[2021] KEHC 9745 (KLR)
The court found that the Applicant/Respondent's failure to file a response within the stipulated time was excusable due to the proximity of the order to the Christmas and New Year holidays, which made it difficult to obtain necessary information. To ensure a fair hearing and that all relevant material is available...
Source-derived case information.
- Citation
- [2021] KEHC 9745 (KLR)
- Parties
- Applicant: Assets Recovery Agency; Respondent: Kimaco Connections Limited; Respondent: Pescom Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Anti-Corruption and Economic Crimes Case E034 of 2020
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Adjournment and Access to Frozen Accounts
- Outcome
- Adjournment granted; access to frozen funds denied at this stage.
- Legal Topics
- Preservatory Orders, Adjournment, Proceeds of Crime, Access to Frozen Accounts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Assets Recovery Agency
Applicant
Kimaco Connections Limited
Respondent
Pescom Kenya
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Adjournment and Access to Frozen Accounts
Legal Issues
- 1 Whether the Applicant/Respondent should be granted additional time to file a replying affidavit.
- 2 Whether the Respondents/Applicants should be granted access to funds in the frozen accounts pending determination of the application.
Ratio Decidendi
The court found that the Applicant/Respondent's failure to file a response within the stipulated time was excusable due to the proximity of the order to the Christmas and New Year holidays, which made it difficult to obtain necessary information. To ensure a fair hearing and that all relevant material is available for determination, the court granted a short adjournment of five days for the Applicant/Respondent to file and serve its response. The court declined to grant the Respondents/Applicants access to funds in the frozen accounts at this interlocutory stage, holding that such access could only be considered after a full inter-partes hearing to determine whether the funds are proceeds...
Court Disposition
Adjournment granted; access to frozen funds denied at this stage.
Orders
- The Applicant/Respondent is granted five (5) days to file and serve its response to the application.
- Prayer 3 and 5 of the Respondents/Applicants' Notice of Motion are declined at this stage.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION
ACEC MISC. APPLICATION NO. E034 OF 2020
ASSETS RECOVERY AGENCY........................................................APPLICANT/RESPONDENT
VERSUS
KIMACO CONNECTIONS LIMITED...................................1ST RESPONDENT/APPLICANTS
PESCOM KENYA................................................................................................2ND RESPONDENT
RULING
1. This court was moved by the Applicant/Respondent on 4th December, 2020 vide an exparte originating summons of even date. Preservatory orders were issued against the cash in three accounts operated by the Respondents/Applicants.
2. The Respondents/Applicants filed a chamber summons dated 21st December 2020 seeking leave to be heard during the vacation and the same was granted on 23rd December 2020. Directions were given for the Applicant/Respondent to file its response within 10 days which has not been done, though the matter is for hearing today.
3. Mr. Githinji for the Applicant/Respondent has requested for time to file his response after verifying a few facts. The same has been opposed by Mr. Lutta for the Respondents/Applicants. Mr. Lutta has given several reasons and the key one is that the Respondents/Applicants have been unable to meet their several obligations due to the frozen accounts.
4. Mr. Lutta has submitted that Respondents/Applicants will only concede to the application for an adjournment if prayers No. 3 and 5 of their Notice of Motion are granted. Prayer No. 3 specifically requests for access to a sum not exceeding Kshs 64,262,499/60 from the three (3) accounts. This has been opposed by the Applicant/Respondent.
5. I have considered the submissions by both counsel on the issue of the adjournment and grant of access to the money in the three (3) bank accounts.
6. At this point in time this court is not in a position to make any conclusions on whether all the amount close to Kshs 304 million or part of it is proceeds of crime. This can only be determined after an inter-partes hearing of the present application.
7. The order for the Applicant/Respondent to file a replying affidavit was issued on 23rd December 2020 which was close to the Christmas and New year seasons when most of the enterprises have closed. It is therefore not surprising that the Applicant/Respondent was not able to obtain the information it required before filing its response to the application.
8. Counsel had requested for 7 days but later reduced it to 5 days for filing a replying affidavit. For purposes of having all the necessary material placed before the court to enable it arrive at a sound determination I find it prudent to allow the adjournment.
9. Prayer 3 and 5 cannot be allowed at this moment before a proper determination on the actual status of the amount in the 3 accounts, is made.
10. I therefore allow the adjournment and grant the Applicant/Respondent five (5) days within which to file and serve its response to the application.
11. The Notice of Motion dated 21st December 2020 to be heard on 12th January, 2021 at 10 am by the Duty Judge.
Delivered, signed and dated at Nairobi this 6th day of January, 2021.
H. I. ONG’UDI
JUDGE