1. The instant application was brought by way of a Notice of Motion dated 28 th July 2026 . The application was expressed to be brought under Article 165(6) and (7) of the Constitution of Kenya, 2010; Sections 362, 364, 365 and 367 of the Criminal Procedure Code, Cap. 75; and the inherent jurisdiction of this Honourable Court.
2. The applicant sought the following orders;-
a). This application be certified urgent and be heard on priority basis, and service be dispensed with in the first instance . (Spent)
b). This Honourable Court be pleased to call for and examine the record of the proceedings in Miscellaneous Criminal Application No. E3079 of 2026 before the Chief Magistrate's Court at Milimani, Nairobi, for the purpose of satisfying itself as to the correctness, legality, and propriety of the ex parte Orders made on 8th July 2026, and the regularity of the proceedings leading to the grant of the said Orders.
c). Upon such examination, this Honourable Court be pleased to set aside the ex parte Orders of the Chief Magistrate's Court dated 8th July 2026, in so far as the said Orders direct the preservation, freezing, or restraint of funds held in the accounts of the Applicants with the 1st and 2nd Interested Parties, for the following reasons:
(i) The Orders were made without notice to the Applicants, whose identities, addresses, and contact particulars were known to the 2nd Interested Party and once issued were only served on the Applicant 21 days after they were issued thereby violating the Applicants' right to be heard under Article 50 of the Constitution;
(ii) The learned Magistrate acted without jurisdiction by granting de facto preservation/restraint orders under the Proceeds of Crime and Anti-Money Laundering Act, Cap. 59A (ss. 81-92) POCAMLA or in the nature of POCAMLA orders, whereas such orders are exclusively within the jurisdiction of the High Court.
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(iii) The Orders against the 1st and 2nd Interested Parties prescribe materially different and irreconcilable document-production periods the Order against the 1st Interested Party covers 1st February 2024 to 7th July 2026, while the Order against the 2nd Interested Party covers only 1st February 2024 to 27th January 2026 - such that the latter cut-off date pre-dates the very transaction said to have triggered the investigation (the deposit of funds on 25th June 2026), rendering the Order inconsistent, self-contradictory, and improper on its face;
(iv) The Order against the 2nd Interested Party restrains funds in three accounts of the 1st Applicant (including a GBP account, No. 55010130008931) whereas the founding Notice of Motion sought orders in respect of only two accounts (the USD and EUR accounts), such that the subordinate court granted relief beyond what was pleaded and sought, which is irregular and illegal in revision;
(v) The 2nd Interested Party had, in any event, already unilaterally withheld and declined to credit the funds from as early as 25th June 2026, well before the ex parte Orders of 8th July 2026 were sought or granted, such that the Orders were not necessary to prevent imminent dissipation and the continued restraint is causing ongoing and unjustified prejudice to the Applicants.
(d). Pending the hearing and determination of this application inter partes, this Honourable Court be pleased to stay the operation of the said Orders to the extent that they restrain the release of the Applicants' funds, and direct the 2nd Interested Party to release and credit to the Applicants the sums of USD 278,022.00 and EUR 1,143,245.81 presently withheld.
(e). In the alternative to prayer 4, this Honourable Court be pleased to direct that the Applicants be granted access to, and an opportunity to be heard on, the record and material relied upon in support of the ex parte Orders before any further restraint is continued beyond the current review.
(f). The costs of this application be provided for.
3. The application was supported by the affidavit of Cem Wald, a Director of PAAC Fintech Limited and PAA Capital Kenya Limited sworn on 28 th July 2026.
4. The deponent stated that he is duly authorized to swear the affidavit on behalf of applicants.
5. He deposed that the Companies maintain various accounts with the 1st and 2nd Interested Parties, including USD, EUR and GBP accounts held by PAAC Fintech Limited with the 2nd Interested Party.
6. He further stated that on 25th June 2026, following repeated invitations by the 2nd Interested Party to reactivate and resume use of their accounts, the Companies transferred business funds amounting to USD 278,022.00, comprising USD 121,680.00 and USD 156,342.00, and EUR 1,143,245.81, comprising EUR 733,870.07 and EUR 409,375.74. The 2nd Interested Party thereafter declined to credit the funds to the Companies' accounts, citing an indefinite internal review, despite the Companies providing SWIFT confirmations, CR12 documents, account statements and information on the source and purpose of the funds. The ensuing correspondence is annexed and marked CW-1.
7. He went on to aver that by a demand letter dated 27th July 2026, the Companies' advocates demanded the immediate release and crediting of the funds, which letter is annexed as CW-2.
8. The 2nd Respondent subsequently informed the advocates that on 8th July 2026, the Chief Magistrate's Court at Milimani, Nairobi, in Miscellaneous Criminal Application No. E3079 of 2026, issued ex parte Orders authorising an investigator attached to the Financial Investigation Unit to access and obtain records relating to the Companies' accounts and directing preservation of the funds for 90 days. The Orders are annexed as CW-3.
9. The deponent deposes that neither he nor the Companies were served with or made aware of the Orders until 27th July 2026, notwithstanding that the 2nd Interested Party knew their identity, address and contact details and was in direct correspondence with them concerning the funds. The relevant correspondence is annexed as CW-4.
10. On advice of counsel, the deponent contended that the Orders and proceedings leading to their issuance were irregular, illegal and improper. The deponent further averred that by dint of the provisions of Sections 362 and 364 of the Criminal Procedure Code, the orders are amenable to review by this court.
11. According to him, the Orders were issued ex parte without notice to the Companies and were not properly served for 21 days thereafter, thereby violating their right to a fair hearing under Article 50 of the Constitution.
12. Secondly, the Orders are internally inconsistent as to their temporal scope. The Order against the 1st Interested Party covers 1st February 2024 to 7th July 2026, while that against the 2nd Interested Party covers 1st February 2024 to 27th January 2026, which does not encompass the 25th June 2026 transaction said to have prompted the investigation.
13. Thirdly, the Order against the 2nd Interested Party restrains three accounts, including GBP Account No. 55010130008931, whereas the Notice of Motion sought orders in respect of only the USD and EUR accounts. The subordinate court is therefore said to have granted relief beyond that pleaded or sought.
14. Fourthly, the application was brought under Sections 118 and 121 of the Criminal Procedure Code and Section 180 of the Evidence Act, yet the Orders provided for preservation and restraint of funds.
15. The deponent contended that such relief ought to have been sought under Sections 81–83 of the Proceeds of Crime and Anti-Money Laundering Act, Cap. 59A, which provide for notice to affected persons, a return date and mechanisms for variation and rescission under Section 89. He therefore contended that the statutory procedure was improperly bypassed.
16. The deponent further stated that the 2nd Interested Party had already withheld the funds from 25th June 2026, more than thirty days before the court orders were sought, and therefore the ex parte preservation Orders were unnecessary to prevent imminent dissipation of the funds.
17. The deponent went on to state that the continued restraint of the funds has caused ongoing prejudice to the Companies' business operations and contractual obligations to third parties.
18. He nevertheless maintained that the Companies do not seek to obstruct any legitimate investigation and remain willing to provide any further information reasonably required.
19. The deponent therefore moved the Court, pursuant to Article 165(6) and (7) of the Constitution and Sections 362 and 364 of the Criminal Procedure Code, to call for and examine the subordinate court record, determine the correctness, legality and propriety of the Orders and regularity of the proceedings and revise vary or set aside the ex -parte Orders as sought in the Notice of Motion.
20. The deponent concluded by stating that such intervention is just, fair and in the interests of justice.
21. The applicant filed written submissions in support of the application.
22. The Applicants submitted that, applying the test under section 362 of the Criminal Procedure Code as to the correctness, legality and propriety of the impugned orders, the orders were ripe for setting aside.
23. . The applicants relied on the decision of the late Justice Majanja in Manfred Walter Schmitt & another v Republic & another [2013] eKLR, in which the High Court set aside an order made under sections 118 and 121 of the Criminal Procedure Code and section 180 of the Evidence Act authorizing investigation and restraint of a German national's company accounts.
24. In that case, it was held that a warrant may issue only on reasonable suspicion grounded in specific facts connecting the account holder to an offence, and not on general allegations that do not point to any wrongdoing, and further that a magistrate's finding which fails to set out the grounds for treating an application as meritorious is perfunctory and cannot stand.
25. The Applicants submitted that the affidavit of CI Johnson Kioli exhibited precisely these deficiencies, asserting that without any supporting exhibit that the Applicants' director was believed to be operating a money laundering syndicate and had had his licences cancelled on account of drug trafficking, without annexing any financial intelligence report, transaction analysis or regulatory record.
26. They further submitted that the Supplementary Affidavit of Cem Wald demonstrated that this central allegation was false, as the Botswana regulator's own determination showed that the licence in question had been cancelled for administrative non-compliance, with no reference to drug trafficking or criminal conduct, and that Kenya's general FATF Grey List status said nothing about the Applicants individually.
27. It was submitted that, consistently with the position in Schmitt, the impugned orders recorded no independent evaluation of these deficiencies, reciting only boilerplate language.
28. The applicants further argued that the subordinate court lacked jurisdiction to grant what was, in substance, a POCAMLA preservation order.
29. It was submitted that the impugned orders, by preserving the Applicants' funds for 90 days, bore the defining feature of a preservation order under sections 81–92 of the Proceeds of Crime and Anti-Money Laundering Act, Cap 59A, a jurisdiction reserved to the High Court on application by the Assets Recovery Agency and subject to statutory safeguards, including notice, a return date and provision for variation or rescission under section 89, none of which had been engaged.
30. The applicants relied on Samuel Watatua & Another v Republic, Criminal Appeal No. 2 of 2013 (unreported), as quoted in Ruth Wendy Wambui v Republic [2016] eKLR, where it was held that while section 180 of the Evidence Act and sections 118 and 121 of the Criminal Procedure Code permit investigative access, once the object of an order becomes the restraint or seizure of funds, the provisions of POCAMLA must prevail.
31. On the third ground, the Applicants submitted that the orders were obtained and enforced in violation of their right to be heard. They again invoked Samuel Watatua & Another v Republic, as quoted in Ruth Wendy Wambui v Republic [2016] eKLR, where the Court of Appeal, citing the Kibiti case, held that ex parte orders freezing bank accounts or monies may be granted only for a short period where there is a risk of dissipation, and that thereafter the application must be served on all persons likely to be affected, with no final order to be made until the matter is heard inter partes, in accordance with Article 50 of the Constitution.
32. The Applicants submitted that the impugned orders gave no return date and no direction for service, and were in fact not served on them until 27th July 2026, twenty-one days after issue, despite their identity and contact particulars being known to the 2nd Interested Party throughout, resulting in their funds being frozen without any opportunity to be heard.
33. The applicant further relied on the guidelines issued by Justice Hedwig Ong'udi in Hasan Mohamed v Ethics and Anti-Corruption Commission & another [2018] KEHC 1803 (KLR), in which the High Court directed that upon issuance of orders under sections 118 and 118A of the Criminal Procedure Code, a magistrate must state the duration of the order, that such duration shall not exceed 14 days, that a return date must be fixed soon thereafter for the investigator to appraise the court and for the affected party to raise any issues, that the order may be extended by a maximum of 7 days if the court is satisfied of the need to do so, and that the affected party must be served within 48 hours of issuance.
34. The Applicants submitted that this standard was clearly not applied by the learned Magistrate in issuing the impugned orders.
35. On the fourth ground, the Applicants contended that the order against the 2nd Interested Party granted relief never sought, in that the founding application had sought orders against only two accounts, being the USD and EUR accounts, yet the order as extracted also restrained a third account, a GBP account, never pleaded in the founding motion.
36. The applicants cited Independent Electoral and Boundaries Commission & another v Mule & 3 others, Civil Appeal No. 219 of 2013 [2014] KECA 890 (KLR), in which it was held that parties are bound by their pleadings, which confine the issues and reliefs upon which a court may pronounce, and that a court which travels beyond them commits an error. It was submitted that the order restraining the GBP account was accordingly granted ultra petita and was irregular.
37. On the fifth and final ground, the Applicants submitted that the order against the 2nd Interested Party was self-contradictory on its face, in that it limited document production to the period 1st February 2024 to 27th January 2026, a cut-off date preceding by five months the 25th June 2026 transaction said to have triggered the investigation, while simultaneously purporting to restrain funds deposited after that date, rendering it incapable of rational execution.
38. In conclusion, the Applicants prayed that this Honourable Court allow the Notice of Motion dated 28th July 2026 in terms of prayers 3 and 4 thereof, and set aside the ex parte orders of the Chief Magistrate's Court dated 8th July 2026 in Miscellaneous Criminal Application No. E3079 of 2026, with costs.
RESPONDENTS’ SUBMISSIONS.
39. The Respondents oppose the Applicants’ Notice of Motion dated 28th July 2026, supported by the Replying Affidavit sworn by Chief Inspector Johnson Kioli on 17th August 2026.
40. According to the respondents, the impugned orders authorized an investigator from the Financial Investigations Unit (FIU) to access bank records and preserve funds held in accounts linked to the Applicants for a period of 90 days.
41. The Respondents contended that the application is baseless, an abuse of the court process and founded on a misunderstanding of the law. They maintained that the Chief Magistrate acted within jurisdiction and properly exercised the court’s discretion on the basis of the material placed before him and that the orders were therefore lawful.
42. On the question whether the Chief Magistrate’s Court had jurisdiction to issue the impugned orders, the Respondents submitted that the Applicants erroneously characterized the orders as long-term 90-day account preservation or restraint orders falling exclusively within the jurisdiction of the High Court under the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA), Cap. 59A.
43. The respondents contended that the investigation was instead commenced under Section 180 of the Evidence Act, Cap. 80, read together with Sections 118 and 121 of the Criminal Procedure Code, Cap. 75.
44. According to the Respondents, the primary purpose of the orders was to enable the FIU to investigate and obtain banking records, while preservation of the funds was merely ancillary and incidental to that investigative mandate.
45. The respondents further submitted that courts are entitled to preserve the subject matter of an investigation pending completion of the inquiry so as to prevent dissipation of the funds and ensure the effectiveness of the investigation.
46. In support of that position, the Respondents relied on Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others [2014] eKLR, where the Court of Appeal held that the High Court’s supervisory jurisdiction does not oust the concurrent jurisdiction of subordinate courts where such jurisdiction is expressly conferred by statute. The Respondents therefore contend that the Magistrate possessed statutory authority to issue the investigative warrants in question.
47. The Respondents further relied on Ng'ang'a v Republic (DCI Western Region Office); Ng'ang'a (Interested Party) (Criminal Revision E338 of 2024) [2024] KEHC 16436 (KLR) . They submitted that in that case the High Court held that Section 180 of the Evidence Act must be read together with Sections 118 and 121 of the Criminal Procedure Code. The Court further held, according to the Respondents, that because money held in a bank account cannot be physically seized, freezing or preserving the funds constitutes a practical and necessary means of preserving evidence pending investigation.
48. The Court observed that the provisions should be understood in light of their object, namely, the preservation of evidence to facilitate the investigation of crime.
49. The Respondents also relied on Innocent Momanyi Obiri v Ethics & Anti-Corruption Commission & another (2019) KEHC 3951 (KLR), where the Court held that applications made under Section 118 of the Criminal Procedure Code and Section 180 of the Evidence Act may properly be made ex parte. The Court further observed that requiring notice to a suspect in such circumstances would “destroy the very fabric of forensic investigations.”
50. On that basis, the Respondents argued that the impugned order was an investigative tool rather than a final determination of proprietary rights under POCAMLA.
51. They maintained that the 90-day preservation period was temporary and intended to protect the subject matter of the investigation, and therefore fell within the Magistrate’s power to issue ancillary orders connected to the primary investigative order.
52. On whether the orders were procedurally proper despite having been issued ex parte, the Respondents submitted that the Applicants’ reliance on Article 50 of the Constitution was misplaced.
53. They contended that an ex parte application constitutes an exception to the audi alteram partem rule and is permissible where giving notice would defeat the purpose of the application.
54. In the present case, the investigation was at a preliminary stage and the investigator had reasonable suspicion that the Applicants were operating a money laundering syndicate.
55. The Respondents referred to paragraph 7 of Chief Inspector Johnson Kioli’s Replying Affidavit, which they stated identified “grave and legitimate concerns of fraud and material misrepresentation.”
56. The respondents further argued that advance notice could have enabled the Applicants to dissipate the funds, destroy records or evade investigation, thereby frustrating the very purpose of the proceedings.
57. The Respondents relied further on Republic v. DPP & Another Ex Parte Chamanlal Vrajlal Kamani & 2 Others [2015] eKLR . They submitted that, in considering the right to a fair hearing, the Supreme Court recognized that an ex parte application may legitimately be made where there is a real apprehension that the right to a fair hearing would otherwise be rendered nugatory. The Respondents therefore maintained that the circumstances of the investigation justified the initial issuance of the orders without notice.
58. The respondents further contended that although the Applicants were served 21 days after the orders were issued, they subsequently became aware of the orders and moved the court, thereby having an opportunity to ventilate their grievances.
59. With regard to the alleged contradictions in the impugned orders, the Respondents submit that the inclusion of a GBP account in the order issued against UBA Kenya Bank Ltd, despite that account not having been specifically pleaded, and the reference to a cut-off date of 27th January 2026 as opposed to the date appearing in the Equity Bank order, do not render the entire order illegal.
60. They characterized the discrepancies as administrative or clerical matters capable of correction by the subordinate court upon review. They further contend that the inclusion of the GBP account was an administrative addition intended to facilitate a comprehensive investigation, particularly because the bank had already been engaged in the matter.
61. The Respondents further relied on paragraph 7 of the Replying Affidavit to clarify the accounts forming the subject of the investigation, namely PAAC Fintech Ltd Account No. 55010130008959 in USD and Account No. 55010130008940 in EURO, in which preserved funds were stated to amount to USD 278,022 and EUR 1,146,810.81 respectively. They argued that although the order referred to investigation of documents up to 27th January 2026, it also expressly preserved the funds for 90 days, including funds received on 25th June 2026.
62. In their view, the preservation of the funds, which they characterize as the Applicants’ principal grievance, was valid and was not rendered inconsistent by the date discrepancy.
63. The Court was consequently urged to consider the substance rather than the form of the order and to treat any minor discrepancy in the dates as a matter capable of correction by the Magistrate’s Court without invoking the High Court’s revisionary jurisdiction.
64. On the threshold for revision, the Respondents contended that the Applicants had failed to demonstrate any illegality, irregularity, impropriety or incorrectness in the proceedings before the subordinate court.
65. According to the respondents the Applicants’ allegations of being unfairly targeted were self-serving and submitted that those allegations failed to take into account the serious allegations under investigation, including drug trafficking, money laundering and regulatory non-compliance allegedly involving the Applicants’ director.
66. They further referred to the FIU’s mandate to investigate serious economic crimes and, relying on paragraph 14 of the Replying Affidavit, referred to Kenya’s status on the Financial Action Task Force (FATF) Grey List. The Respondents emphasize the seriousness of the offences under investigation, including possession of proceeds of crime and abetting money laundering.
67. The Respondents also addressed the Applicants’ contention that the preservation order was unnecessary because UBA Kenya Bank Ltd had already withheld the funds. The respondents submitted that the 90-day preservation order provided a clear legal basis upon which the bank could continue holding the funds and thereby protected it from potential legal proceedings by the Applicants.
68. Further, the respondents invoked Section 19 of POCAMLA. They maintained that the remaining complaints concerning technical aspects of the order are matters which may properly be addressed by the subordinate court upon review or mention and do not justify the exercise of the High Court’s revisionary jurisdiction, which, according to their submission, is intended to correct errors of law and jurisdiction.
69. In conclusion, the Respondents submitted that the Chief Magistrate’s Court acted lawfully and within its jurisdiction in issuing the impugned orders, which were necessary to facilitate an ongoing criminal investigation.
70. The respondents maintained that the ex parte procedure was justified by the need to prevent dissipation of funds and destruction or loss of evidence.
ANALYSIS AND DETERMINATION
71. The applicants approached this court by way of a revision seek the specific orders set out on the face of the application.
72. Upon review of the pleadings filed and the accompanying submissions, the following issues for determination arise;-
a). whether the issues raised by the applicants are capable of resolution by way of revision as sought by the applicants;
b). whether the Chief Magistrates Court had the jurisdiction to issue the impugned orders;
c). whether the failure by the learned Hon Magistrate to issue a return date for inter-partes hearing amounted to a breach of the fair hearing right of the applicants;
d). whether the inclusion in the order of an account that had not been included in the prayers by the Investigating Officer was legal and correct;
e). whether the inconsistencies in the orders issued by the learned Honorable magistrate rendered the orders incurably defective.
73. The High Court in exercise of its revisionary jurisdiction under Article 165(6) of the Constitution and Sections 362 and 364 of the Criminal Procedure Code looks into the legality, correctness, propriety and regularity of proceedings or orders issued by the lower courts.
74. In Ng’ang’a v Republic (DCI Western Region Office); Ng’ang’a (Interested Party) (Criminal Revision E338 of 2024) [2024] KEHC 16436 (KLR) (18 December 2024) (Ruling): the court held;-
“Section 362 and 364 of the Criminal Procedure Code granted the High Court supervisory powers over the lower Court. Under Section 362 CPC the court had power to ‘call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. Section 364 provided for the powers of the High Court on revision, which flowed from article 165 of the Constitution.
The prohibition order granted by the magistrate was in nature of freezing of bank accounts in order to enable the respondent to carry out investigations following a complaint by the interested party. The nature of the orders sought and issued as highlighted in this ruling were to warrant investigation by the respondent. Had the applicant been notified of the application, warrants of investigation and orders sought prior to the issuance of the ex-parte orders, there was likelihood that the applicant could have interfered with or subverted the investigation. Such a possibility warrants issuing of such orders in a manner that the money in the bank account was safeguarded. While the applicant's right to be heard was a fundamental right, the timing of the notification must balance the need for a fair trial with the protection of the ongoing investigation. The balance justified the issuance of the ex-parte orders, given the circumstances at the time. Disclosing the fact of the intended investigation would defeat justice.
75. The issues raised by the applicants touch on the regularity, legality and correctness of the orders issued by the Learned chief Magistrate’s Court thus this court has the necessary jurisdiction to inquire into the same. The objection taken by the respondents on this score is thus unmeritorious and is accordingly rejected.
76. The applicants have taken issue with the learned Honorable Magistrate’s court jurisdiction to issue the impugned orders citing the fact that the investigators invoked the incorrect provisions of the law in seeking to obtain what they characterize as orders only capable of being issued by a court under the Proceeds of Crime and Anti Money Laundering Act (POCAMLA).
77. The applicants argued that under sections 118 and 121 of the Criminal Procedure Code the learned Magistrate could not legally issue freezing orders of their accounts for a period of 90 days since according to the applicants that was only feasible under the POCAMLA.
78. This court has closely scrutinized the application filed in the lower court by the respondents and on the face of it the application was premised on the provisions of Sections 118 and 121 of the Criminal Procedure Code and Section 180 of the Evidence Act.
79. In this courts view, a court issuing orders to investigate accounts held in a particular bank has the requisite jurisdiction to preserve the proceeds held in that particular account since to order investigations into account without freezing the funds there in would be an exercise in futility.
80. The reality today is that all targeted accounts in any bank if the funds held therein are not preserved for the period of the investigations are susceptible to dissipation thus making the job of law enforcement agencies practically impossible.
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2. The applicant sought the following orders;-
a). This application be certified urgent and be heard on priority basis, and service be dispensed with in the first instance . (Spent)
b). This Honourable Court be pleased to call for and examine the record of the proceedings in Miscellaneous Criminal Application No. E3079 of 2026 before the Chief Magistrate's Court at Milimani, Nairobi, for the purpose of satisfying itself as to the correctness, legality, and propriety of the ex parte Orders made on 8th July 2026, and the regularity of the proceedings leading to the grant of the said Orders.
c). Upon such examination, this Honourable Court be pleased to set aside the ex parte Orders of the Chief Magistrate's Court dated 8th July 2026, in so far as the said Orders direct the preservation, freezing, or restraint of funds held in the accounts of the Applicants with the 1st and 2nd Interested Parties, for the following reasons:
(i) The Orders were made without notice to the Applicants, whose identities, addresses, and contact particulars were known to the 2nd Interested Party and once issued were only served on the Applicant 21 days after they were issued thereby violating the Applicants' right to be heard under Article 50 of the Constitution;
(ii) The learned Magistrate acted without jurisdiction by granting de facto preservation/restraint orders under the Proceeds of Crime and Anti-Money Laundering Act, Cap. 59A (ss. 81-92) POCAMLA or in the nature of POCAMLA orders, whereas such orders are exclusively within the jurisdiction of the High Court.
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(iii) The Orders against the 1st and 2nd Interested Parties prescribe materially different and irreconcilable document-production periods the Order against the 1st Interested Party covers 1st February 2024 to 7th July 2026, while the Order against the 2nd Interested Party covers only 1st February 2024 to 27th January 2026 - such that the latter cut-off date pre-dates the very transaction said to have triggered the investigation (the deposit of funds on 25th June 2026), rendering the Order inconsistent, self-contradictory, and improper on its face;
(iv) The Order against the 2nd Interested Party restrains funds in three accounts of the 1st Applicant (including a GBP account, No. 55010130008931) whereas the founding Notice of Motion sought orders in respect of only two accounts (the USD and EUR accounts), such that the subordinate court granted relief beyond what was pleaded and sought, which is irregular and illegal in revision;
(v) The 2nd Interested Party had, in any event, already unilaterally withheld and declined to credit the funds from as early as 25th June 2026, well before the ex parte Orders of 8th July 2026 were sought or granted, such that the Orders were not necessary to prevent imminent dissipation and the continued restraint is causing ongoing and unjustified prejudice to the Applicants.
(d). Pending the hearing and determination of this application inter partes, this Honourable Court be pleased to stay the operation of the said Orders to the extent that they restrain the release of the Applicants' funds, and direct the 2nd Interested Party to release and credit to the Applicants the sums of USD 278,022.00 and EUR 1,143,245.81 presently withheld.
(e). In the alternative to prayer 4, this Honourable Court be pleased to direct that the Applicants be granted access to, and an opportunity to be heard on, the record and material relied upon in support of the ex parte Orders before any further restraint is continued beyond the current review.
(f). The costs of this application be provided for.
3. The application was supported by the affidavit of Cem Wald, a Director of PAAC Fintech Limited and PAA Capital Kenya Limited sworn on 28 th July 2026.
4. The deponent stated that he is duly authorized to swear the affidavit on behalf of applicants.
5. He deposed that the Companies maintain various accounts with the 1st and 2nd Interested Parties, including USD, EUR and GBP accounts held by PAAC Fintech Limited with the 2nd Interested Party.
6. He further stated that on 25th June 2026, following repeated invitations by the 2nd Interested Party to reactivate and resume use of their accounts, the Companies transferred business funds amounting to USD 278,022.00, comprising USD 121,680.00 and USD 156,342.00, and EUR 1,143,245.81, comprising EUR 733,870.07 and EUR 409,375.74. The 2nd Interested Party thereafter declined to credit the funds to the Companies' accounts, citing an indefinite internal review, despite the Companies providing SWIFT confirmations, CR12 documents, account statements and information on the source and purpose of the funds. The ensuing correspondence is annexed and marked CW-1.
7. He went on to aver that by a demand letter dated 27th July 2026, the Companies' advocates demanded the immediate release and crediting of the funds, which letter is annexed as CW-2.
8. The 2nd Respondent subsequently informed the advocates that on 8th July 2026, the Chief Magistrate's Court at Milimani, Nairobi, in Miscellaneous Criminal Application No. E3079 of 2026, issued ex parte Orders authorising an investigator attached to the Financial Investigation Unit to access and obtain records relating to the Companies' accounts and directing preservation of the funds for 90 days. The Orders are annexed as CW-3.
9. The deponent deposes that neither he nor the Companies were served with or made aware of the Orders until 27th July 2026, notwithstanding that the 2nd Interested Party knew their identity, address and contact details and was in direct correspondence with them concerning the funds. The relevant correspondence is annexed as CW-4.
10. On advice of counsel, the deponent contended that the Orders and proceedings leading to their issuance were irregular, illegal and improper. The deponent further averred that by dint of the provisions of Sections 362 and 364 of the Criminal Procedure Code, the orders are amenable to review by this court.
11. According to him, the Orders were issued ex parte without notice to the Companies and were not properly served for 21 days thereafter, thereby violating their right to a fair hearing under Article 50 of the Constitution.
12. Secondly, the Orders are internally inconsistent as to their temporal scope. The Order against the 1st Interested Party covers 1st February 2024 to 7th July 2026, while that against the 2nd Interested Party covers 1st February 2024 to 27th January 2026, which does not encompass the 25th June 2026 transaction said to have prompted the investigation.
13. Thirdly, the Order against the 2nd Interested Party restrains three accounts, including GBP Account No. 55010130008931, whereas the Notice of Motion sought orders in respect of only the USD and EUR accounts. The subordinate court is therefore said to have granted relief beyond that pleaded or sought.
14. Fourthly, the application was brought under Sections 118 and 121 of the Criminal Procedure Code and Section 180 of the Evidence Act, yet the Orders provided for preservation and restraint of funds.
15. The deponent contended that such relief ought to have been sought under Sections 81–83 of the Proceeds of Crime and Anti-Money Laundering Act, Cap. 59A, which provide for notice to affected persons, a return date and mechanisms for variation and rescission under Section 89. He therefore contended that the statutory procedure was improperly bypassed.
16. The deponent further stated that the 2nd Interested Party had already withheld the funds from 25th June 2026, more than thirty days before the court orders were sought, and therefore the ex parte preservation Orders were unnecessary to prevent imminent dissipation of the funds.
17. The deponent went on to state that the continued restraint of the funds has caused ongoing prejudice to the Companies' business operations and contractual obligations to third parties.
18. He nevertheless maintained that the Companies do not seek to obstruct any legitimate investigation and remain willing to provide any further information reasonably required.
19. The deponent therefore moved the Court, pursuant to Article 165(6) and (7) of the Constitution and Sections 362 and 364 of the Criminal Procedure Code, to call for and examine the subordinate court record, determine the correctness, legality and propriety of the Orders and regularity of the proceedings and revise vary or set aside the ex -parte Orders as sought in the Notice of Motion.
20. The deponent concluded by stating that such intervention is just, fair and in the interests of justice.
21. The applicant filed written submissions in support of the application.
22. The Applicants submitted that, applying the test under section 362 of the Criminal Procedure Code as to the correctness, legality and propriety of the impugned orders, the orders were ripe for setting aside.
23. . The applicants relied on the decision of the late Justice Majanja in Manfred Walter Schmitt & another v Republic & another [2013] eKLR, in which the High Court set aside an order made under sections 118 and 121 of the Criminal Procedure Code and section 180 of the Evidence Act authorizing investigation and restraint of a German national's company accounts.
24. In that case, it was held that a warrant may issue only on reasonable suspicion grounded in specific facts connecting the account holder to an offence, and not on general allegations that do not point to any wrongdoing, and further that a magistrate's finding which fails to set out the grounds for treating an application as meritorious is perfunctory and cannot stand.
25. The Applicants submitted that the affidavit of CI Johnson Kioli exhibited precisely these deficiencies, asserting that without any supporting exhibit that the Applicants' director was believed to be operating a money laundering syndicate and had had his licences cancelled on account of drug trafficking, without annexing any financial intelligence report, transaction analysis or regulatory record.
26. They further submitted that the Supplementary Affidavit of Cem Wald demonstrated that this central allegation was false, as the Botswana regulator's own determination showed that the licence in question had been cancelled for administrative non-compliance, with no reference to drug trafficking or criminal conduct, and that Kenya's general FATF Grey List status said nothing about the Applicants individually.
27. It was submitted that, consistently with the position in Schmitt, the impugned orders recorded no independent evaluation of these deficiencies, reciting only boilerplate language.
28. The applicants further argued that the subordinate court lacked jurisdiction to grant what was, in substance, a POCAMLA preservation order.
29. It was submitted that the impugned orders, by preserving the Applicants' funds for 90 days, bore the defining feature of a preservation order under sections 81–92 of the Proceeds of Crime and Anti-Money Laundering Act, Cap 59A, a jurisdiction reserved to the High Court on application by the Assets Recovery Agency and subject to statutory safeguards, including notice, a return date and provision for variation or rescission under section 89, none of which had been engaged.
30. The applicants relied on Samuel Watatua & Another v Republic, Criminal Appeal No. 2 of 2013 (unreported), as quoted in Ruth Wendy Wambui v Republic [2016] eKLR, where it was held that while section 180 of the Evidence Act and sections 118 and 121 of the Criminal Procedure Code permit investigative access, once the object of an order becomes the restraint or seizure of funds, the provisions of POCAMLA must prevail.
31. On the third ground, the Applicants submitted that the orders were obtained and enforced in violation of their right to be heard. They again invoked Samuel Watatua & Another v Republic, as quoted in Ruth Wendy Wambui v Republic [2016] eKLR, where the Court of Appeal, citing the Kibiti case, held that ex parte orders freezing bank accounts or monies may be granted only for a short period where there is a risk of dissipation, and that thereafter the application must be served on all persons likely to be affected, with no final order to be made until the matter is heard inter partes, in accordance with Article 50 of the Constitution.
32. The Applicants submitted that the impugned orders gave no return date and no direction for service, and were in fact not served on them until 27th July 2026, twenty-one days after issue, despite their identity and contact particulars being known to the 2nd Interested Party throughout, resulting in their funds being frozen without any opportunity to be heard.
33. The applicant further relied on the guidelines issued by Justice Hedwig Ong'udi in Hasan Mohamed v Ethics and Anti-Corruption Commission & another [2018] KEHC 1803 (KLR), in which the High Court directed that upon issuance of orders under sections 118 and 118A of the Criminal Procedure Code, a magistrate must state the duration of the order, that such duration shall not exceed 14 days, that a return date must be fixed soon thereafter for the investigator to appraise the court and for the affected party to raise any issues, that the order may be extended by a maximum of 7 days if the court is satisfied of the need to do so, and that the affected party must be served within 48 hours of issuance.
34. The Applicants submitted that this standard was clearly not applied by the learned Magistrate in issuing the impugned orders.
35. On the fourth ground, the Applicants contended that the order against the 2nd Interested Party granted relief never sought, in that the founding application had sought orders against only two accounts, being the USD and EUR accounts, yet the order as extracted also restrained a third account, a GBP account, never pleaded in the founding motion.
36. The applicants cited Independent Electoral and Boundaries Commission & another v Mule & 3 others, Civil Appeal No. 219 of 2013 [2014] KECA 890 (KLR), in which it was held that parties are bound by their pleadings, which confine the issues and reliefs upon which a court may pronounce, and that a court which travels beyond them commits an error. It was submitted that the order restraining the GBP account was accordingly granted ultra petita and was irregular.
37. On the fifth and final ground, the Applicants submitted that the order against the 2nd Interested Party was self-contradictory on its face, in that it limited document production to the period 1st February 2024 to 27th January 2026, a cut-off date preceding by five months the 25th June 2026 transaction said to have triggered the investigation, while simultaneously purporting to restrain funds deposited after that date, rendering it incapable of rational execution.
38. In conclusion, the Applicants prayed that this Honourable Court allow the Notice of Motion dated 28th July 2026 in terms of prayers 3 and 4 thereof, and set aside the ex parte orders of the Chief Magistrate's Court dated 8th July 2026 in Miscellaneous Criminal Application No. E3079 of 2026, with costs.
RESPONDENTS’ SUBMISSIONS.
39. The Respondents oppose the Applicants’ Notice of Motion dated 28th July 2026, supported by the Replying Affidavit sworn by Chief Inspector Johnson Kioli on 17th August 2026.
40. According to the respondents, the impugned orders authorized an investigator from the Financial Investigations Unit (FIU) to access bank records and preserve funds held in accounts linked to the Applicants for a period of 90 days.
41. The Respondents contended that the application is baseless, an abuse of the court process and founded on a misunderstanding of the law. They maintained that the Chief Magistrate acted within jurisdiction and properly exercised the court’s discretion on the basis of the material placed before him and that the orders were therefore lawful.
42. On the question whether the Chief Magistrate’s Court had jurisdiction to issue the impugned orders, the Respondents submitted that the Applicants erroneously characterized the orders as long-term 90-day account preservation or restraint orders falling exclusively within the jurisdiction of the High Court under the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA), Cap. 59A.
43. The respondents contended that the investigation was instead commenced under Section 180 of the Evidence Act, Cap. 80, read together with Sections 118 and 121 of the Criminal Procedure Code, Cap. 75.
44. According to the Respondents, the primary purpose of the orders was to enable the FIU to investigate and obtain banking records, while preservation of the funds was merely ancillary and incidental to that investigative mandate.
45. The respondents further submitted that courts are entitled to preserve the subject matter of an investigation pending completion of the inquiry so as to prevent dissipation of the funds and ensure the effectiveness of the investigation.
46. In support of that position, the Respondents relied on Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others [2014] eKLR, where the Court of Appeal held that the High Court’s supervisory jurisdiction does not oust the concurrent jurisdiction of subordinate courts where such jurisdiction is expressly conferred by statute. The Respondents therefore contend that the Magistrate possessed statutory authority to issue the investigative warrants in question.
47. The Respondents further relied on Ng'ang'a v Republic (DCI Western Region Office); Ng'ang'a (Interested Party) (Criminal Revision E338 of 2024) [2024] KEHC 16436 (KLR) . They submitted that in that case the High Court held that Section 180 of the Evidence Act must be read together with Sections 118 and 121 of the Criminal Procedure Code. The Court further held, according to the Respondents, that because money held in a bank account cannot be physically seized, freezing or preserving the funds constitutes a practical and necessary means of preserving evidence pending investigation.
48. The Court observed that the provisions should be understood in light of their object, namely, the preservation of evidence to facilitate the investigation of crime.
49. The Respondents also relied on Innocent Momanyi Obiri v Ethics & Anti-Corruption Commission & another (2019) KEHC 3951 (KLR), where the Court held that applications made under Section 118 of the Criminal Procedure Code and Section 180 of the Evidence Act may properly be made ex parte. The Court further observed that requiring notice to a suspect in such circumstances would “destroy the very fabric of forensic investigations.”
50. On that basis, the Respondents argued that the impugned order was an investigative tool rather than a final determination of proprietary rights under POCAMLA.
51. They maintained that the 90-day preservation period was temporary and intended to protect the subject matter of the investigation, and therefore fell within the Magistrate’s power to issue ancillary orders connected to the primary investigative order.
52. On whether the orders were procedurally proper despite having been issued ex parte, the Respondents submitted that the Applicants’ reliance on Article 50 of the Constitution was misplaced.
53. They contended that an ex parte application constitutes an exception to the audi alteram partem rule and is permissible where giving notice would defeat the purpose of the application.
54. In the present case, the investigation was at a preliminary stage and the investigator had reasonable suspicion that the Applicants were operating a money laundering syndicate.
55. The Respondents referred to paragraph 7 of Chief Inspector Johnson Kioli’s Replying Affidavit, which they stated identified “grave and legitimate concerns of fraud and material misrepresentation.”
56. The respondents further argued that advance notice could have enabled the Applicants to dissipate the funds, destroy records or evade investigation, thereby frustrating the very purpose of the proceedings.
57. The Respondents relied further on Republic v. DPP & Another Ex Parte Chamanlal Vrajlal Kamani & 2 Others [2015] eKLR . They submitted that, in considering the right to a fair hearing, the Supreme Court recognized that an ex parte application may legitimately be made where there is a real apprehension that the right to a fair hearing would otherwise be rendered nugatory. The Respondents therefore maintained that the circumstances of the investigation justified the initial issuance of the orders without notice.
58. The respondents further contended that although the Applicants were served 21 days after the orders were issued, they subsequently became aware of the orders and moved the court, thereby having an opportunity to ventilate their grievances.
59. With regard to the alleged contradictions in the impugned orders, the Respondents submit that the inclusion of a GBP account in the order issued against UBA Kenya Bank Ltd, despite that account not having been specifically pleaded, and the reference to a cut-off date of 27th January 2026 as opposed to the date appearing in the Equity Bank order, do not render the entire order illegal.
60. They characterized the discrepancies as administrative or clerical matters capable of correction by the subordinate court upon review. They further contend that the inclusion of the GBP account was an administrative addition intended to facilitate a comprehensive investigation, particularly because the bank had already been engaged in the matter.
61. The Respondents further relied on paragraph 7 of the Replying Affidavit to clarify the accounts forming the subject of the investigation, namely PAAC Fintech Ltd Account No. 55010130008959 in USD and Account No. 55010130008940 in EURO, in which preserved funds were stated to amount to USD 278,022 and EUR 1,146,810.81 respectively. They argued that although the order referred to investigation of documents up to 27th January 2026, it also expressly preserved the funds for 90 days, including funds received on 25th June 2026.
62. In their view, the preservation of the funds, which they characterize as the Applicants’ principal grievance, was valid and was not rendered inconsistent by the date discrepancy.
63. The Court was consequently urged to consider the substance rather than the form of the order and to treat any minor discrepancy in the dates as a matter capable of correction by the Magistrate’s Court without invoking the High Court’s revisionary jurisdiction.
64. On the threshold for revision, the Respondents contended that the Applicants had failed to demonstrate any illegality, irregularity, impropriety or incorrectness in the proceedings before the subordinate court.
65. According to the respondents the Applicants’ allegations of being unfairly targeted were self-serving and submitted that those allegations failed to take into account the serious allegations under investigation, including drug trafficking, money laundering and regulatory non-compliance allegedly involving the Applicants’ director.
66. They further referred to the FIU’s mandate to investigate serious economic crimes and, relying on paragraph 14 of the Replying Affidavit, referred to Kenya’s status on the Financial Action Task Force (FATF) Grey List. The Respondents emphasize the seriousness of the offences under investigation, including possession of proceeds of crime and abetting money laundering.
67. The Respondents also addressed the Applicants’ contention that the preservation order was unnecessary because UBA Kenya Bank Ltd had already withheld the funds. The respondents submitted that the 90-day preservation order provided a clear legal basis upon which the bank could continue holding the funds and thereby protected it from potential legal proceedings by the Applicants.
68. Further, the respondents invoked Section 19 of POCAMLA. They maintained that the remaining complaints concerning technical aspects of the order are matters which may properly be addressed by the subordinate court upon review or mention and do not justify the exercise of the High Court’s revisionary jurisdiction, which, according to their submission, is intended to correct errors of law and jurisdiction.
69. In conclusion, the Respondents submitted that the Chief Magistrate’s Court acted lawfully and within its jurisdiction in issuing the impugned orders, which were necessary to facilitate an ongoing criminal investigation.
70. The respondents maintained that the ex parte procedure was justified by the need to prevent dissipation of funds and destruction or loss of evidence.
ANALYSIS AND DETERMINATION
71. The applicants approached this court by way of a revision seek the specific orders set out on the face of the application.
72. Upon review of the pleadings filed and the accompanying submissions, the following issues for determination arise;-
a). whether the issues raised by the applicants are capable of resolution by way of revision as sought by the applicants;
b). whether the Chief Magistrates Court had the jurisdiction to issue the impugned orders;
c). whether the failure by the learned Hon Magistrate to issue a return date for inter-partes hearing amounted to a breach of the fair hearing right of the applicants;
d). whether the inclusion in the order of an account that had not been included in the prayers by the Investigating Officer was legal and correct;
e). whether the inconsistencies in the orders issued by the learned Honorable magistrate rendered the orders incurably defective.
73. The High Court in exercise of its revisionary jurisdiction under Article 165(6) of the Constitution and Sections 362 and 364 of the Criminal Procedure Code looks into the legality, correctness, propriety and regularity of proceedings or orders issued by the lower courts.
74. In Ng’ang’a v Republic (DCI Western Region Office); Ng’ang’a (Interested Party) (Criminal Revision E338 of 2024) [2024] KEHC 16436 (KLR) (18 December 2024) (Ruling): the court held;-
“Section 362 and 364 of the Criminal Procedure Code granted the High Court supervisory powers over the lower Court. Under Section 362 CPC the court had power to ‘call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. Section 364 provided for the powers of the High Court on revision, which flowed from article 165 of the Constitution.
The prohibition order granted by the magistrate was in nature of freezing of bank accounts in order to enable the respondent to carry out investigations following a complaint by the interested party. The nature of the orders sought and issued as highlighted in this ruling were to warrant investigation by the respondent. Had the applicant been notified of the application, warrants of investigation and orders sought prior to the issuance of the ex-parte orders, there was likelihood that the applicant could have interfered with or subverted the investigation. Such a possibility warrants issuing of such orders in a manner that the money in the bank account was safeguarded. While the applicant's right to be heard was a fundamental right, the timing of the notification must balance the need for a fair trial with the protection of the ongoing investigation. The balance justified the issuance of the ex-parte orders, given the circumstances at the time. Disclosing the fact of the intended investigation would defeat justice.
75. The issues raised by the applicants touch on the regularity, legality and correctness of the orders issued by the Learned chief Magistrate’s Court thus this court has the necessary jurisdiction to inquire into the same. The objection taken by the respondents on this score is thus unmeritorious and is accordingly rejected.
76. The applicants have taken issue with the learned Honorable Magistrate’s court jurisdiction to issue the impugned orders citing the fact that the investigators invoked the incorrect provisions of the law in seeking to obtain what they characterize as orders only capable of being issued by a court under the Proceeds of Crime and Anti Money Laundering Act (POCAMLA).
77. The applicants argued that under sections 118 and 121 of the Criminal Procedure Code the learned Magistrate could not legally issue freezing orders of their accounts for a period of 90 days since according to the applicants that was only feasible under the POCAMLA.
78. This court has closely scrutinized the application filed in the lower court by the respondents and on the face of it the application was premised on the provisions of Sections 118 and 121 of the Criminal Procedure Code and Section 180 of the Evidence Act.
79. In this courts view, a court issuing orders to investigate accounts held in a particular bank has the requisite jurisdiction to preserve the proceeds held in that particular account since to order investigations into account without freezing the funds there in would be an exercise in futility.
80. The reality today is that all targeted accounts in any bank if the funds held therein are not preserved for the period of the investigations are susceptible to dissipation thus making the job of law enforcement agencies practically impossible.
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