[2025] KEHC 4340 (KLR)

Delight Turbo Agency Ltd & another v Republic, Through, OCS Nakuru Police Station & 2 others (Criminal Revision E045 of 2025) [2025] KEHC 4340 (KLR) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 4340 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Revision E045 of 2025

PN Gichohi, J

April 3, 2025

Between

Delight Turbo Agency Ltd

1st Applicant

John Mwangi

2nd Applicant

and

Republic, Through, OCS Nakuru Police Station

1st Respondent

Safaricom (K) Limited

2nd Respondent

KCB Bank Kenya Limited

3rd Respondent

Ruling

1. Through a Notice of Motion dated 20th March, 2025 and brought under a Certificate of Urgency pursuant to sections 354, 358, 362, 364 of the Criminal Procedure Code and Articles 20, 21, 22, 23, 24, 27, 40, 43, 47, 48 and 50 of the Constitution, the Applicants seek the following orders:-1. Spent.2. The Record of proceedings in the Chief Magistrates Court at Nakuru Miscellaneous Criminal Application No. E222 of 2025; Republic Vs Safaricom (K) Limited & Another be called for and examined by this Honourable Court for the purposes of satisfying itself as to the correctness, legality and or propriety of the Orders issued to restrict/ suspend any debit in respect to KCB Bank Account No. 1315151235. 3.The account restriction/ suspension order issued in miscellaneous Criminal Application No. E222 of 2025 Republic Vs Safaricom (K) Limited & Another restricting the 1st Applicant’s bank account No. 1315151235 be lifted or stayed pending the hearing and determination of this Application.4. The account restriction/ suspension order issued in miscellaneous Criminal Application No. E222 of 2025 Republic Vs Safaricom (K) Limited & Another restricting the 1st Applicant’s bank account No. 1315151235 be quashed.5. The costs of the Application be awarded to the Applicant.

2. The grounds thereof are on the face of the application supported by an Affidavit sworn by 2nd Applicant on 20th March, 2025 in his capacity as the Director of the 1st Applicant which he states is a duly registered agency business.

3. He states that the 1st Applicant’s primary business KCB Account No. 1315151235 is with the 3rd Respondent. He depones that he uses the said Bank Account to receive payments from its clients and the funds are used to facilitate the daily operations of the business, primarily funding the processes of clients’ services.

4. His case is that while on his usual cause of business on 19th March, 2025, he visited the 3rd Respondent’s Kimathi Branch with the intention of accessing funds for the daily operations of the 1st Applicant, specifically to facilitate the application processes of clients’ requests.

5. However, he was informed by the 3rd Respondent that their primary business Account was restricted pursuant to an Order issued in Nakuru Chief Magistrates Court on 17/03/2025 and served upon the 3rd Respondent on 18/03/2025.

6. He states that as a consequence, he was unable to access its primary source of business funding which resulted to reduction of its business activities as it cannot meet its daily financial obligations to run the business.

7. He maintains that he is not aware of any criminal complaint lodged against him or the 1st Applicant at Nakuru Police Station and that the police have not only refused to notify him about any criminal complaint against them but also never contacted the Applicants regarding any investigations concerning their business operations.

8. It is his case that all the monies paid to the 1st Applicant by clients are directed to the said bank Account and if the authorities so desire to access the records of the said Account, he is willing to furnish the same upon official notification and request. He states that he is ready and willing to support the authorities in any investigations into its business without being subjected to the actions that sabotage the Applicants’ business. He therefore terms the Order dated 17/03/2025 as improper, illegal and meant to serve a malicious purpose of running down the Applicants’ business operations.

9. In his view, the 1st Respondent’s refusal to issue the Applicants with the said Order dated 17/03/2025 and the accompanying pleadings to enable them adequately defend themselves is a denial of the Applicants’ right to a fair hearing and Fair Administrative Action aimed at driving them out of business . He maintains that the 1st Respondent’s actions defeat the purpose of the said Order of expediting and facilitating unhindered investigations.

10. He depones that no investigations have been carried out despite Respondents obtaining the said Orders and in refusing to proceed with the intended investigations and blocking their business operations, the said actions serve as a final judgment upon them, which has completely paralysed Applicants’ operations leading to the closure of the business.

11. He therefore states that it is in the interest of justice that this Court lifts the restriction placed on the 1st Applicant’s bank Account pursuant to the Order dated 17/03/2025 as failure to lift the said Orders will lead to unlawful and unprocedural condemnation of the 1st Applicant without being heard.

12. He reiterates that the said Order and the resultant actions by the 1st Respondent grant the said party the power and mandate of being the investigator, jury and executioner against them and eventually cause closure of their business.

13. Further, he states that a potential suspect should not be subjected to actions similar to a convicted criminal. On that note, he urges this Court, in the interest of justice and fairness, to grant the Orders sought.

Analysis and determination 14. Orders issued by this Court at certificate stage on 25/3/2025 were that all parties be served with this application. When this matter came for directions before this Court on 27th March, 2025 as scheduled, Mr. Ochieng informed the Court that the file was still with the Police at the Nakuru Police Station and had not been brought to the attention of the Office of the Director of Public Prosecutions (ODPP) and therefore, he had not served the ODPP but one Samuel Chipi, OCS Nakuru Police Station, as 1st Respondent and also served the 2nd and 3rd Respondent and uploaded the Affidavit of Service.

15. That was evidenced by the Affidavit of Service sworn on 26th March, 2025 by Derrick Ochieng Otieno, Advocate on record for the Applicants. However, none of the parties filed a response. In the circumstances, he prayed for interim Orders pending hearing and determination of the application.

16. Confirming non- service as stated by Mr. Ochieng, Ms. Okok , a Prosecution Counsel in ODPP, reiterated that since she had not been served and had not received the file from the Police Station in the circumstances stated, she had nothing to say on this matter.

17. On his part, Mr. Ojong’a Advocate for the 2nd Respondent (Safaricom PLC), noted that since his client had not been mentioned in the current application, he will not be making any response. There was no attendance by 3rd Respondent (KCB bank.)

18. Pursuant to Section 362 of the Criminal Procedure Code, this Court called for the Magistrate Miscellaneous Criminal Application No. E222 of 2025 and has examined the record.

19. The Exparte Notice of Motion which led to the impugned Orders is dated 10th March, 2025 and brought under Section 118 and 121 of the Criminal Procedure Code and Section 180 of the Evidence ActThe Applicant sought Orders that: -1. This Application be deemed fit for admission for hearing on priority basis.2. The manger Safaricom(K) Limited to share certified Mpesa statement from 01/01/2024 to 10/03/2025 in respect to subscriber’s numbers; 0796867275, 0727659912. 3.The manager, KCB bank Limited, to reveal, share details of account opening documents and bank statements from 01/01/2024 to 10/03/2025 of KCB Bank account no. 1315151235. 4.The manager KCB bank Kenya Limited to restrict/suspend any debit in respect to KCB bank account No. 1315151235. 5.It is in the interest of justice and within the discretion of this Honourable Court to consider the orders sought.

20. The basis of that Application was that the 2nd Applicant working through the 1st Applicant (his company) allegedly obtained the sum of Kshs. 471,000/= from one Elizabeth Wangari Mburu on the pretext that he would facilitate her travel to the United States of America. However, the two Applicants herein failed to make good their part of the bargain and that despite demand being made to them, they also refused to refund the money transferred to their Account Number 13151512356 domiciled at KCB Bank Kimathi Street Branch.

21. After considering the application, the trial court issued the following orders:-1. The manager Safaricom (K) Limited to share certified Mpesa statement from 01/01/2024 to 10/03/2025 in respect to subscribers’ numbers; 0796867275 and 0727659912. 2.The manager KCB Bank limited to reveal, share details of the account opening documents and bank statement from 01/01/2024 to 10/03/2025 of KCB bank account No. 1315151235. 3.The manager KCB bank limited to restrict/ suspend any debit in respect to KCB BANK account No. 1315151235.

22. As can been discerned, the Orders above granted to the 1st Respondent of accessing the Applicants’ Account and freezing of Bank Account, were aimed at enabling the 1st Respondent carry out investigations following a complaint raised by Elizabeth Wangari Mburu.

23. Section 180 (1) of the Evidence Act provides for the procedure to facilitate investigation into a bank account and reads as follows:-“Where it is proved on oath to a judge or magistrate that in fact, or according to reasonable suspicion, the inspection of any banker’s book is necessary or desirable for the purpose of any investigation into the commission of an offense, the judge or magistrate may by warrant authorize a police officer or other person named therein to investigate the account of any specified person in any banker’s book, and such warrant shall be sufficient authority for the production of any such banker’s book as may be required for scrutiny by the officer or person named in the warrant, and such officer or person may take copies of any relevant entry or matter in such banker’s book.”

24. In the present case, the 1st Respondent through Corporal Moses Ochieng Police Force No. 87267 led evidence through his application before the trial court detailing the reasons he was seeking the said Orders. Having satisfied itself on the reasons thereof, the trial court allowed hipification and granted the Orders sought.

25. Though the Applicant herein argues that the ex-parte Orders obtained by the respondent in the trial court were in violation of his right to be heard, such applications are ordinarily handled ex-parte in the first instance without participation of the suspected persons. The purpose of such Orders is to safeguard against interference with that which is being investigated.

26. Indeed, the Court of Appeal in the case of Samuel Watatua & Another v Republic, Court of Appeal, Nairobi, Criminal Appeal No. 2 of 2013 (unreported) held that:-“A reading of Section 180 of the Evidence Act together with Sections 118 and 121 of the Criminal Procedure Code leaves no doubt in anybody’s mind that the Court, upon application, has power not only to authorize access by police to bank accounts of suspected criminals but also to freeze those accounts for the purposes of preserving evidence and the subject matter of the alleged crime.”

27. It is thus clear, that the lower Court had jurisdiction to issue the Orders of inspection and freezing of the subject Bank Account. However, such ex-parte orders should be for a short period of time. It was also expected that the trial court would give a mention date for the Applicant thereinto report the results of his investigations and at that stage, the party affected would have an opportunity of being heard on his challenge to the Orders in line with Article 50 of the Constitution. After hearing the parties, the court can give directions as to whether or not the Orders freezing Orders should be maintained.

28. In the present application, the Applicants maintains that the police have not carried out any investigations and the offense (if any) has not been reduced to a charge and the matter has not been escalated to the Director of Public Prosecution.

29. From the lower court record, this Court notes that there was no Order for service of the application on the Respondents. The Applicants only learnt about the Orders, when the 2nd Respondent herein was notified of the same by the 3rd Respondent.

30. Further, though such ex-parte Orders should be for a short period of time, the Orders issued herein do not seem to have timelines within which the police were to carry out the alleged investigations. This ultimately caused the file to be closed with Orders effectively remaining, so to speak, in force indefinitely and at the pleasure of the investigators.

31. Regarding the duration within which such Application can be heard inter-partes, Hedwig I. Ong’udi J, in the case of Hasan Mohamed v Ethics and Anti-Corruption Commission & another [2018] eKLR and while sitting in the Anti-Corruption & Economic Crimes Division in Nairobi issued guidelines on dealing with such applications as follows:“Owing to the many complaints arising from the exparte issuance of search warrants by the Magistrates courts under section 118 and section 121(1) CPC and for proper management of the process, as a Division, we have decided to issue the following guidelines:-(i)Upon issuance of the orders under section 118 & 118 A of the Criminal Procedure Code the Magistrate must state the duration within which the order shall remain in force.(ii)The duration shall not exceed 14 days.(iii)The court shall give a return to court date soon after the 14 days for the following purpose.a.For the Investigator to appraise the court on what he/she has done.b.For the affected party to raise any issues it may have.c.The court could extend the search warrant by a maximum of 7 days if satisfied of the need to do so.(iv)The affected party must be served within 48 hours of the issuance of search warrants.”

32. Though the Guidelines Hasan Mohamed remain as such having not reduced into law, they provide good practice to ensure the ends of justice are met.

33. In this case, if the impugned Orders freezing the Applicants’ Bank Account herein are allowed to remain in status they are in, such Orders are akin to final Orders without giving the Applicant opportunity to be heard inter-partes and that would be highly prejudicial to the Applicants herein and a violation of his constitutional right to fair hearing guaranteed under Article 50 of the Constitution.

34. Indeed, the Court of Appeal in Samuel Watatua & Another v Republic (Supra) held that:-“In certain cases as stated in the Kibiti case (supra) where properties or monies in bank accounts may be dissipated before the matter is heard inter partes, ex parte orders may be granted but only for a short period. Thereafter the application should be served upon all persons likely to be affected by any ensuing orders and no 1nal order should be made until the matter is heard inter partes with all parties, pursuant to Article 50 of the constitution accorded an opportunity to be heard.”

35. In this case therefore, the application should have been heard within 14 days from the time the ex-parte Orders were issued on 14th March, 2025.

36. In conclusion, this Court finds that the Applicants herein have neither made a case for any interim orders as orally sought on directions stage, nor a case for any of the Orders sought in the Application.

37. To ensure the ends of justice are met, this Court gives the following directions: -1. The Application dated 20/3/2025 be and is hereby struck out.2. The Application dated 10th March, 2025 be served upon all parties for an urgent inter- party hearing before the trial court (Hon. A. P. Ndege SPM).3. The lower Court file be and is hereby returned to the trial court on 7th April 2025 for purpose of hearing.4. No order as to costs.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 3RD DAY OF APRIL, 2025. PATRICIA GICHOHIJUDGEIn the presence of:Mr Ochieng for the ApplicantsMr. Kihara for ODPPN/A for 1st RespondentMr. Onjonga for 2nd RespondentN/A for 3rd Respondent