Introduction and Background
1. This ruling determines two applications both filed by the Plaintiff. The first is the one dated 11th March 2026 seeking:
i. An order restraining the Defendant from suspending, freezing, closing, restricting access to or in any manner curtailing the Plaintiff's access to and use of the two accounts pending the hearing and determination of the suit; and
ii. A mandatory injunction compelling the Defendant to credit account number 1179528190 with Kshs.32,715,190.00, being the sum, the Defendant is alleged to have appropriated and converted therefrom.
2. The second is dated 4th May 2026 seeking:
i. An order be and is hereby made that the Defendant's Sahl Branch Manager, Rosemary Nderitu and the Defendant's Relationship Manager, Isak Salim Bakari have disobeyed, and continue to disobey the order made in this matter on 15th March, 2026 as extended by consent on 23rd March, 2026. An order be and is hereby made that the Defendant's Sahl Branch Manager, Rosemary Nderitu and the Defendant's Relationship Manager, Isak Salim Bakari be detained in prison for a term not exceeding six months for their disobedience of the order made in this matter on 15th March, 2026 as extended by consent on 23rd March, 2026.
3. It is common ground that at all material times the parties herein stood in the relationship of banker and customer. It is also not in dispute that vide a letter dated 3rd November 2025 read together with a Tawarruq/Commodity Murabaha Financing Agreement of even date, the Defendant extended to the Plaintiff a credit facility in the sum of Kshs.40,000,000.00 repayable through account number ******8190 by sixty (60) monthly instalments. The said facility was secured, inter alia, by a charge registered on 8th December 2025 in the sum of Kshs.22,000,000.00 over the property known as Land Reference No. 12610/205, and a further charge registered on 7th January 2026 in the sum of Kshs.18,000,000.00 over the property known as Land Reference Number Nairobi/Block149/3445.
4. It is further not in contention that by a notice dated 4th March 2026 issued pursuant to Clause 39 of the Defendant's Business Account Opening Terms and Conditions, the Defendant gave the Plaintiff fourteen (14) days' notice of termination of the banker-customer relationship, thereby recalling the facility in its entirety, and did thereafter proceed to appropriate and set off the sum of Kshs.32,715,190.00 against account number *****8190.
5. The Defendant's justification for its action as deposed to in the Replying Affidavits sworn by Rosemary Nderitu on 5th May 2026 and 20th May 2026 respectively, is that it had reasonable cause to believe that the Plaintiff's accounts were being used for unlawful or suspicious purposes within the meaning of Clause 39 of the Terms and Conditions. Further, that it was obliged to act pursuant to its statutory obligations under the Proceeds of Crime and Anti-Money Laundering Act and the Central Bank of Kenya's Prudential Guideline CBK/PG/08 on Anti-Money Laundering and Combatting the Financing of Terrorism.
6. In this regard, the Defendant relies on a contractual and transactional linkage between the Plaintiff and Rasmi Pay LLC, an entity said to be referenced in ongoing United States Congressional and Department of Justice investigations in Minnesota touching on alleged misappropriation of funds intended for a child-feeding programme. The Defendant further relies on what it terms as a marked escalation in cash withdrawals from the Plaintiff's account, of the sum of Kshs.100,000,000.00 daily. Additionally, the Defendant relies on a publication dated 11th March 2024 by the United States Department of the Treasury's Office of Foreign Assets Control naming one of the Plaintiff's then directors as linked to Al-Shabaab operations, which had previously prompted an earlier withdrawn suit, being HCCC No. 257 of 2024, Taaj Money Transfer Limited & Others v Kenya Commercial Bank Limited & Another.
7. On 15th March 2026, this Court issued interim orders restraining the Defendant from suspending, freezing, closing, restricting access to or in any manner curtailing the Plaintiff's access to and use of the two accounts. The orders were extended on 23rd March 2026, pending the hearing and determation of the Notice of Motion dated 11th March 2026.
8. The Plaintiff contends that the Defendant has persisted in its disobedience of the said Order. Specifically, it is averred that on 11th April 2026, notwithstanding a credit balance of approximately Kshs.32,152,042.00 standing to the credit of account number ****8190, the Defendant rejected two internet banking transfers in the sums of Kshs.5,000,000.00 and Kshs.10,000,000.00 respectively. It is further averred that two cheques, in the sums of Kshs.850,000.00 and Kshs.402,150.00, drawn on the said account were dishonoured, and that the Defendant continued to debit the account with penalties and charges notwithstanding that the same was sufficiently funded.
9. It is the Plaintiff's further contention that the Defendant continued to withhold disbursement of the outstanding balance of Kshs.18,000,000.00 due under the facility. This is despite a demand for compliance, from the Plaintiff's advocates on 20th April 2026, which was acknowledged by the Defendant on 21st April 2026 but, it is alleged, was not heeded. This, according to the Plaintiff, is what prompted the filing of the Notice of Motion dated 4th May 2026 seeking to cite the Defendant for contempt.
10. The Defendant's response, mainly vide the Replying Affidavit of Rosemary Nderitu sworn on 5th May 2026 is that the accounts at all times remained open and operational, that the rejected transfers and dishonoured cheques were occasioned by insufficiency of freely available funds after the Defendant exercising a contractual right of set-off under Clause 9 of the Terms and Conditions and Clause 12 of the Financing Agreement. The Defendant contends that this locked Kshs.32,715,190.00 against the recalled facility leaving a lesser available balance. It maintains that the Order did not compel disbursement of either the recalled sum or the undisbursed balance in the sum of Kshs.18,000,000.00.
Issues for Determination:
11. Both Notices of Motion were canvassed by way of written submissions which I have considered alongside the applications and responses. The issues arising for determination can be summarized as follows:
i. Whether the Plaintiff has established a case for the grant of a prohibitory injunction against the Defendant pending the hearing and determination of the suit;
ii. Whether the Plaintiff has established a case for the grant of a mandatory injunction against the Defendant;
iii. Whether the Plaintiff has established a case for contempt against Rosemary Nderitu and Isak Salim Bakari; and
iv. Who should bear the costs?
Analysis and Determination
i. On the Prohibitory and Mandatory Injunctions:
12. The governing principles on interlocutory injunctions are settled. In Giella V Cassman Brown & Co Ltd [1973] EA 358, the Court laid down three conditions for the grant of such relief: a prima facie case with a probability of success; irreparable harm not adequately compensable in damages; and, where doubt persists, resolution on a balance of convenience. These conditions apply sequentially, such that failure at the first limb is dispositive (See: Export Processing Zones Authority V Kapa Oil Refineries Limited & 6 Others, [2014] eKLR).
13. A prima facie case requires a clear and unmistakable right, directly and materially threatened, together with a fair, bona fide question as to its existence, judged on a preponderance of probabilities that the case is, on its face, more likely than not to succeed at trial (See: Nguruman Limited V Jan Bonde Nielsen & 2 Others, [2014] eKLR). It is more than a merely arguable case; it requires evidence disclosing an infringement of a right and a probability of success at trial (See: also Mrao Ltd V First American Bank of Kenya Ltd & 2 Others, [2003] eKLR).
14. Applying these principles to the present case, the statutory and contractual framework within which the Plaintiff’s prayers fall to be determined is not in dispute. As a matter of contract, Clause 39 of the Defendant's Business Account Opening Terms and Conditions entitles it to terminate or vary the banking relationship with a customer upon issuance of a fourteen (14) days' notice and to summarily close an account where it has reason to believe that the account is being used for unlawful or fraudulent activity. Further, Clauses 9 and 12 of the Terms and Conditions read with the Tawarruq/Commodity Murabaha Financing Agreement, confer upon the Defendant a contractual right of set-off against any indebtedness owed by the customer.
15. I am mindful of the settled jurisprudence to the effect that courts are not called upon to rewrite a bargain freely entered into by parties. In National Bank of Kenya Limited Pipeplastic Samkolit (K) Ltd & Anor, [2001] eKLR, the Court of Appeal held that parties are bound by the terms of their contract, while acknowledging that the court may intervene where coercion, fraud, or undue influence is proved. In the same vein, it has been held that a bank which elects to freeze or close a customer's account on mere suspicion, absent lawful sanction or credible material, does so at its peril.
16. In Governor and Company of the Bank of Scotland V A Ltd & Others, [2001] 3 All ER 58, the English Court of Appeal recognized that, although a bank retains the power to freeze an account, the exercise of that power without justification will almost inevitably expose it to an acutely difficult position and to the risk of proceedings. This Court has applied the same principle on some occasions. In Benson Odongo Okwiri V Consolidated Bank of Kenya Limited, [2008] KEHC, the Court Kimaru, J (as he then was) restrained a bank that had frozen an account on suspicion and without concrete proof of fraud, holding that it had no legal justification for doing so.
17. Similarly, in Viable Deco Solutons Limited V Co-operative Bank of Kenya Limited, (Civil Case 175 of 2014) [2014] KEHC, the Court (Gikonyo, J) held that the restriction of a customer's access to an account must be sanctioned by law and ordinarily by the superadded authority of a Court Order or a statutory framework.
18. In sum, and quite apart from the statutory and contractual framework invoked, the Defendant bears the burden of demonstrating that it had reasonable and justifiable cause to terminate the relationship and restrict the Plaintiff’s accounts. The first limb of evidence relied upon by the Defendant was a contractual relationship between the Plaintiff and a third party that was said to be under foreign investigation for conduct that is, on the face of it, not that of money laundering, but misappropriation of funds and in respect of which no outcome has been furnished to the Court. That does not, in my view, constitute sufficient reason to warrant the action taken by the Defendant.
19. As regards the alleged escalation in cash withdrawals, the letter dated 27th January 2026 from the Plaintiff to the Defendant confirms that the amounts in question were required for branch operations. The letter explains that the Defendant operated 13 branches nationwide with a daily cash requirement of approximately Kshs.100,000,000.00, translating to Kshs.700,000,000.00 weekly. This explanation, when considered against the account statements produced by the Defendant, discloses a history of other bulky withdrawals, deposits, and account balances, such that the withdrawal of Kshs 100,000,000.00 was not the first of its kind. The Defendant's justification is accordingly unconvincing, no evidence having been placed before me to show that it had previously raised any alarm over such transactions or reported the same to the relevant regulators.
20. Equally, the historical OFAC designation of a former director, whose directorship had by the time of the impugned notice already changed, and whose earlier suit had been withdrawn without adjudication on the merits, in my view raises a fair and bona fide question in favour of the Plaintiff within the meaning of Nguruman (supra).
21. The limbs of irreparable harm and balance of convenience favour the Plaintiff. The harm likely to be occasioned to the Plaintiff, a licensed money remittance business, in terms of its regulatory standing and commercial reputation arising from an unresolved suggestion of suspected unlawful activity, is not readily quantifiable in damages. By contrast, maintenance of the status quo, in the sense of accounts remaining open and operative subject to the ordinary availability of funds, occasions no comparable prejudice to the Defendant, whose security interests remain protected by the registered charges and the sums already set off. Accordingly, I find that the Prohibitory Order issued on 15th March 2026, and extended on 23rd March 2026, should be extended pending the hearing and final determination of the suit.
22. On the threshold for a mandatory injunction, the standard is materially more exacting. In Kamau Mucuha V Ripples Ltd, [1993] KECA, the Court of Appeal, (Hancox, Kwach & Cockar JJ.A) held that a mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances but only in clear cases. The principle was reaffirmed in Kenya Breweries Limited & Another V Washington O. Okeyo, [2002] KECA and in Joseph Kaloki T/A Royal Family Assembly V Nancy Atieno Ouma, [2020] KECA, where the Court underscored that mandatory injunctions determine matters with finality and for that reason, are sparingly granted before a full hearing.
23. The mandatory injunction that the Plaintiff seeks is in the form of restitution of Kshs.32,715,190.00, money already appropriated by way of set-off, by the Defendant. In my view, this is an act which if reversed at this interlocutory stage would in substance determine the very question that the suit is designed to try, being whether the Defendant's recall of the facility and consequent set-off was contractually and statutorily valid. That question turns to contested issues of fact concerning the sufficiency of the Defendant's suspicion and on the proper construction of Clauses 9 and 12 of the Financing Agreement. It is not the kind of clear case contemplated in Kamau Mucuha and Kenya Breweries Limited (both supra) as warranting mandatory relief before trial.
24. In any case, the sum claimed is liquidated and readily quantifiable so that should the Plaintiff succeed at trial, an award of the principal sum together with interest would afford it an adequate and complete remedy. No special or exceptional circumstances have otherwise been demonstrated to warrant departure from the ordinarily reluctant approach to interlocutory mandatory relief. Accordingly, this prayer fails.
ii. On the Alleged Contempt:
25. The applicable law in Civil contempt is governed by Section 5 of the Judicature Act, as supplemented by the common law. In Samuel M. N. Mweru & Others V National Land Commission & 2 Others, (Miscellaneous Civil Application 443 of 2017) [2020] eKLR, Mativo J (as he then was) held that an applicant must prove, on a standard higher than a balance of probabilities but short of beyond reasonable doubt, that the order in question was clear and binding, that the respondent had knowledge of it, and that the respondent deliberately breached it. A genuine, even mistaken, belief in one's entitlement to act negates contempt, as does accidental or unintentional non-compliance.
26. Applying that threshold to the present case, the Order issued on 15th March 2026 was expressed in specific and limited terms. It restrained the Defendant from suspending, freezing, closing, restricting access to or in any manner curtailing the Plaintiff's access to and use of the two accounts. It did not direct the Defendant to disburse the recalled sum of Kshs.32,715,190.00 nor the undisbursed balance of Kshs.18,000,000.00 under the facility, that relief having been sought only in prayer 5 of the same Application and remained undetermined as at the date the alleged contemptuous acts occurred.
27. On the Plaintiff's own exhibited bank statements, the accounts remained open and operational throughout, with deposits and withdrawals continuing to be processed. The specific transactions complained of, the two rejected transfers and two dishonored cheques of April 2026, are explained by the Defendant as the consequence of its exercise of a contractual right of set-off, which reduced the freely available balance. Whatever its ultimate merit at trial, this explanation discloses a rational and non-frivolous construction of the scope of the Order, rather than deliberate, contumacious defiance of it.
28. The element of contempt cannot, therefore, be said to have been established to the exacting standard the law requires. The propriety of the set-off itself is a matter for trial, not for these contempt proceedings. Given the discretionary and sparing character of the contempt jurisdiction, I do not consider this a fit case for a finding of contempt or an order of committal to civil jail.
Disposition and Final Orders
29. For the foregoing reasons, the following final Orders do hereby issue:
i. The Notice of Motion dated 11th March 2026 is allowed in part in the following terms:
(a) That, pending the hearing and determination of this suit, an injunction be and is hereby issued restraining the Defendant whether by itself, agents, servants or otherwise howsoever from suspending, freezing, closing, restricting access to or in any other manner curtailing the Plaintiff's access to and use of accounts number 1179528190 KES and 1179528514 USD operated with the Defendant at the Defendant's Kimathi Street Branch, Nairobi;
ii. Given the mixed outcome of the application, each party shall bear their own costs.
iii. The Notice of Motion dated 4th May 2026 is hereby dismissed with costs.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 18TH DAY OF SEPTEMBER 2026.
F. MUGAMBI
JUDGE
Delivered in presence of:
Havi SC & Ashioya for plaintiff
Ms Athman for Munyu for defendant
Court Assistants: Lillian & Gloria
1. This ruling determines two applications both filed by the Plaintiff. The first is the one dated 11th March 2026 seeking:
i. An order restraining the Defendant from suspending, freezing, closing, restricting access to or in any manner curtailing the Plaintiff's access to and use of the two accounts pending the hearing and determination of the suit; and
ii. A mandatory injunction compelling the Defendant to credit account number 1179528190 with Kshs.32,715,190.00, being the sum, the Defendant is alleged to have appropriated and converted therefrom.
2. The second is dated 4th May 2026 seeking:
i. An order be and is hereby made that the Defendant's Sahl Branch Manager, Rosemary Nderitu and the Defendant's Relationship Manager, Isak Salim Bakari have disobeyed, and continue to disobey the order made in this matter on 15th March, 2026 as extended by consent on 23rd March, 2026. An order be and is hereby made that the Defendant's Sahl Branch Manager, Rosemary Nderitu and the Defendant's Relationship Manager, Isak Salim Bakari be detained in prison for a term not exceeding six months for their disobedience of the order made in this matter on 15th March, 2026 as extended by consent on 23rd March, 2026.
3. It is common ground that at all material times the parties herein stood in the relationship of banker and customer. It is also not in dispute that vide a letter dated 3rd November 2025 read together with a Tawarruq/Commodity Murabaha Financing Agreement of even date, the Defendant extended to the Plaintiff a credit facility in the sum of Kshs.40,000,000.00 repayable through account number ******8190 by sixty (60) monthly instalments. The said facility was secured, inter alia, by a charge registered on 8th December 2025 in the sum of Kshs.22,000,000.00 over the property known as Land Reference No. 12610/205, and a further charge registered on 7th January 2026 in the sum of Kshs.18,000,000.00 over the property known as Land Reference Number Nairobi/Block149/3445.
4. It is further not in contention that by a notice dated 4th March 2026 issued pursuant to Clause 39 of the Defendant's Business Account Opening Terms and Conditions, the Defendant gave the Plaintiff fourteen (14) days' notice of termination of the banker-customer relationship, thereby recalling the facility in its entirety, and did thereafter proceed to appropriate and set off the sum of Kshs.32,715,190.00 against account number *****8190.
5. The Defendant's justification for its action as deposed to in the Replying Affidavits sworn by Rosemary Nderitu on 5th May 2026 and 20th May 2026 respectively, is that it had reasonable cause to believe that the Plaintiff's accounts were being used for unlawful or suspicious purposes within the meaning of Clause 39 of the Terms and Conditions. Further, that it was obliged to act pursuant to its statutory obligations under the Proceeds of Crime and Anti-Money Laundering Act and the Central Bank of Kenya's Prudential Guideline CBK/PG/08 on Anti-Money Laundering and Combatting the Financing of Terrorism.
6. In this regard, the Defendant relies on a contractual and transactional linkage between the Plaintiff and Rasmi Pay LLC, an entity said to be referenced in ongoing United States Congressional and Department of Justice investigations in Minnesota touching on alleged misappropriation of funds intended for a child-feeding programme. The Defendant further relies on what it terms as a marked escalation in cash withdrawals from the Plaintiff's account, of the sum of Kshs.100,000,000.00 daily. Additionally, the Defendant relies on a publication dated 11th March 2024 by the United States Department of the Treasury's Office of Foreign Assets Control naming one of the Plaintiff's then directors as linked to Al-Shabaab operations, which had previously prompted an earlier withdrawn suit, being HCCC No. 257 of 2024, Taaj Money Transfer Limited & Others v Kenya Commercial Bank Limited & Another.
7. On 15th March 2026, this Court issued interim orders restraining the Defendant from suspending, freezing, closing, restricting access to or in any manner curtailing the Plaintiff's access to and use of the two accounts. The orders were extended on 23rd March 2026, pending the hearing and determation of the Notice of Motion dated 11th March 2026.
8. The Plaintiff contends that the Defendant has persisted in its disobedience of the said Order. Specifically, it is averred that on 11th April 2026, notwithstanding a credit balance of approximately Kshs.32,152,042.00 standing to the credit of account number ****8190, the Defendant rejected two internet banking transfers in the sums of Kshs.5,000,000.00 and Kshs.10,000,000.00 respectively. It is further averred that two cheques, in the sums of Kshs.850,000.00 and Kshs.402,150.00, drawn on the said account were dishonoured, and that the Defendant continued to debit the account with penalties and charges notwithstanding that the same was sufficiently funded.
9. It is the Plaintiff's further contention that the Defendant continued to withhold disbursement of the outstanding balance of Kshs.18,000,000.00 due under the facility. This is despite a demand for compliance, from the Plaintiff's advocates on 20th April 2026, which was acknowledged by the Defendant on 21st April 2026 but, it is alleged, was not heeded. This, according to the Plaintiff, is what prompted the filing of the Notice of Motion dated 4th May 2026 seeking to cite the Defendant for contempt.
10. The Defendant's response, mainly vide the Replying Affidavit of Rosemary Nderitu sworn on 5th May 2026 is that the accounts at all times remained open and operational, that the rejected transfers and dishonoured cheques were occasioned by insufficiency of freely available funds after the Defendant exercising a contractual right of set-off under Clause 9 of the Terms and Conditions and Clause 12 of the Financing Agreement. The Defendant contends that this locked Kshs.32,715,190.00 against the recalled facility leaving a lesser available balance. It maintains that the Order did not compel disbursement of either the recalled sum or the undisbursed balance in the sum of Kshs.18,000,000.00.
Issues for Determination:
11. Both Notices of Motion were canvassed by way of written submissions which I have considered alongside the applications and responses. The issues arising for determination can be summarized as follows:
i. Whether the Plaintiff has established a case for the grant of a prohibitory injunction against the Defendant pending the hearing and determination of the suit;
ii. Whether the Plaintiff has established a case for the grant of a mandatory injunction against the Defendant;
iii. Whether the Plaintiff has established a case for contempt against Rosemary Nderitu and Isak Salim Bakari; and
iv. Who should bear the costs?
Analysis and Determination
i. On the Prohibitory and Mandatory Injunctions:
12. The governing principles on interlocutory injunctions are settled. In Giella V Cassman Brown & Co Ltd [1973] EA 358, the Court laid down three conditions for the grant of such relief: a prima facie case with a probability of success; irreparable harm not adequately compensable in damages; and, where doubt persists, resolution on a balance of convenience. These conditions apply sequentially, such that failure at the first limb is dispositive (See: Export Processing Zones Authority V Kapa Oil Refineries Limited & 6 Others, [2014] eKLR).
13. A prima facie case requires a clear and unmistakable right, directly and materially threatened, together with a fair, bona fide question as to its existence, judged on a preponderance of probabilities that the case is, on its face, more likely than not to succeed at trial (See: Nguruman Limited V Jan Bonde Nielsen & 2 Others, [2014] eKLR). It is more than a merely arguable case; it requires evidence disclosing an infringement of a right and a probability of success at trial (See: also Mrao Ltd V First American Bank of Kenya Ltd & 2 Others, [2003] eKLR).
14. Applying these principles to the present case, the statutory and contractual framework within which the Plaintiff’s prayers fall to be determined is not in dispute. As a matter of contract, Clause 39 of the Defendant's Business Account Opening Terms and Conditions entitles it to terminate or vary the banking relationship with a customer upon issuance of a fourteen (14) days' notice and to summarily close an account where it has reason to believe that the account is being used for unlawful or fraudulent activity. Further, Clauses 9 and 12 of the Terms and Conditions read with the Tawarruq/Commodity Murabaha Financing Agreement, confer upon the Defendant a contractual right of set-off against any indebtedness owed by the customer.
15. I am mindful of the settled jurisprudence to the effect that courts are not called upon to rewrite a bargain freely entered into by parties. In National Bank of Kenya Limited Pipeplastic Samkolit (K) Ltd & Anor, [2001] eKLR, the Court of Appeal held that parties are bound by the terms of their contract, while acknowledging that the court may intervene where coercion, fraud, or undue influence is proved. In the same vein, it has been held that a bank which elects to freeze or close a customer's account on mere suspicion, absent lawful sanction or credible material, does so at its peril.
16. In Governor and Company of the Bank of Scotland V A Ltd & Others, [2001] 3 All ER 58, the English Court of Appeal recognized that, although a bank retains the power to freeze an account, the exercise of that power without justification will almost inevitably expose it to an acutely difficult position and to the risk of proceedings. This Court has applied the same principle on some occasions. In Benson Odongo Okwiri V Consolidated Bank of Kenya Limited, [2008] KEHC, the Court Kimaru, J (as he then was) restrained a bank that had frozen an account on suspicion and without concrete proof of fraud, holding that it had no legal justification for doing so.
17. Similarly, in Viable Deco Solutons Limited V Co-operative Bank of Kenya Limited, (Civil Case 175 of 2014) [2014] KEHC, the Court (Gikonyo, J) held that the restriction of a customer's access to an account must be sanctioned by law and ordinarily by the superadded authority of a Court Order or a statutory framework.
18. In sum, and quite apart from the statutory and contractual framework invoked, the Defendant bears the burden of demonstrating that it had reasonable and justifiable cause to terminate the relationship and restrict the Plaintiff’s accounts. The first limb of evidence relied upon by the Defendant was a contractual relationship between the Plaintiff and a third party that was said to be under foreign investigation for conduct that is, on the face of it, not that of money laundering, but misappropriation of funds and in respect of which no outcome has been furnished to the Court. That does not, in my view, constitute sufficient reason to warrant the action taken by the Defendant.
19. As regards the alleged escalation in cash withdrawals, the letter dated 27th January 2026 from the Plaintiff to the Defendant confirms that the amounts in question were required for branch operations. The letter explains that the Defendant operated 13 branches nationwide with a daily cash requirement of approximately Kshs.100,000,000.00, translating to Kshs.700,000,000.00 weekly. This explanation, when considered against the account statements produced by the Defendant, discloses a history of other bulky withdrawals, deposits, and account balances, such that the withdrawal of Kshs 100,000,000.00 was not the first of its kind. The Defendant's justification is accordingly unconvincing, no evidence having been placed before me to show that it had previously raised any alarm over such transactions or reported the same to the relevant regulators.
20. Equally, the historical OFAC designation of a former director, whose directorship had by the time of the impugned notice already changed, and whose earlier suit had been withdrawn without adjudication on the merits, in my view raises a fair and bona fide question in favour of the Plaintiff within the meaning of Nguruman (supra).
21. The limbs of irreparable harm and balance of convenience favour the Plaintiff. The harm likely to be occasioned to the Plaintiff, a licensed money remittance business, in terms of its regulatory standing and commercial reputation arising from an unresolved suggestion of suspected unlawful activity, is not readily quantifiable in damages. By contrast, maintenance of the status quo, in the sense of accounts remaining open and operative subject to the ordinary availability of funds, occasions no comparable prejudice to the Defendant, whose security interests remain protected by the registered charges and the sums already set off. Accordingly, I find that the Prohibitory Order issued on 15th March 2026, and extended on 23rd March 2026, should be extended pending the hearing and final determination of the suit.
22. On the threshold for a mandatory injunction, the standard is materially more exacting. In Kamau Mucuha V Ripples Ltd, [1993] KECA, the Court of Appeal, (Hancox, Kwach & Cockar JJ.A) held that a mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances but only in clear cases. The principle was reaffirmed in Kenya Breweries Limited & Another V Washington O. Okeyo, [2002] KECA and in Joseph Kaloki T/A Royal Family Assembly V Nancy Atieno Ouma, [2020] KECA, where the Court underscored that mandatory injunctions determine matters with finality and for that reason, are sparingly granted before a full hearing.
23. The mandatory injunction that the Plaintiff seeks is in the form of restitution of Kshs.32,715,190.00, money already appropriated by way of set-off, by the Defendant. In my view, this is an act which if reversed at this interlocutory stage would in substance determine the very question that the suit is designed to try, being whether the Defendant's recall of the facility and consequent set-off was contractually and statutorily valid. That question turns to contested issues of fact concerning the sufficiency of the Defendant's suspicion and on the proper construction of Clauses 9 and 12 of the Financing Agreement. It is not the kind of clear case contemplated in Kamau Mucuha and Kenya Breweries Limited (both supra) as warranting mandatory relief before trial.
24. In any case, the sum claimed is liquidated and readily quantifiable so that should the Plaintiff succeed at trial, an award of the principal sum together with interest would afford it an adequate and complete remedy. No special or exceptional circumstances have otherwise been demonstrated to warrant departure from the ordinarily reluctant approach to interlocutory mandatory relief. Accordingly, this prayer fails.
ii. On the Alleged Contempt:
25. The applicable law in Civil contempt is governed by Section 5 of the Judicature Act, as supplemented by the common law. In Samuel M. N. Mweru & Others V National Land Commission & 2 Others, (Miscellaneous Civil Application 443 of 2017) [2020] eKLR, Mativo J (as he then was) held that an applicant must prove, on a standard higher than a balance of probabilities but short of beyond reasonable doubt, that the order in question was clear and binding, that the respondent had knowledge of it, and that the respondent deliberately breached it. A genuine, even mistaken, belief in one's entitlement to act negates contempt, as does accidental or unintentional non-compliance.
26. Applying that threshold to the present case, the Order issued on 15th March 2026 was expressed in specific and limited terms. It restrained the Defendant from suspending, freezing, closing, restricting access to or in any manner curtailing the Plaintiff's access to and use of the two accounts. It did not direct the Defendant to disburse the recalled sum of Kshs.32,715,190.00 nor the undisbursed balance of Kshs.18,000,000.00 under the facility, that relief having been sought only in prayer 5 of the same Application and remained undetermined as at the date the alleged contemptuous acts occurred.
27. On the Plaintiff's own exhibited bank statements, the accounts remained open and operational throughout, with deposits and withdrawals continuing to be processed. The specific transactions complained of, the two rejected transfers and two dishonored cheques of April 2026, are explained by the Defendant as the consequence of its exercise of a contractual right of set-off, which reduced the freely available balance. Whatever its ultimate merit at trial, this explanation discloses a rational and non-frivolous construction of the scope of the Order, rather than deliberate, contumacious defiance of it.
28. The element of contempt cannot, therefore, be said to have been established to the exacting standard the law requires. The propriety of the set-off itself is a matter for trial, not for these contempt proceedings. Given the discretionary and sparing character of the contempt jurisdiction, I do not consider this a fit case for a finding of contempt or an order of committal to civil jail.
Disposition and Final Orders
29. For the foregoing reasons, the following final Orders do hereby issue:
i. The Notice of Motion dated 11th March 2026 is allowed in part in the following terms:
(a) That, pending the hearing and determination of this suit, an injunction be and is hereby issued restraining the Defendant whether by itself, agents, servants or otherwise howsoever from suspending, freezing, closing, restricting access to or in any other manner curtailing the Plaintiff's access to and use of accounts number 1179528190 KES and 1179528514 USD operated with the Defendant at the Defendant's Kimathi Street Branch, Nairobi;
ii. Given the mixed outcome of the application, each party shall bear their own costs.
iii. The Notice of Motion dated 4th May 2026 is hereby dismissed with costs.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 18TH DAY OF SEPTEMBER 2026.
F. MUGAMBI
JUDGE
Delivered in presence of:
Havi SC & Ashioya for plaintiff
Ms Athman for Munyu for defendant
Court Assistants: Lillian & Gloria