1. Before the Court are primarily two related applications arising from a loan transaction between the Plaintiff and the 1st Defendant and concerning the preservation of funds alleged to be traceable to that transaction.
2. By the Notice of Motion dated 31st March 2026, the Plaintiff sought freezing orders over, among other accounts, Equity Bank Account No. 1410284273604 and USD Account No. 3251260102, alleged to be held at Citibank N.A. Kenya.
3. Citibank subsequently moved the Court by its application dated 22nd April 2026, seeking to be joined for purposes of its application and for the review or variation of the order issued on 1st April 2026 in respect of USD Account No. 3251260102. Its case is that the 1st Defendant is not its customer and does not operate the account identified in the order. This application was compromised prior to this Ruling and Citibank accordingly removed from the proceedings.
4. By a further application dated 2nd June 2026, the Plaintiff sought preservatory orders over Co-operative Bank Account No. 01106224622001, which it alleges is held by the 2nd Defendant and received funds connected with the transaction forming the subject matter of this suit.
5. The Plaintiff's case is founded on a loan agreement dated 5th June 2025, pursuant to which it alleges that it advanced the 1st Defendant Kshs. 125,000,000. The Plaintiff contends that the amount was repayable together with agreed interest, bringing the amount claimed to Kshs. 170,000,000. It relies on the agreement and banking transactions said to evidence the disbursement of Kshs. 100,000,000, Kshs. 5,000,000 and Kshs. 20,000,000.
6. It is the Plaintiff's further case that the 1st Defendant failed to repay the loan and that the funds were thereafter transferred through different accounts and entities. It consequently seeks the preservation of the identified funds pending the determination of the suit.
Analysis and Determination
7. Having considered the applications, the affidavits, the rival submissions and the authorities cited, the primary issue for determination is whether the Plaintiff has met the threshold for the grant of a freezing injunction
8. A freezing or Mareva injunction is a remedy directed at preserving assets pending the determination of a claim where there is a real risk that, absent intervention by the Court, those assets may be dissipated so as to frustrate the enforcement of an eventual judgment. It is a remedy distinct from an ordinary interlocutory injunction.
9. The applicable principles were recently affirmed by the Court of Appeal in Nanji & 2 others v Exobi (Finance House) Ltd [2025] KECA 1119 (KLR). The applicant must demonstrate a good arguable case based on a pre-existing cause of action; assets within the jurisdiction; and a real risk that the assets will be removed or dissipated if the order is not granted. The balance of convenience must also favour the grant of the relief. The same principles have consistently been applied in International Air Transport Association & another v Akarim Agencies Company Ltd & 2 others [2014] eKLR and UBA Kenya Bank Ltd v Sylvia Mututi Magotsi [2015] eKLR.
10. Equally important is the caution stated by Gikonyo J in Kanduyi Holdings Ltd v Balm Kenya Foundation & another [2013] eKLR, that the remedy is not intended to pressure a defendant, strip a defendant of assets, or confer upon a claimant proprietary right over the defendant's assets. Its purpose is to prevent conduct capable of obstructing or delaying the execution of a decree that may ultimately be issued.
11. It is against those principles that the applications fall for determination.
12. The Plaintiff's claim is founded on a specific loan transaction. It has produced the agreement upon which it relies and banking records which it contends demonstrate the disbursement of Kshs. 125,000,000 to the 1st Defendant in three separate transactions. It alleges that the amount fell due but remains unpaid.
13. At this stage, the Court is not required to determine the validity of the claim or finally pronounce upon the parties' rights and obligations. The inquiry is whether the Plaintiff has demonstrated a bona fide and arguable claim founded on an existing cause of action.
14. The Plaintiff identifies Equity Bank Account No. 1410284273604 as an account into which the loan proceeds were remitted. It also identifies Co-operative Bank Account No. 01106224622001, associated with the 2nd Defendant, and alleges that funds arising from the transaction were subsequently transferred into that account.
15. The Plaintiff additionally relies on the alleged common directorship and shareholding among the entities involved. While common directorship or shareholding alone cannot justify an order against the assets of one company merely because of its association with another. I am, however, satisfied, based on the material before Court, that there is a basis in respect of Equity Bank Account No. 1410284273604 and Co-operative Bank Account No. 01106224622001. Both accounts have been specifically identified, and the material relied upon by the Plaintiff establishes, at this interlocutory stage, a sufficient connection between them and the transaction in issue.
16. A good arguable case and the existence of assets are not, by themselves, sufficient. There must also be a real risk of dissipation. As the Court of Appeal's consideration of the principles in Nanji demonstrates, the remedy is exceptional and must be supported by evidence establishing a genuine risk to the efficacy of the Court's eventual judgment.
17. The Plaintiff relies on the alleged movement of substantial sums from the 1st Defendant through different accounts and entities after the loan was advanced. It further relies on the alleged relationship between the entities and the continued non-payment of the amount claimed.
18. Non-payment, standing alone, would not establish the requisite risk. Neither would the mere existence of corporate relationships. The Court must consider the evidence as a whole.
19. In the present case, the alleged movement of the funds through different entities and accounts, coupled with the evidence relied upon in relation to the two specifically identified accounts, provides an objective basis for apprehending further dealings with the disputed funds. I am therefore satisfied that the Plaintiff has demonstrated a real risk sufficient to justify preservation.
20. The resulting orders must, however, remain confined to preservation. They are not a determination that the Plaintiff owns the funds, that the funds are ultimately traceable to the loan, or that either Defendant is liable to the Plaintiff. Those questions remain for determination at the trial.
21. The result is that the Plaintiff has established the threshold for preservatory relief in respect of the identified Equity Bank and Co-operative Bank accounts.
Disposition
22. Accordingly, I make the following orders:
a) The 1st Defendant, whether by itself or through its servants, agents, employees or any person acting under its authority or instructions, is restrained from withdrawing, transferring, alienating, dissipating or otherwise dealing with the funds held in Equity Bank Account No. 1410284273604 in a manner that may defeat the subject matter of the suit, pending the hearing and determination of the suit.
b) The 2nd Defendant, whether by itself or through its servants, agents, employees or any person acting under its authority or instructions, is restrained from withdrawing, transferring, alienating, dissipating or otherwise dealing with the funds held in Co-operative Bank Account No. 01106224622001 in a manner that may defeat the subject matter of the suit, pending the hearing and determination of the suit.
c) The costs of the applications shall be in the cause.
23. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
2. By the Notice of Motion dated 31st March 2026, the Plaintiff sought freezing orders over, among other accounts, Equity Bank Account No. 1410284273604 and USD Account No. 3251260102, alleged to be held at Citibank N.A. Kenya.
3. Citibank subsequently moved the Court by its application dated 22nd April 2026, seeking to be joined for purposes of its application and for the review or variation of the order issued on 1st April 2026 in respect of USD Account No. 3251260102. Its case is that the 1st Defendant is not its customer and does not operate the account identified in the order. This application was compromised prior to this Ruling and Citibank accordingly removed from the proceedings.
4. By a further application dated 2nd June 2026, the Plaintiff sought preservatory orders over Co-operative Bank Account No. 01106224622001, which it alleges is held by the 2nd Defendant and received funds connected with the transaction forming the subject matter of this suit.
5. The Plaintiff's case is founded on a loan agreement dated 5th June 2025, pursuant to which it alleges that it advanced the 1st Defendant Kshs. 125,000,000. The Plaintiff contends that the amount was repayable together with agreed interest, bringing the amount claimed to Kshs. 170,000,000. It relies on the agreement and banking transactions said to evidence the disbursement of Kshs. 100,000,000, Kshs. 5,000,000 and Kshs. 20,000,000.
6. It is the Plaintiff's further case that the 1st Defendant failed to repay the loan and that the funds were thereafter transferred through different accounts and entities. It consequently seeks the preservation of the identified funds pending the determination of the suit.
Analysis and Determination
7. Having considered the applications, the affidavits, the rival submissions and the authorities cited, the primary issue for determination is whether the Plaintiff has met the threshold for the grant of a freezing injunction
8. A freezing or Mareva injunction is a remedy directed at preserving assets pending the determination of a claim where there is a real risk that, absent intervention by the Court, those assets may be dissipated so as to frustrate the enforcement of an eventual judgment. It is a remedy distinct from an ordinary interlocutory injunction.
9. The applicable principles were recently affirmed by the Court of Appeal in Nanji & 2 others v Exobi (Finance House) Ltd [2025] KECA 1119 (KLR). The applicant must demonstrate a good arguable case based on a pre-existing cause of action; assets within the jurisdiction; and a real risk that the assets will be removed or dissipated if the order is not granted. The balance of convenience must also favour the grant of the relief. The same principles have consistently been applied in International Air Transport Association & another v Akarim Agencies Company Ltd & 2 others [2014] eKLR and UBA Kenya Bank Ltd v Sylvia Mututi Magotsi [2015] eKLR.
10. Equally important is the caution stated by Gikonyo J in Kanduyi Holdings Ltd v Balm Kenya Foundation & another [2013] eKLR, that the remedy is not intended to pressure a defendant, strip a defendant of assets, or confer upon a claimant proprietary right over the defendant's assets. Its purpose is to prevent conduct capable of obstructing or delaying the execution of a decree that may ultimately be issued.
11. It is against those principles that the applications fall for determination.
12. The Plaintiff's claim is founded on a specific loan transaction. It has produced the agreement upon which it relies and banking records which it contends demonstrate the disbursement of Kshs. 125,000,000 to the 1st Defendant in three separate transactions. It alleges that the amount fell due but remains unpaid.
13. At this stage, the Court is not required to determine the validity of the claim or finally pronounce upon the parties' rights and obligations. The inquiry is whether the Plaintiff has demonstrated a bona fide and arguable claim founded on an existing cause of action.
14. The Plaintiff identifies Equity Bank Account No. 1410284273604 as an account into which the loan proceeds were remitted. It also identifies Co-operative Bank Account No. 01106224622001, associated with the 2nd Defendant, and alleges that funds arising from the transaction were subsequently transferred into that account.
15. The Plaintiff additionally relies on the alleged common directorship and shareholding among the entities involved. While common directorship or shareholding alone cannot justify an order against the assets of one company merely because of its association with another. I am, however, satisfied, based on the material before Court, that there is a basis in respect of Equity Bank Account No. 1410284273604 and Co-operative Bank Account No. 01106224622001. Both accounts have been specifically identified, and the material relied upon by the Plaintiff establishes, at this interlocutory stage, a sufficient connection between them and the transaction in issue.
16. A good arguable case and the existence of assets are not, by themselves, sufficient. There must also be a real risk of dissipation. As the Court of Appeal's consideration of the principles in Nanji demonstrates, the remedy is exceptional and must be supported by evidence establishing a genuine risk to the efficacy of the Court's eventual judgment.
17. The Plaintiff relies on the alleged movement of substantial sums from the 1st Defendant through different accounts and entities after the loan was advanced. It further relies on the alleged relationship between the entities and the continued non-payment of the amount claimed.
18. Non-payment, standing alone, would not establish the requisite risk. Neither would the mere existence of corporate relationships. The Court must consider the evidence as a whole.
19. In the present case, the alleged movement of the funds through different entities and accounts, coupled with the evidence relied upon in relation to the two specifically identified accounts, provides an objective basis for apprehending further dealings with the disputed funds. I am therefore satisfied that the Plaintiff has demonstrated a real risk sufficient to justify preservation.
20. The resulting orders must, however, remain confined to preservation. They are not a determination that the Plaintiff owns the funds, that the funds are ultimately traceable to the loan, or that either Defendant is liable to the Plaintiff. Those questions remain for determination at the trial.
21. The result is that the Plaintiff has established the threshold for preservatory relief in respect of the identified Equity Bank and Co-operative Bank accounts.
Disposition
22. Accordingly, I make the following orders:
a) The 1st Defendant, whether by itself or through its servants, agents, employees or any person acting under its authority or instructions, is restrained from withdrawing, transferring, alienating, dissipating or otherwise dealing with the funds held in Equity Bank Account No. 1410284273604 in a manner that may defeat the subject matter of the suit, pending the hearing and determination of the suit.
b) The 2nd Defendant, whether by itself or through its servants, agents, employees or any person acting under its authority or instructions, is restrained from withdrawing, transferring, alienating, dissipating or otherwise dealing with the funds held in Co-operative Bank Account No. 01106224622001 in a manner that may defeat the subject matter of the suit, pending the hearing and determination of the suit.
c) The costs of the applications shall be in the cause.
23. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent