deponed that on 29th January 2026, the 5th Respondent issued ex parte orders in Miscellaneous Criminal Application No. E403 of 2026, preserving the Applicant’s bank accounts and granting the Respondents unrestricted access to the Applicant’s accounts and transactions
7. The said orders arose from an application dated 29th January 2026 by the 1st and 2nd Respondents, supported by the affidavit of Chief Inspector Johnson Kioli.
8. The Deponent averred that the application was premised on a complaint allegedly lodged by the 3rd and 4th Respondents through Anjarwalla & Khanna Advocates on 15th December 2025, though the complaint letter was not annexed to the application.
9. The deponent asserted that the impugned orders are ultra vires, having been issued by a subordinate court despite the substratum of the dispute being actively before superior courts. Further, the application is said to be legally untenable, having been initiated by entities lacking legal capacity.
10. According to the deponent the orders complained of violate the Applicant’s constitutional and administrative rights, as no prior notice was issued requiring production of documents, nor was any refusal demonstrated.
11. Additionally, the investigating officer’s affidavit indicates that the dispute is fundamentally civil in nature, arising from a lender–borrower relationship devoid of criminal elements.
12. The Deponent further averred that the proceedings constitute an abuse of court process, intended to coerce the Applicant into withdrawing a pending Constitutional Petition against the 3rd and 4th Respondents, which has already been found prima facie meritorious.
13. By way of background, the Deponent states that the Applicant and the 3rd and 4th Respondents entered into lending agreements secured by two promissory notes dated 21st December 2022 and 4th January 2024, with the Respondents as lenders and the Applicant as borrower.
14. According to the applicant the Respondents, as lenders operating in Kenya, were under statutory obligations to comply with Kenyan law, including registration under the Companies Act, obtaining tax registration under the Tax Procedures Act, and securing licensing or exemption from the Central Bank of Kenya under the Banking Act and the Central Bank of Kenya Act.
15. The Applicant maintained that it performed its obligations until November 2024, when it sought restructuring of the loan. Subsequently, the Applicant instructed its advocates to conduct due diligence, which revealed that the 3rd and 4th Respondents were neither registered in Kenya nor licensed by the Central Bank of Kenya to provide credit facilities.
16. Following those findings, the Applicant filed Nairobi High Court Constitutional Petition No. E078 of 2025, seeking, inter alia:
• Declarations that Section 6(4) of the Movable Property Securities Act is unconstitutional;
• Declarations that the Respondents lack legal capacity to contract, register securities, and offer financial services in Kenya without compliance with statutory requirements;
• Nullification of the promissory notes, contracts, and securities;
• Cancellation of charges registered under the Movable Property Security Rights Act; and
• Costs and interests.
17. The Deponent states that the issues identified in the petition raise substantial public law questions regarding the legality of the transaction.
18. The Applicant filed an interlocutory application dated 19th February 2025, upon which the High Court issued conservatory orders suspending performance of the contractual obligations.
19. The 3rd and 4th Respondents subsequently applied on 15th April 2025 to set aside the orders and refer the matter to arbitration in Singapore; however, this application was dismissed on 14th August 2025.
20. Following the dismissal, the Respondents filed Civil Application No. E645 of 2025 and Civil Appeal No. E945 of 2025 before the Court of Appeal. Interim ex parte relief was declined, and the application was scheduled for hearing on 16th February 2026.
21. The Deponent asserts that the Respondents were fully aware of the ongoing proceedings in the High Court and Court of Appeal, and that any complaint lodged with the 1st Respondent without disclosure of these proceedings amounts to material non-disclosure and an attempt to circumvent superior court processes.
22. It is further contended that the institution of Miscellaneous Criminal Application No. E403 of 2026 was undertaken without disclosure of material facts; or was deliberately filed to mislead the subordinate court, rendering the resultant orders unlawful and liable to be quashed.
23. The Deponent reiterates that the subordinate court lacked jurisdiction, given that the substantive issues are already before superior courts, including the Constitutional Court.
24. The applicant avers that the Respondents’ actions are irrational, unlawful, and calculated to frustrate the Applicant, and amount to misuse of investigative and prosecutorial powers to exert pressure on the Applicant.
25. The Deponent contends that allowing the impugned proceedings to subsist alongside orders of the High Court and Court of Appeal undermines the constitutional hierarchy of courts and the administration of justice.
26. Accordingly, the Deponent urges the Court to:
i). Stay all proceedings in Miscellaneous Criminal Application No. E403 of 2026;
ii). Quash the orders issued on 29th January 2026; and
iii). Grant orders of prohibition as sought in the substantive application.
27. The deponent asserted that the application has been brought without delay, and that granting the orders sought is in the interest of justice.
APPLICANT’S CASE
28. The Applicant herein filed the present application seeking, among other reliefs, stay of proceedings and execution of the orders issued by the Chief Magistrate’s Court at Milimani on 29th January 2026 in Miscellaneous Criminal Application No. E403 of 2026, review and setting aside of the said orders, permanent injunctive orders restraining the Respondents from investigating the Applicant, its directors, bank accounts and related records on the basis of the complaint dated 15th December 2025, as well as orders for anonymization and costs.
29. The Applicant, however, expressed willingness for preservation of funds held in the specified Ecobank accounts pending determination of the application.
30. The genesis of the present application lies in proceedings initiated by the 1st and 2nd Respondents before the Chief Magistrate’s Court at Milimani through Miscellaneous Criminal Application No. E403 of 2026, where they obtained freezing orders and search warrants against the Applicant’s bank accounts.
31. The said application was premised on allegations that the Applicant was involved in possession of proceeds of crime and money laundering.
32. The complaint giving rise to those investigations was lodged by the 3rd and 4th Respondents, who alleged that they had advanced to the Applicant an aggregate sum of USD 17 Million for purposes of extending credit to women and small-scale farmers in Kenya.
33. The Applicant contended that the dispute between the parties is purely civil and commercial in nature, arising from lending agreements embodied in two promissory notes and accompanying documentary securities.
34. It is the Applicant’s position that it performed its obligations under the said agreements until conservatory orders were issued by the High Court in Constitutional Petition No. E078 of 2025 on 19th February 2025, thereby halting further performance.
35. The Applicant submitted that the 3rd and 4th Respondents were improperly using the criminal justice system as an avenue for debt collection and are attempting to circumvent the conservatory orders issued in Constitutional Petition No. E078 of 2025.
36. In response to allegations raised in the replying affidavits by the Investigating Officer and Mr. Alexander Craybill, the Applicant maintained that the affidavit sworn by Mr. Craybill is improperly deposed on behalf of IIX rather than the 3rd and 4th Respondents and should therefore be struck out.
37. The Applicant further reiterated that the search warrants and freezing orders were obtained through material non-disclosure, particularly through failure to disclose the existence of the Constitutional Court orders and the contractual documents governing the parties’ relationship, matters which could have materially influenced the lower court’s decision. Through the further affidavit of Joseph Kuria dated 26th February 2026, the Applicant has also rebutted allegations regarding its operational status by providing evidence of its current office location and evidence demonstrating continued commercial engagement between the parties, including repayment of interest, restructuring requests, and responses to breach notices.
38. The Applicant identified the following issues for determination by this Honourable Court:
i). whether there was a justifiable complaint to warrant commencement of investigations;
ii). whether the warrants were procedurally issued and, if not, whether they should be quashed; and
iii). whether the impending investigations and criminal process should be stopped and prohibited.
39. On the first issue, the Applicant acknowledged the constitutional mandate of the 1st and 2nd Respondents to investigate complaints and prosecute offences where appropriate. However, it submits that such authority can only be triggered where a complaint is justifiable and lodged in good faith.
40. The Applicant argued that the complaint lodged by the 3rd and 4th Respondents failed to meet the threshold of probable cause, having been made with material non-disclosures and in bad faith.
41. In particular, the Applicant submitted that the complainants failed to disclose that the Applicant had serviced the loan facilities for approximately two years, that prior breach notices had been issued and later waived after being found erroneous, and that the 3rd and 4th Respondents had undertaken due diligence on the Applicant before advancing the loan facilities.
42. These omissions, the Applicant submitted, demonstrate an improper attempt to invoke the process of the criminal justice system.
43. On the second issue concerning the warrants, the Applicant submitted that the warrants issued by the lower court on 29th January 2026 were improperly obtained, fatally defective, and liable to be quashed.
44. It was contended that the affidavit sworn in support of the application by Chief Inspector Johnson Kioli contained manifestly false depositions, particularly allegations that the Applicant had failed to honour the repayment agreement and had denied the complainants access to financial records.
45. The Applicant maintained that it made payments as and when due until conservatory orders were issued in Constitutional Petition No. E078 of 2025 and that the 3rd and 4th Respondents had full access to the Applicant’s financial information, as evidenced by the breach notices they had issued based on cost-to-income ratio assessments.
46. The Applicant further argued that the 1st Respondent conducted no meaningful investigations before seeking the warrants and merely acted on the complaint without independently verifying the allegations.
47. Further, the applicant submitted that the Respondents failed to first seek the required information directly from the Applicant through less restrictive means, contrary to the guarantees of fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act.
48. The applicant cited several authorities in support of the application to wit;-
i). Director of Public Prosecutions vs Tom Ojienda t/a Prof Tom Ojienda Associates Advocates & 3 Others (2019) eKLR.
ii). Minister for Safety and Security v Van Der Merwe and Others (CCT90/10) (2011) ZACC 19; 2011 (5) SA 61 (CC); 2011(9) BCLR 961 (CC); 2011 (2) SACR 301 (CC) (7 June 2011).
iii). Vitu Limited vs. The Chief Magistrate Nairobi & 2 Others, Misc. Criminal Application No.475 of 2004, where the Court held as follows:
“A police officer is not legally empowered to apply for or to obtain a warrant to investigate a person’s bank account just because he imagines that that person may commit or has committed an offence. There must be substantial facts and circumstances already available to the officer to enable him to create or to have a reasonable suspicion in mind that, the account holder has committed an offence…there must have been a complaint and investigations.”
iv). Emmanuel Suipanu Siyanga v Republic Criminal Appeal 124 of 2009 (2013) eKLR, where the Court held as follows:
“………….and it follows that the factual basis which would make any suspicion which is actually formed a reasonable one must also exist at the material time: a suspicion cannot be held to be reasonable if it is founded on non-existent facts. This would be a subjective opinion and must be based on grounds actually existing at the time of its formation. If there are not grounds which then made the suspicion reasonable, it was not a reasonable suspicion. Whether grounds actually existed at the time is to be tested objectively….”
v). In Manfred Walter Schmitt & Another v Republic & Another (2013) eKLR, where the Court held as follows:
“25. The issue then for consideration is whether there were reasonable grounds for suspicion that the applicants had committed any offense to warrant the issuing of orders to investigate the applicants’ accounts…”
49. The Applicant submitted that no evidence was placed before the Magistrate sufficient to justify issuance of the warrants and freezing orders.
50. It is further emphasized that all Respondents were aware of the conservatory orders issued in Constitutional Petition No. E078 of 2025 and failed to disclose the same to the Magistrate’s Court.
51. The Applicant also contended that the warrants violated the procedural guidelines issued by this Honourable Court in Hassan Mohammed v EACC & Another 2019, as well as the principles set out by the Court of Appeal in Samuel Watatua & another v Republic, in that the warrants were issued for ninety days instead of fourteen days, lacked a return date, and were never served upon the Applicant or the affected persons.
52. On the final issue, the Applicant submitted that while this Court ordinarily exercises restraint in interfering with the mandates of constitutional bodies, it retains jurisdiction to prevent abuse of the criminal justice system. The applicant relied on Kuria & 3 Others VS Attorney General (2002) 2 KLR 69 where it was held:
“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorces from the goals of justice guide their initiation.”
53. The applicant further cited the case of Republic vs Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another (2002) 2 KLR it was held that : “It is not the purpose of criminal investigation or criminal charge or prosecution to help individuals in the advancement of frustration of their civil cases. That is an abuse of the process of the court…”
54. The Applicant submitted that the criminal proceedings arise directly from the same commercial transaction which forms the subject of Constitutional Petition No. E078 of 2025 and related proceedings before the Court of Appeal. It was therefore argued that, having failed to obtain favourable relief in those fora, the 3rd and 4th Respondents have resorted to criminal proceedings as a means of debt recovery and to avoid determination of significant constitutional questions concerning their own regulatory compliance in Kenya.
55. The Applicant further submitted that the matters raised in the intended criminal investigations can be conclusively determined within the existing civil and constitutional proceedings.
56. The applicant cited the case of Haria & 3 Others vs Director, Directorate of Criminal Investigations & 3 Others (Petition E049 of 2021) KEHC 2549 (KLR), where the court stated :-
“Although section 193A of the Criminal Procedure Code allows concurrent civil and criminal proceedings, criminal proceedings should not be undertaken where the issue in controversy can be properly and effectively determined through civil proceedings.”
57. In conclusion, the Applicant submitted that the complaint lodged against it lacked probable cause, that the warrants and freezing orders were irregularly and unlawfully obtained, and that the criminal proceedings constitute an abuse of the court process and are intended to advance debt collection objectives.
58. Accordingly, the Applicant urged this Honourable Court to allow the application with costs to be borne by the 3rd and 4th Respondents.
1 ST AND 2 ND RESPONDENTS CASE
59. The 1 st and 2 nd respondents filed an affidavit sworn on 10 th February 2026 and submissions dated 9 th April 2026. The two respondents placed reliance on the provisions of Section 180 of the Evidence Act as their source of authority to investigate bank records and documents.
60. Mr Mogere counsel for the 1 st and 2 nd respondents submitted that the warrants issued to the 1 st respondents were issued within the law and for the applicant to succeed in this application he must demonstrate illegality or want of jurisdiction on the part of the magistrate in granting the impugned order. Counsel cited the case of Kinoti $ 7 Others vs Chief Magistrates Court Milimani (2022) eKLR.
61. The 1 st and 2 nd respondents further relied on the provisions of Section 193A of the Criminal Procedure Code which permits concurrent civil and criminal proceedings.
62. The existence of the Constitutional Petition counsel argued does not oust the jurisdiction of the Criminal Court.
63. The 1 st and 2 nd respondents further argued that material non- disclosure does not arise since according to them, all that is required for the investigations to commence is reasonable suspicion. The respondents cited Sections 4 and 16 of the Proceeds of Crime and Anti-Money Laundering Act as a basis for the investigations.
64. The 1 st and 2 nd respondents therefore argued that the court should not interfere with the decision of the court that granted the warrants to search the bank records of the applicants and obtain other records relating to the operations of the applicant.
65. The 1 st and 2 nd respondents therefore urged the court to dismiss the application in its entirety.
3RD AND 4TH RESPONDENTS’ CASE
66. The 3rd and 4th Respondents opposed the Applicant’s Notice of Motion Application dated 3rd February 2026 and submitted that the Application is not a genuine constitutional challenge to unlawful state action but rather a calculated attempt by the Applicant to evade lawful scrutiny and interfere with the statutory mandate of the 1st Respondent under Section 35 (b) of the National Police Service Act .
67. The Respondents contended that the Applicant seeks to improperly invite this Honourable Court to interfere with ongoing investigations at their inception before any prosecutorial decision has been made.
68. The Respondents submitted that the Applicant admittedly received approximately USD 17,000,000 from the 3rd and 4th Respondents pursuant to promissory notes dated 21st December 2022 and 4th January 2024 for the specific purpose of lending to smallholder female farmers in Kenya.
69. The funds were advanced subject to clear accountability and reporting obligations. However, despite repeated requests, the Applicant allegedly failed to provide credible evidence of on-lending or proper utilization of the funds in accordance with the agreed purpose. The Applicant further failed to meet obligations under the Promissory Notes and instead instituted litigation challenging the very instruments under which it had received the funds.
70. The 3rd and 4th Respondents stated that these circumstances reasonably raised apprehension that the funds may have been obtained by false pretences, that their true application had been concealed, and that the Applicant’s conduct exhibited a pattern consistent with money laundering. Consequently, through their advocates, the 3rd and 4th Respondents lodged a complaint dated 15th December 2025 with the 1st Respondent.
71. The respondents submitted that all material facts were disclosed in the complaint, including the existence of ongoing civil proceedings relating to the same subject matter, and copies of the pleadings in the civil suit were attached.
72. According to the Respondents, whereas the civil proceedings concern the legality of the transaction documents, the criminal complaint invited investigations into the actual use of the funds, receipt of which is not disputed.
73. The Respondents identified two issues for determination, namely whether there exists any lawful basis for this Honourable Court to interfere with ongoing criminal investigations , and whether the existence of civil proceedings bars the institution or continuation of criminal investigations .
74. On the first issue, the Respondents submitted that the threshold for judicial interference with investigations is exceptionally high and only arises where investigations are unlawful, undertaken in bad faith, or constitute an abuse of process. The respondents argued that the Applicant had failed to satisfy the threshold.
75. The Respondents relied on Article 157 of the Constitution of Kenya, 2010 , which vests the 2nd Respondent with independent constitutional authority to institute and undertake criminal prosecutions, as well as Section 35 of the National Police Service Act , which mandates the 1st Respondent to collect criminal intelligence and investigate serious offences, including economic crimes and money laundering.
76. It was submitted that these constitutional and statutory mandates are activated upon receipt of information disclosing potential criminal conduct and do not require prior judicial authorization or assessment at inception.
77. The respondents cited Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR), where the Supreme Court emphasised that questions relating to sufficiency of evidence, elements of an offence, and interpretation of statutory provisio
[...truncated]