https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12170

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION** **ACEC MISC. APPL. NO. E022 OF 2026** **ETHICS AND ANTI-CORRUPTION COMMISSION… APPLICANT/RESPONDENT** **VERSUS** **PATRICK ANALO AKIVAGA.............................1ST RESPONDENT/APPLICANT** **DAMARIS SINDAVI KAYUGIRA........................2ND RESPONDENT/APPLICANT** **RULING** 1. The 1st Respondent filed a Notice of Motion dated 19th June 2026, under a Certificate of Urgency, pursuant to Section 56(4) of the Anti-Corruption and Economic Crimes Act, 2003; Articles 22, 23, 40, 47, 50, and 159 of the Constitution; Section 4 of the Fair Administrative Action Act, 2015; and the inherent powers of this court. 2. The 1st Respondent seeks for the following orders: - 3. *Spent* 4. *Spent* 5. *Spent* 6. Pending the hearing and determination of MILIMANI HCACECMISC. E022 of 2026: ETHICS AND ANTI-CORRUPTION COMMISSION VERSUS PATRICK ANALO & ANOTHER, the Honourable Court be pleased to temporarily vary and/or suspend the effect of the Preservation Orders issued on 5th June 2026 to the extent that they restrict access to the 1st Respondent’s/Applicant’s salary account domiciled at Co-operative Bank of Kenya Limited, Account Number 01109163104500, in the name of Patrick Analo Akivaga. 7. Pending the hearing and determination of MILIMANI HCACECMISC. E022 of 2026: ETHICS AND ANTI-CORRUPTION COMMISSION VERSUS PATRICK ANALO & ANOTHER, the Honourable Court be pleased to vary the Preservation Orders issued on 5th June 2026 to permit the 1st Respondent/Applicant to withdraw and utilize funds from Account Number 01109163104500 for the following urgent expenses: 8. Medical treatment and healthcare expenses for the Applicant and his ailing father. – Kshs. 515,000 9. School fees and educational expenses for his children – Kshs. 1,020,000 10. Household upkeep and essential living expenses – Kshs. 490,000 11. Legal expenses – Kshs. 4,000,000 12. This Honourable Court be pleased to vary the Preservation Orders issued on 5th June 2026 to exclude funds subsequently credited into the said account from the 1st Respondent/Applicant’s lawful employment income. 13. Costs of this application be provided for. 14. The application is premised on the Supporting Affidavit of the 1st Respondent/Applicant, Patrick Analo Akivaga, and grounds on the face of the application, alleges that on 4th June 2026, officers of the Ethics and Anti-Corruption Commission (EACC) searched his residence and seized his property without lawful justification or regard for his constitutional rights. He further alleged that the EACC conducted a highly publicised media campaign that unfairly portrayed him as corrupt and caused significant reputational damage. 15. The 1st Respondent/Applicant stated that the EACC initially announced it had recovered Kshs. 250 million from his residence but later revised the amount to Kshs. 65.3 million without explaining the inconsistency. He further stated that the EACC’s public statements created the false impression that he was corrupt, that his possession of Kenyan and foreign currency was unlawful, and that the funds were proceeds of corruption. 16. He deposed that he is a salaried public officer, businessman, and poultry farmer with legitimate sources of income, including his salary, which is paid into a Co-operative Bank account. Following the EACC’s public statements, the bank allegedly froze his salary account, thereby denying him access to his lawful earnings, despite there being no court order authorising the restriction. 17. The 1st Respondent/Applicant stated that the freezing of his salary account has caused severe financial hardship by preventing him from meeting essential obligations, including his own medical treatment, medical expenses for his 74-year-old dependent father, school and educational fees for his four children, household and living expenses, legal fees, salaries for approximately 20 employees across his farming, education, and beauty businesses, and other business operating expenses. 18. He stated that unless the court grants urgent relief, he will continue to suffer irreparable loss due to his inability to access healthcare, support his dependants, meet lawful financial obligations, sustain his businesses, and effectively protect his constitutional rights. **RESPONSE** 1. The Applicant/Respondent in opposition to the application filed a Replying Affidavit, sworn on 7th July 2026 by Catherine Ngari, an Investigator with the Ethics and Anti-Corruption Commission, who stated that the application is misconceived and seeks to defeat lawful preservation orders issued by the court under Section 56 of the Anti-Corruption and Economic Crimes Act (ACECA) pending the completion of investigations. 2. She stated that on 5th June 2026 the court issued preservation orders after finding reasonable suspicion that the funds in the 1st Respondent/Applicant’s accounts were proceeds of corrupt conduct. She deposed that the 1st Respondent/Applicant had failed to satisfy the requirements of Section 56(5) of ACECA, as he had not demonstrated on a balance of probabilities that the preserved funds were lawfully acquired or that the account in question was exclusively a salary account. Preliminary investigations allegedly revealed that the account contained substantial cash deposits suspected to be proceeds of corruption, possibly mixed with legitimate funds that could not yet be separated. 3. EACC maintained that the preservation orders were lawfully obtained pursuant to the EACC’s statutory mandate and that investigations into allegations of conflict of interest, abuse of office, bribery, unexplained assets, and the legitimacy of the funds in the account were ongoing. She further asserted that the searches and seizures complained of were conducted under valid court warrants, and that allegations of constitutional violations, unlawful searches, media publicity, and reputational damage were irrelevant to the issue of varying the preservation orders. 4. EACC further stated that the 1st Respondent/Applicant had not established that the preserved funds were his only source of income, noting that he remained free to open another bank account to receive future salary and legitimate business income. They maintained that allowing access to the preserved funds before investigations were completed would undermine the purpose of the preservation orders. 5. EACC also challenged the 1st Respondent/Applicant’s alleged financial hardship, arguing that he had produced insufficient evidence to support his claims. They stated that he had not demonstrated an inability to access healthcare through the Social Health Authority or through his private medical insurance with Jubilee Insurance; had not shown that he was solely responsible for his father's medical expenses; had produced only general school fee structures rather than fee demands linked to his children; had not substantiated his household expenses; and had failed to justify the claimed legal fees of Kshs. 4 million, which the EACC described as a recently created expense. They also contended that there was no credible evidence that he operated businesses employing approximately 20 workers or that salary obligations existed. 6. EACC concluded that the public interest in preserving assets suspected to be proceeds of corruption outweighed the 1st Respondent/Applicant’s alleged inconvenience. They stated that preservation proceedings are protective rather than determinative of ownership and that the application was an unsupported attempt to access funds under investigation. Accordingly, they prayed for the dismissal of the Notice of Motion application dated 19th June 2026, with costs, and for the preservation orders issued on 5th June 2026 to remain in force until their expiry or until further orders of the court. **ANALYSIS AND DETERMINATION** 1. Having considered the Notice of Motion application dated 19th June 2026, the Replying Affidavit sworn on 7th July 2026, and the submissions, the issues for determination are: 2. **Whether the 1st Respondent/Applicant has satisfied the threshold for variation of the preservation orders issued on 5th June 2026 under Section 56 of the Anti-Corruption and Economic Crimes Act (ACECA)** 3. **What orders on costs should issue** 4. Section 56 of ACECA empowers the court to issue preservation orders where there are reasonable grounds to suspect that property has been acquired through corrupt conduct. The object of such orders is to preserve the property pending investigations and, where appropriate, recovery proceedings. The jurisdiction under Section 56 is protective rather than punitive and is intended to ensure that property reasonably suspected to be proceeds of corruption is not dissipated before investigations are concluded. 5. The Court in **Kenya Anti-Corruption Commission v Stanley Mombo Amuti [2017] KEHC 1050 (KLR), affirmed by the Court of Appeal in Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] KECA 783 (KLR),** recognised that preservation and recovery proceedings under ACECA are civil in nature and are intended to preserve suspected assets pending determination of their legitimacy. The Court emphasised that the public interest in preserving property suspected of having been acquired through corruption is paramount and that such proceedings do not amount to a determination of criminal liability. 6. The 1st Respondent/Applicant invokes Sections 56(4) and (5) of ACECA. Under Section 56(5), a preservation order may only be discharged or varied only if the court is satisfied, on a balance of probabilities, that the property sought to be released was not acquired as a result of corrupt conduct. Consequently, the burden rests on the 1st Respondent/Applicant to demonstrate, by cogent evidence, that the preserved funds are not proceeds of corruption or that sufficient grounds exist to warrant variation of the orders. 7. The 1st Respondent/Applicant contended that Account No. 01109163104500 is a salary account and that the continued preservation has deprived him of access to his lawful earnings, thereby preventing him from meeting medical expenses, school fees, household expenses, legal fees and other obligations. He further argued that the EACC’s public statements and the freezing of the account have infringed his constitutional rights. 8. This court does not accept that position. First, the legality of the search on 4th June 2026, the alleged violation of constitutional rights, and the alleged reputational injury arising from media coverage are not matters for determination in an application to vary preservation orders issued under Section 56 of ACECA. Those complaints, if merited, can be ventilated in appropriate constitutional or other proceedings. They cannot, without more, provide a legal basis for varying preservation orders lawfully issued by the court. 9. Secondly, although the 1st Respondent/Applicant described the account as a salary account, no sufficient evidence has been placed before this court demonstrating that the funds standing to the credit of that account consist exclusively of employment income. On the contrary, the EACC has deponed that preliminary investigations reveal substantial cash deposits, the source of which remains under investigation, and which are reasonably suspected to constitute proceeds of corrupt conduct or funds commingled with legitimate earnings. 10. This court is mindful that, at this stage, it is not called upon to determine whether the funds are indeed proceeds of corruption. That question awaits the completion of investigations and, if necessary, subsequent recovery proceedings. This court’s concern is whether the 1st Respondent/Applicant has discharged the statutory burden under Section 56(5). In this court’s view, he has not. 11. Preservation orders are intended to preserve the status quo pending investigations and should not be discharged merely because hardship has been alleged unless the statutory threshold has been met. In **Aboo v Assets Recovery Agency; Ethics and Anti-Corruption Commission (Interested Party) [2023] KECA 1658 (KLR)**, the court emphasised that: “The effect of a preservation order is that no one may deal in any manner with property forming the subject matter of the order unless authorized by the court, which issued the order.” 1. The 1st Respondent/Applicant also seeks the release of specific sums amounting to over Kshs. 6 million for medical treatment, school fees, household expenses and legal fees. 2. This court has carefully examined the material placed before it. Regarding the alleged medical expenses, although the Applicants assert that the 1st Respondent/Applicant suffers from a medical condition and supports his elderly father, no evidence has been presented to show that the preserved funds are the only available means of meeting those expenses. The Applicant/Respondent has further demonstrated, without rebuttal, that the 1st Respondent/Applicant has medical insurance cover and has not established that such cover is unavailable or inadequate. 3. Regarding school fees, the documents exhibited largely consist of general fee structures rather than invoices, fee statements or demands showing amounts presently due and payable in respect of identified beneficiaries. 4. As regards household expenses, the claims are general in nature and lack documentary evidence demonstrating immediate financial obligations. 5. The claim for legal expenses of Kshs. 4,000,000 is equally unsupported. Apart from a fee note, no material has been placed before the court to demonstrate why payment of such fees should take precedence over the preservation of funds whose legitimacy remains under active investigation. Permitting withdrawal for legal expenses in the circumstances of this case would substantially undermine the purpose of Section 56 of ACECA. 6. The 1st Respondent/Applicant further contends that approximately twenty employees depend on the preserved funds for salary payments. However, no payroll records, employment contracts, statutory returns, bank statements or other business records have been produced to substantiate that assertion. 7. This court therefore finds that the alleged hardship, while deserving of sympathy, has not been supported by sufficient evidence capable of displacing the statutory requirements governing variation of preservation orders. 8. The 1st Respondent/Applicant has equally prayed that future salary deposits into the account be excluded from the preservation orders. 9. The Applicant/Respondent has correctly pointed out that nothing prevents the 1st Respondent/Applicant from opening another bank account into which future salary and other legitimate earnings may be deposited. Such an arrangement adequately addresses the concern about future income without compromising the ongoing investigations into the preserved account. This court sees no legal basis for excluding future credits from being deposited into an account that is itself the subject of ongoing investigations. 10. The court must also bear in mind the public interest underlying preservation proceedings. Preservation orders exist to ensure that assets suspected of constituting proceeds of unlawful conduct are not dissipated before the legality of their acquisition is determined. That objective would be defeated if courts permitted the withdrawal of substantial sums before investigations are completed merely on assertions of hardship unsupported by sufficient evidence. 11. In ***Aboo v Assets Recovery Agency; Ethics and Anti-Corruption Commission (Interested Party)* [2023] KECA 1658 (KLR)**, the Court of Appeal held that: - **“Even if civil forfeiture infringes the right to property, such an infringement would be a proportionate response to the fundamental problem, which it addresses, namely that no one should be allowed to benefit from his or her wrongdoing. A remedy of this kind is justified to induce members of the public to act with vigilance in relation to goods they own or possess to inhibit crime. It thus serves a legitimate public purpose. Such an infringement no doubt satisfies the limitation clause in article 24 of the Constitution. Therefore, because the proceedings are constitutionally** **permissible, any indignity from the forfeiture of the instrumentalities or proceeds of crime or unexplained wealth does not violate the Constitution.”** 1. This court is satisfied that the EACC obtained the preservation orders pursuant to lawful judicial authority after placing before the court material establishing reasonable suspicion that the preserved funds may constitute proceeds of corrupt conduct. The investigations remain active and are incomplete. Releasing the funds at this stage would risk dissipation and substantially prejudice the statutory investigative process. 2. This court finds that the 1st Respondent/Applicant has failed to discharge the burden imposed by Section 56(5) of ACECA or to establish any exceptional circumstances that would warrant variation of the preservation orders. 3. Accordingly, this court makes the following orders: - 4. **The Notice of Motion application dated 19th June 2026 is dismissed.** 5. **The 1st Respondent/Applicant has failed to establish that the preservation orders ought to be varied under Section 56(5) of the Anti-Corruption and Economic Crimes Act.** 6. **The preservation orders issued by this court on 5th June 2026 shall remain in force until they expire or until further orders of the court.** 7. **The costs of the application shall abide the outcome of the substantive proceedings in HCACEC Misc. E022 of 2026.** **Dated, Signed** and **Delivered** **Virtually** this **28th** day of **July 2026.** **R.E. OUGO** **JUDGE** **In the presence of: -** **Mr. S. Kibiti h/b for Mr.Wanyama -For the Applicants/Respondents** **Mr. Mabaka h/b -For the Plaintiff/Respondent** **Adan/ Minah C/A**