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The Applicant being aggrieved by the orders issued in Kisii Chief Magistrate’s Court Misc Application No. E196 of 2025 whereby the 1st Respondent applied for and obtained ex parte orders to freeze the Applicant’s accounts held at the 2nd and 3rd Respondents. The applicant came to this court under Article 165 (6) and 165 (7) of the Constitution. 2. Article 165(6) provides that the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi judicial function. Sub article 7 provides that for purposes of exercising that jurisdiction, this Honourable court may call for the record of any proceedings before any subordinate court or person, body or authority and may make any order or give any direction . The applicant deponed that he engaged with Lucy Wangui Mathenge the accused in Kisii MCCR/E1137/2025 in a car sale transaction where he sold the said Lucy motor vehicle registration number KBT 108 U Toyota Premio and the said Lucy paid the price of Kshs. 730,000/= but he did not inquire into the source of the funds . Also that he was not informed about the said application and orders and that the freezing orders affected his business . Further that he was not invited to record a statement and that there was no wrong doing on his part on the fraud . He said that investigations had taken about one month as at the time of swearing of the affidavit and the investigations were not yet complete and that it is clear that the respondent was on a fishing expedition.
In it’s response to the application, the 1st respondent filed a Replying affidavit Affidavit dated 17th September 2025. The Affidavit is sworn by one Detective Juma Muchenje the investigating officer herein , he said he is making inquiries into alleged offences of obtaining money by false pretenses , making of a document without authority and uttering of a false document contrary to sections 313, 356(a) and 353 of the penal code respectively a case reported at Nyanchwa Police Station under OB. 55 of 18th of July 2025.
He told this court that the complainant in the investigations is one Laxmichard Virchand Gutka while the suspects are Lucy Wangui Mathenge, Robin Osindi Mosiori (the applicant herein) among others.
He said that the alleged offences were committed on diverse dates between 2020 and July, 2025 in Kitutu Central sub-county within Kisii County, whereby the complainant Laxmichand Virchand Gutka was tricked by the suspects into believing that they had won a road construction tenders within the Republic of Kenya and had nominated him to partner in the funding of the projects.
He said that his investigations have established that the accused obtained by false pretense a sum of three hundred and fifty million Kenya shillings i.e. Kshs. 350,000,000/= from from the complainant.
He proceeded to seek orders in Kisii MISC CR. NO E196 2025 and obtained freezing orders under Sections 118, 118a and 121 of CPC, Sections 180 (1) and (2) of the Evidence Act and section 53(A) of the Proceeds of Crime and Anti money laundering Act (POCAMLA) for purposes of investigations and in the interest of justice and hence orders sought and granted were not unlawful and/or irregular.
He deponed that Section 118 A of CPC requires that an applicant seeking orders to investigate should be obtained ex-parte and the proceeds of crime and Anti-money laundering Act (POCAMLA) also allows for the freezing of a bank accounts if there is suspicion that the funds are from unlawful activity or will be used illegally.
he told this court that the orders issued by the court directed that they would remain in force for a period of 7 days as provided by section 118 and 121 of the CPC. 9. Also that the application has not demonstrated how his constitutional rights were violated by the orders issued by a competent court which had the requisite jurisdiction.
10. He said that the applicant was not notified of the application, warrants of investigations and orders sought prior to the issuance of the ex-parte orders as there was likelihood that the applicant could have interfered with or subverted the investigations. 12.He deponed that no orders were served to Equity bank to freeze Equity Bank account no. 0310193620910 as alleged and that Order (2) issued by the court was not directed to the applicant but to the financial institutions listed therein as Cooperative Bank account no. 01116026695100 for purposes of preventing the concealment of illegal funds or proceeds of crime and/or secure evidence for an investigation.
11. He said that though the applicant laimed that this bank accounts no.01116026695100 and 0310193520910 are not related to the criminal proceedings in the matter of criminal case no.E113712025 yet a range of transactions were made between accounts in question where monies were directly deposited by one Naboth Leshan Ngerai,Laximichand virchand Gutka among others under the instructions of the accused Lucy Wangui Mathenge who is an accused person in and in which Naboth Leshan is a witness whereas Laximichand Virchand Gutkaa the complainant against her.
12. The said that the orders sought in the said miscellaneous file were to facilitate completion of investigations in the criminal case no. E113712025 pending before CMs court Kisii.
13. Also that he made efforts to trace applicant for purposes of recording a statement but he was unreachable vide his telephone number no.0729440133 he used in his bank account opening forms for account nos.01116026695100 and 0310193620910. which revealed that applicant Robin Osindi Mosiori was holder of mobile phone no.0729440133. The Applicant annexed to his Supporting Affidavit the ex parte application filed by the 1st Respondent in MCCRMISC/E196/2025. In that application, the Applicant is not blamed anywhere for any wrongdoing. He is also not suspected of committing any offence, nevertheless exparte orders are issued against him.
14. The 2 nd and 3 rd respondents entered appearance and indicated they would comply with the directions of the court.
15. The applicant submitted that the contents of Replying Affidavit dated 17th September 2025 sworn by one Detective Juma Muchenje. It is note worthy that the contents of that affidavit are not supported by any evidence and are thus mere allegations which do not demonstrate any probable cause to investigate him for any offence and freezing his account let alone obtain freezing orders against him as the alleged OB of 18th July 2025 which complaint it admitted in MCCRMISC/E196/2025 was made against one was not annexed .Also that the said Lucy Lucy Wangui Mathenge has been charged alone in MCCR/E1137/2025(R vs Lucy Wangui Mathenge) as per the search from Judiciary Kiosk annexed in the further affidavit and thus the applicant is not a party to the said case. Applicant further submitted that by the time Lucy was being charged. Investigations were already complete .
16. Applicant submitted that in any event the orders had lapsed by the time as per paragraph 9 of the 1st Respondent’s Replying Affidavit as there were only in force for 7 days . That means that the orders lapsed by operation of the law on the 8th August 2025 and unless the same were extended, keeping the Applicant’s Accounts frozen is unlawful and the 1st Respondent must be called out. Further that since the orders of the court have since served their purpose, and d the 1st respondent has not been questioned, arrested, or charged the Applicant with any offence, this courtought to draw an inference that there is no evidence to support any allegation of criminal culpability on the part of the Applicant.
17. It was also submitted that the applicant gave a full disclosure of his business dealings with the said Lucy back in 2021 and the he did not have any reason to inquire into the source of the funds used to pay him for the car sale and therefore he would never know whether the accused had been involved in a crime. That evidence provided by the Applicant together with the bank statements to prove how the said motor vehicle was paid for has not been challenged by the 1st Respondent and therefore it remains an undisputed fact.
18. . The 1st Respondent did not have any probable cause to apply for freezing orders against the Applicant. Where there is no probable cause to search or investigate an individual and prosecution that arises thereafter is malicious prosecution which is actionable and this court has a duty to prevent abuse of court processes.
The applicant relied on the Court of Appeal decision in HCCC No. 2723 of 1998; Consolidated Bank Finance Limited vs Kapurchand Depar Shah. Where the court went into details to pronounce itself on the issue of probable cause. He prayed that the application be allowed in terms of prayer 3 .
I have carefully considered the application together with the supporting affidavit and the further affidavits ,the replying affidavit and the able submissions by counsel for the applicant. The issues for determination are :
Whether the respondent had a probable cause to seek freezing of the accounts of the applicant .
Whether this court should revise the orders dated 1.8.25 issued in Kisii MCCR/E1137 of 2025
On whether the respondent had a probable to seek freezing of the account of the applicant, the 1 st respondent says that the investigating officer was investigating a case of obtaining Kshs. 350,000,000/= and uttering a false document against the applicant and Lucy Wangui the accused in Kisii MCCR/E1137 of 2025 and hence the motion seeking freezing of the accounts was justified as he received proceeds of crime under the Proceeds of Crime and Anti Money laundering Act . Applicant said that the 1 st respondent had no probable cause to investigate his account as he merely sold Lucy a vehicle in the year 2021 at Kshs. 730,000/= and he was paid for it and closed the deal . The applicant annexed his cooperative bank and Equity bank statements for the period (21.12.21 to 23.12.21)to his application (‘’ROM 10 and ROM 11’’) showing transactions but the 1 st respondent has not filed any document to link the said account to the Money obtained at this stage. The application was also scanty as it did not provide for details of the account holders like names and the actual sums received . Section 118 CPC allows for investigation of accounts and an account can be frozen for purposes of investigations under the Proceeds of Crime and Anti Money laundering Act based on evidence of money laundering . The investigator alleges that he never informed the applicant of the intended freezing as he could have interfered with investigations which is in order but he had a duty to lay a basis for freezing of the accounts , to inform the applicant of the reason for the freezing in inter-partes hearing and to ensure that he conducted investigations within the shortest period . Freezing of an account is a drastic action which should be applied with caution as it borders on infringing on the rights of the account owner to access his account. The freezing should also be for the shortest period possible and the owner must be given an opportunity to be heard expeditiously upon obtaining freezing orders ex-parte. Though the respondent alleged in his replying affidavit that the orders were in force for only 7 days as per Section 118 CPC the orders granted to not expressly state the same and the said section does not limit time for the search It is a good practice for the court to issue timelines where orders for freezing have been issued to avoid blanket orders which may be abused. This was not done and the orders remained in force from 1.8.25 to date as per the applicant . In any event since the applicant indicated that he sold a vehicle to the said Lucy and hence and received the sale price from her and this has not been challenged the matter prima facie appears to be civil in nature . The applicant relied on the Court of Appeal decision Consolidated Bank Finance Limited v Shah [2025] KECA 1479 (KLR) where the court held that ‘’Reasonable and probable cause is an honest belief in the guilt of the accused person based on a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming they are true, would reasonably lead an ordinary prudent and cautious person in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. ‘’ From the circumstances of this case, i find that the 1 st respondent had no reasonable and probable cause to seek freezing of the account of the applicant.
On whether this court should revise the orders dated 1.8.25 issued in Kisii MCCR/E1137 of 2025 this court has supervisory powers over the subordinate courts under Article 165 ( 6) and (7 ) of the Constitution as read with Section 362 and 364 (1) (b) of the Criminal Procedure Act . Section 362 CPC gives power to this Court to call for and examine the record of any criminal proceedings before a subordinate court to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order. Under Section 364(1)(b) CPC, this Court may reverse or alter the order of a subordinate court where an illegality, impropriety, or irregularity is established.
In the case of Chesere v Republic [2025] KEHC 1554 (KLR) , it was held that ‘’The purpose and nature of the revisionary jurisdiction of the High Court was examined by Odunga J (as he then was) in the case of Joseph Nduvi Mbuvi v Republic [2019] eKLR as follows:
“ In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate Court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower Court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate Court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate Court as well.
8. The orders granted by the lower court on 1.8.25 are prejudicial and oppressive to the applicant and I proceed to revise them and allow the application dated 27.8.25 in terms of prayer 3. I direct the 2 nd and 3 rd respondents to immediately unfreeze the following accounts of the application ; Equity account no. 0310193620910 and Cooperative Bank account no. 01116026695100.
Delivered Virtually Via Teams Platform on this 23rdday of September 2025in the presence of Mr Otieno for the applicant, Mr Koima for the 1 st respondent and Mis Chepkulul holding brief for Mr Makori for the and Court Assistant Mr Kipchirchir .
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The Applicant being aggrieved by the orders issued in Kisii Chief Magistrate’s Court Misc Application No. E196 of 2025 whereby the 1st Respondent applied for and obtained ex parte orders to freeze the Applicant’s accounts held at the 2nd and 3rd Respondents. The applicant came to this court under Article 165 (6) and 165 (7) of the Constitution. 2. Article 165(6) provides that the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi judicial function. Sub article 7 provides that for purposes of exercising that jurisdiction, this Honourable court may call for the record of any proceedings before any subordinate court or person, body or authority and may make any order or give any direction . The applicant deponed that he engaged with Lucy Wangui Mathenge the accused in Kisii MCCR/E1137/2025 in a car sale transaction where he sold the said Lucy motor vehicle registration number KBT 108 U Toyota Premio and the said Lucy paid the price of Kshs. 730,000/= but he did not inquire into the source of the funds . Also that he was not informed about the said application and orders and that the freezing orders affected his business . Further that he was not invited to record a statement and that there was no wrong doing on his part on the fraud . He said that investigations had taken about one month as at the time of swearing of the affidavit and the investigations were not yet complete and that it is clear that the respondent was on a fishing expedition.
In it’s response to the application, the 1st respondent filed a Replying affidavit Affidavit dated 17th September 2025. The Affidavit is sworn by one Detective Juma Muchenje the investigating officer herein , he said he is making inquiries into alleged offences of obtaining money by false pretenses , making of a document without authority and uttering of a false document contrary to sections 313, 356(a) and 353 of the penal code respectively a case reported at Nyanchwa Police Station under OB. 55 of 18th of July 2025.
He told this court that the complainant in the investigations is one Laxmichard Virchand Gutka while the suspects are Lucy Wangui Mathenge, Robin Osindi Mosiori (the applicant herein) among others.
He said that the alleged offences were committed on diverse dates between 2020 and July, 2025 in Kitutu Central sub-county within Kisii County, whereby the complainant Laxmichand Virchand Gutka was tricked by the suspects into believing that they had won a road construction tenders within the Republic of Kenya and had nominated him to partner in the funding of the projects.
He said that his investigations have established that the accused obtained by false pretense a sum of three hundred and fifty million Kenya shillings i.e. Kshs. 350,000,000/= from from the complainant.
He proceeded to seek orders in Kisii MISC CR. NO E196 2025 and obtained freezing orders under Sections 118, 118a and 121 of CPC, Sections 180 (1) and (2) of the Evidence Act and section 53(A) of the Proceeds of Crime and Anti money laundering Act (POCAMLA) for purposes of investigations and in the interest of justice and hence orders sought and granted were not unlawful and/or irregular.
He deponed that Section 118 A of CPC requires that an applicant seeking orders to investigate should be obtained ex-parte and the proceeds of crime and Anti-money laundering Act (POCAMLA) also allows for the freezing of a bank accounts if there is suspicion that the funds are from unlawful activity or will be used illegally.
he told this court that the orders issued by the court directed that they would remain in force for a period of 7 days as provided by section 118 and 121 of the CPC. 9. Also that the application has not demonstrated how his constitutional rights were violated by the orders issued by a competent court which had the requisite jurisdiction.
10. He said that the applicant was not notified of the application, warrants of investigations and orders sought prior to the issuance of the ex-parte orders as there was likelihood that the applicant could have interfered with or subverted the investigations. 12.He deponed that no orders were served to Equity bank to freeze Equity Bank account no. 0310193620910 as alleged and that Order (2) issued by the court was not directed to the applicant but to the financial institutions listed therein as Cooperative Bank account no. 01116026695100 for purposes of preventing the concealment of illegal funds or proceeds of crime and/or secure evidence for an investigation.
11. He said that though the applicant laimed that this bank accounts no.01116026695100 and 0310193520910 are not related to the criminal proceedings in the matter of criminal case no.E113712025 yet a range of transactions were made between accounts in question where monies were directly deposited by one Naboth Leshan Ngerai,Laximichand virchand Gutka among others under the instructions of the accused Lucy Wangui Mathenge who is an accused person in and in which Naboth Leshan is a witness whereas Laximichand Virchand Gutkaa the complainant against her.
12. The said that the orders sought in the said miscellaneous file were to facilitate completion of investigations in the criminal case no. E113712025 pending before CMs court Kisii.
13. Also that he made efforts to trace applicant for purposes of recording a statement but he was unreachable vide his telephone number no.0729440133 he used in his bank account opening forms for account nos.01116026695100 and 0310193620910. which revealed that applicant Robin Osindi Mosiori was holder of mobile phone no.0729440133. The Applicant annexed to his Supporting Affidavit the ex parte application filed by the 1st Respondent in MCCRMISC/E196/2025. In that application, the Applicant is not blamed anywhere for any wrongdoing. He is also not suspected of committing any offence, nevertheless exparte orders are issued against him.
14. The 2 nd and 3 rd respondents entered appearance and indicated they would comply with the directions of the court.
15. The applicant submitted that the contents of Replying Affidavit dated 17th September 2025 sworn by one Detective Juma Muchenje. It is note worthy that the contents of that affidavit are not supported by any evidence and are thus mere allegations which do not demonstrate any probable cause to investigate him for any offence and freezing his account let alone obtain freezing orders against him as the alleged OB of 18th July 2025 which complaint it admitted in MCCRMISC/E196/2025 was made against one was not annexed .Also that the said Lucy Lucy Wangui Mathenge has been charged alone in MCCR/E1137/2025(R vs Lucy Wangui Mathenge) as per the search from Judiciary Kiosk annexed in the further affidavit and thus the applicant is not a party to the said case. Applicant further submitted that by the time Lucy was being charged. Investigations were already complete .
16. Applicant submitted that in any event the orders had lapsed by the time as per paragraph 9 of the 1st Respondent’s Replying Affidavit as there were only in force for 7 days . That means that the orders lapsed by operation of the law on the 8th August 2025 and unless the same were extended, keeping the Applicant’s Accounts frozen is unlawful and the 1st Respondent must be called out. Further that since the orders of the court have since served their purpose, and d the 1st respondent has not been questioned, arrested, or charged the Applicant with any offence, this courtought to draw an inference that there is no evidence to support any allegation of criminal culpability on the part of the Applicant.
17. It was also submitted that the applicant gave a full disclosure of his business dealings with the said Lucy back in 2021 and the he did not have any reason to inquire into the source of the funds used to pay him for the car sale and therefore he would never know whether the accused had been involved in a crime. That evidence provided by the Applicant together with the bank statements to prove how the said motor vehicle was paid for has not been challenged by the 1st Respondent and therefore it remains an undisputed fact.
18. . The 1st Respondent did not have any probable cause to apply for freezing orders against the Applicant. Where there is no probable cause to search or investigate an individual and prosecution that arises thereafter is malicious prosecution which is actionable and this court has a duty to prevent abuse of court processes.
The applicant relied on the Court of Appeal decision in HCCC No. 2723 of 1998; Consolidated Bank Finance Limited vs Kapurchand Depar Shah. Where the court went into details to pronounce itself on the issue of probable cause. He prayed that the application be allowed in terms of prayer 3 .
I have carefully considered the application together with the supporting affidavit and the further affidavits ,the replying affidavit and the able submissions by counsel for the applicant. The issues for determination are :
Whether the respondent had a probable cause to seek freezing of the accounts of the applicant .
Whether this court should revise the orders dated 1.8.25 issued in Kisii MCCR/E1137 of 2025
On whether the respondent had a probable to seek freezing of the account of the applicant, the 1 st respondent says that the investigating officer was investigating a case of obtaining Kshs. 350,000,000/= and uttering a false document against the applicant and Lucy Wangui the accused in Kisii MCCR/E1137 of 2025 and hence the motion seeking freezing of the accounts was justified as he received proceeds of crime under the Proceeds of Crime and Anti Money laundering Act . Applicant said that the 1 st respondent had no probable cause to investigate his account as he merely sold Lucy a vehicle in the year 2021 at Kshs. 730,000/= and he was paid for it and closed the deal . The applicant annexed his cooperative bank and Equity bank statements for the period (21.12.21 to 23.12.21)to his application (‘’ROM 10 and ROM 11’’) showing transactions but the 1 st respondent has not filed any document to link the said account to the Money obtained at this stage. The application was also scanty as it did not provide for details of the account holders like names and the actual sums received . Section 118 CPC allows for investigation of accounts and an account can be frozen for purposes of investigations under the Proceeds of Crime and Anti Money laundering Act based on evidence of money laundering . The investigator alleges that he never informed the applicant of the intended freezing as he could have interfered with investigations which is in order but he had a duty to lay a basis for freezing of the accounts , to inform the applicant of the reason for the freezing in inter-partes hearing and to ensure that he conducted investigations within the shortest period . Freezing of an account is a drastic action which should be applied with caution as it borders on infringing on the rights of the account owner to access his account. The freezing should also be for the shortest period possible and the owner must be given an opportunity to be heard expeditiously upon obtaining freezing orders ex-parte. Though the respondent alleged in his replying affidavit that the orders were in force for only 7 days as per Section 118 CPC the orders granted to not expressly state the same and the said section does not limit time for the search It is a good practice for the court to issue timelines where orders for freezing have been issued to avoid blanket orders which may be abused. This was not done and the orders remained in force from 1.8.25 to date as per the applicant . In any event since the applicant indicated that he sold a vehicle to the said Lucy and hence and received the sale price from her and this has not been challenged the matter prima facie appears to be civil in nature . The applicant relied on the Court of Appeal decision Consolidated Bank Finance Limited v Shah [2025] KECA 1479 (KLR) where the court held that ‘’Reasonable and probable cause is an honest belief in the guilt of the accused person based on a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming they are true, would reasonably lead an ordinary prudent and cautious person in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. ‘’ From the circumstances of this case, i find that the 1 st respondent had no reasonable and probable cause to seek freezing of the account of the applicant.
On whether this court should revise the orders dated 1.8.25 issued in Kisii MCCR/E1137 of 2025 this court has supervisory powers over the subordinate courts under Article 165 ( 6) and (7 ) of the Constitution as read with Section 362 and 364 (1) (b) of the Criminal Procedure Act . Section 362 CPC gives power to this Court to call for and examine the record of any criminal proceedings before a subordinate court to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order. Under Section 364(1)(b) CPC, this Court may reverse or alter the order of a subordinate court where an illegality, impropriety, or irregularity is established.
In the case of Chesere v Republic [2025] KEHC 1554 (KLR) , it was held that ‘’The purpose and nature of the revisionary jurisdiction of the High Court was examined by Odunga J (as he then was) in the case of Joseph Nduvi Mbuvi v Republic [2019] eKLR as follows:
“ In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate Court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower Court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate Court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate Court as well.
8. The orders granted by the lower court on 1.8.25 are prejudicial and oppressive to the applicant and I proceed to revise them and allow the application dated 27.8.25 in terms of prayer 3. I direct the 2 nd and 3 rd respondents to immediately unfreeze the following accounts of the application ; Equity account no. 0310193620910 and Cooperative Bank account no. 01116026695100.
Delivered Virtually Via Teams Platform on this 23rdday of September 2025in the presence of Mr Otieno for the applicant, Mr Koima for the 1 st respondent and Mis Chepkulul holding brief for Mr Makori for the and Court Assistant Mr Kipchirchir .
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