https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12023

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **ANTI CORRUPRION AND ECONOMIC CRIMES DIVISION** **ACEC SUIT NO. E049 OF 2025** **ETHICS AND ANTI-CORRUPTION COMMISSION….PLAINTIFF/APPLICANT** **VERSUS** **BENSON GETHI WANGU T/A AS HIGHVIEW TRADING, SCHOOLWORK ENTERPRISES NEWTOOL MART TRADING, RATEGO TECHNOLOGIES, REALTOOL TRADING AND** **COMPTOOL TRADING…………………..….1ST DEFENDANT/RESPONDENT** **HORIZON LIMITED………..…..…………….2ND DEFENDANT/RESPONDENT** **ELIZABETH WANGECI NGUGI** **T/A LIZ LINK GENERAL SUPPLIERS…….…3RD DEFENDANT/RESPONDENT** **SUSAN NYAMBURA T/A LINK GENERAL..4TH DEFENDANT/RESPONDENT** **JIMCHAR ENTERPRISE LIMITED………..5TH DEFENDANT/RESPONDENT** **TISON LIMITED…………………………….…6TH DEFENDANT/RESPONDENT** **SAMWEL MUDANYI WACHENJE.……….…7TH DEFENDANT/RESPONDENT** **BERNARD KIPKOECH YATICH.………….…8TH DEFENDANT/RESPONDENT** **BERNARD NZIOKA KIOKO.………….….…9TH DEFENDANT/RESPONDENT** **JULIUS NYADIMO AIRO.……………………10TH DEFENDANT/RESPONDENT** **JOHN NGANGA GICHARU.…………………11TH DEFENDANT/RESPONDENT** **TITUS TROUBLE LIBONDO.………………12TH DEFENDANT/RESPONDENT** **ISAAC WAFULA KUNDU..…………….……13TH DEFENDANT/RESPONDENT** **JANE WANGECHI GICHUKI.………………14TH DEFENDANT/RESPONDENT** **CHEMOSS KORORIA NDIEMA.……………15TH DEFENDANT/RESPONDENT** **AND** **NATIONAL YOUTH SERVICE………………………………INTERESTED PARTY** **RULING** 1. Before this Court are three Applications: the Plaintiff’s Application dated 5th December, 2025; the 1st Defendant/Respondent’s Application dated 15th December, 2025; and the 5th and 6th Defendants/Respondents' Application dated 15th December, 2025. 2. The Applications by the 1st Defendant/Respondent and the 5th and 6th Defendants/Respondents seek to set aside the ex parte injunctive orders issued by this Court on the 8th December 2025. For good order, I will begin with the said Applications. 3. The 1st Defendant/Respondent vide a Notice of Motion Application dated 15th December, 2025 sought the following orders; 1. Spent. 2. Spent. 3. THAT this Honorable Court be pleased to set aside and vacate the ex parte orders of this Honorable Court dated 8th December 2025, inter alia, that pending the hearing of the application inter partes, the interested party is hereby restrained from effecting payment of the sum of Ksh.6,167,797, 655 to the 1st - 6th defendants in respect of the payment of Vouchers with annexures serialised as Serial Nos. 000001-002901. 4. THAT the Plaintiff herein be ordered to release vouchers serialised as Serial Nos. 00001-002901, admitted to be in their possession, to the relevant parties, as applicable. 5. THAT the costs of this Application be costs be provided for. 4. The 5th and 6th Defendants/Respondents filed the Notice of Motion Application dated 15th December, 2026 seeking the following; * 1. Spent 2. Spent. 3. THAT pending the inter-partes hearing and determination of this suit, this Honourable Court be pleased to set aside, discharge and/or vacate in entirety the ex parte orders issued on 8th December 2025. 4. THAT the Notice of Motion dated 5th December 2025 be dismissed with costs for material non-disclosure, for being an abuse of court process and for lack of merit. 5. Spent. 6. THAT the Court do issue such further or other orders as it may deem fit in the interests of justice. 7. THAT costs of this Application be provided for. 5. The 1st Defendant/Respondent’s Application was supported by the affidavit of Benson Wangui, sworn on the same date, and was premised on various grounds. 6. It was averred that on 8th December, 2025, the Court issued draconian ex parte orders that restrained the 1st to 6th Respondents from claiming payment of Kshs 6,167,797,655/= and further restrained the Interested party from making any payments for the claimed amounts to the 1st to 6th Respondents. 7. It is his averment that the Plaintiff/Applicant failed to disclose that the 1st Respondent had submitted a list of 21 LPOs but could not provide complete documents to the Pending Bills Verification Committee (PBVC) following calls from members of the public with pending bills from July 2005 to June 2022, because the documents were in the possession of the Plaintiff/Applicant for six years of investigations and for two more years after they were advised to close the inquiry file by the ODPP. That, by withholding the said documents and seeking ex parte orders herein, their right under Article 47(1) of the Constitution was violated. 8. It was his contention that the Application by the Plaintiff/Applicant seeks to preserve money that does not exist and that there is no proof of any imminent danger. It was further contended that the Application by the Plaintiff/Applicant is a gross abuse of court process, treating allegations as facts, yet no trial has been conducted nor have charges been preferred, and that the ODPP directed the closure of the investigation file. 9. The 1st Defendant/Respondent averred that the Plaintiff’s Application is highly speculative and fails to plead that any money left NYS or Treasury, which is fatal to their case, as the Anti-Corruption and Economic Crimes Act (ACECA) freezing powers relate to existing property or proceeds of corruption. Yet in this case, no money has moved, so there is nothing to preserve. 10. It was his averment that the 1st Defendant/Respondent learnt that the PBVC mandate had been extended to 31st December 2025, and that the continued withholding of the said documents by the Plaintiff/Applicant was detrimental to them. He further averred that the Orders were obtained through material non-disclosure. He also highlighted that the Plaintiff/Applicant initiated investigations, resulting in the 1st Defendant/Respondent submitting all original documents to aid the investigation, and that the Interested party forwarded original vouchers to DCI for investigation, which were returned upon the conclusion of the investigation, and that it was found that no fraud was apparent. 11. It was further averred that the Plaintiff/Applicant forwarded the inquiry file to the ODPP, recommending the institution of criminal charges against the Defendants/Respondents. This elicited a reply by letter dated 5th June 2024, in which the ODPP declined to prefer charges against the Defendants/Respondents, stating that there was no evidence to support the recommended charges, and urged the Plaintiff/Applicant to close the file. The Plaintiff/Applicant thereafter sought a review of the ODPP’s directions by letter dated 25th November 2024, which was again replied to on 7th May, 2025, indicating that there was no evidence to warrant a review of the earlier direction. It was therefore contended that the Plaintiff/Applicant became functus officio and cannot, in law, revive the same through a civil injunction. 12. It was also averred that the Plaintiff/Applicant failed to disclose their participation in the Pending Bills Multi - Agency Team (PB-MAT), which prepared a report annexed to their Application, but failed to disclose the findings of that report. He pointed out that, on page 258 of the said report, the 1st Defendant/Respondent was not included in the list of payments flagged and not approved. 13. Furthermore, the PB-MAT, comprising representatives from the Auditor General, the Attorney General, the Public Procurement Directorate, the Directorate of Criminal Investigations, and the EACC, verified the subject claims and unanimously recommended payments, except for vouchers worth Kshs 812 million, not the 6,167,797,655/=. No objection whatsoever was raised by the Plaintiff/Applicant. 14. It was also deposed that EACC was invited to authenticate documents rather than freeze them, and that this suit contradicted the mandate under which they received the vouchers. It was further averred that the PB MAT was the lawful verification mechanism, thereby rendering EACC’s injunction ultra vires. It was averred that the AG confirmed that although certain NYS Documents did not strictly comply with the Public Finance Management Act and the Public Procurement and Asset Disposal Act due to internal administrative weaknesses, this did not amount to supplier fraud and could lawfully be waived for the purpose of settling verified claims and further advising payments. 15. The 1st Defendant/Respondent contended that the Defendants/Respondents are further prejudiced by the continued existence of the Orders and that EACC could only interfere with property or documents during an active investigation, yet in this case the investigations were concluded and closed. Further, the Orders granted and sought were pre-emptive, speculative and presumptuous, as the Plaintiff/Applicant’s actions defeat their participation in the verification exercise. 16. It was also averred that no payments were made by the Interested Party, and therefore the Plaintiff/Applicant’s averment that the 1st Defendant/Respondent fraudulently received public funds is factually incorrect. Accordingly, there is no basis in law for civil recovery or injunctive relief. The Court was urged to grant the prayers sought in the 1st Defendant/Respondent’s Application. 17. The Application of the 5th and 6th Defendants/Respondents was supported by the affidavit of Michael Tyson Otieno, sworn on the same date. The grounds set out therein were largely similar to those of the 1st Defendant/Respondent, namely material non-disclosure in relation to the ODPP's directions on closure of the file, the PBVC's time-bound verification, and the failure to meet the threshold for the grant of conservatory/injunctive orders. **PLAINTIFF/APPLICANT’S RESPONSE** 1. The Plaintiff/Applicant filed two Replying Affidavits, sworn on 30th January, 2026, in response to two Applications with similar content. The Plaintiff/Applicant reiterated the contents of their Supporting Affidavit in their Application dated 5th December, 2025, stating that they received a request from the CS Ministry of Public Affairs, Gender, Senior Citizens and Special Programs to conduct forensic investigations into the authenticity of the forwarded vouchers. They conducted these investigations and provided a report to the ODPP. 2. In response to the allegation that the interim orders were obtained through material non-disclosure, it was averred that the suit herein seeks to protect public property, has no bearing on the ODPP, is not within its purview, and that the threshold of proof in a criminal case differs from that in a civil case. 3. In response to the issue of the Plaintiff/Applicant’s participation in the 2nd inter-agency team, it was averred that their participation was not for the purpose of investigation under Section 11 of the EACC Act, but was limited to the terms of reference, which were to verify historical pending bills based on criteria, including evidence that the goods and services supplied were ordered by the Officer in Charge and evidence that the goods and services were received and entered in the records of NYS. Thus, the verification in this instance was materially different from a forensic investigation. 4. It was averred that, according to the forensic investigations, there were inconsistencies and irregularities in the documents, including a lack of requisitions, LPOs not signed by an accountant to pass to the vote book, and counterfeit LPOs, on several other grounds which necessitated the institution of the present suit. 5. It was also averred that the Plaintiff/Applicant’s mandate is not ousted by correspondence from the ODPP, the DCI or the Attorney General, or by the report of the Multi Agency Team. Further, it was averred that the case herein is primarily about the legality of the payment vouchers in issue, together with their annexures; that lifting the injunctive orders at this stage would render the Plaintiff/Applicant’s case moot; and that the issues raised by the 1st Defendant/Respondent require a full hearing. 6. In response to the allegation that the Plaintiff/Applicant’s Application is fatal because there is no plea that money has left the Interested party or the treasury, and therefore freezing powers do not apply, it was deposed that the Application was brought under Section 11(1)(j) of the EACC Act and not under Section 56 of ACECA. It was further deposed that it has not been disputed or denied that vouchers have been prepared for payment and that there are claims for payment of the same. Hence, there is a real risk that the amounts will be paid, for which there are allegations that the goods were not delivered and that the payment is based on fraudulent documents. 7. It was therefore deposed that no sufficient reasons have been given to warrant varying and/or setting aside the temporary injunctive orders, and it was prayed that the 1st Defendant/Respondent’s Application and the 5th and 6th Defendants/Respondent’s Applications dated 15th December, 2025 be dismissed with costs. 8. The 5th and 6th Defendants/Respondents filed a Supplementary Affidavit, sworn on the 17th of March 2026. It was averred that, in paragraph 6 of the Plaintiff/Applicant’s Replying Affidavit, the Applicant stated that they had two options, namely forwarding to the DPP or filing a suit, but failed to explain why the suit was not filed from 2022 or before December 2025. It was further averred that it was agreed that members of the EACC were part of the 2nd Multi Agency Team conducting verification and signed the report approving the bills for payment, and as such they cannot run away from the report. 9. The Applications were canvassed by way of Written Submissions. **5TH AND 6TH DEFENDANTS/RESPONDENTS SUBMISSIONS** 1. The 5th and 6th Defendants/Respondents filed Written Submissions dated 17th March, 2026. It was submitted that, in obtaining the ex parte Orders, the Plaintiff/Applicant concealed material facts, made misrepresentations, and relied on the case of **Munga v African Banking Corporation Ltd & another (Commercial Suit E006 of 2025) [2025] KEHC 4668 (KLR) (10 April 2025) (Ruling), Challis (Suing through the Attorney Isaack Ntongai Samwel) v General & 4 others (Environment & Land Case 18 of 2021) [2023] KEELC 17195 (KLR) (5 May 2023) (Ruling) - Neutral citation: [2023] KEELC 17195 (KLR), and NGURUMAN LIMITED V JAN BONDE NIELSEN & 2 OTHERS, NRB CIVIL APPEAL No. 77 of 2012 [2014] eKLR**, in support thereof, urging the Court to vacate the said orders. 2. It was also argued that the Plaintiff/Applicant’s application failed to establish a prima facie case with chances of success on account of insufficient evidence in support of the allegations of fraud. Reliance was placed on the locus classicus of **GIELLA V CASSMAN BROWN & CO. LTD [1973] EA 358 and on MRAO LTD V FIRST AMERICAN BANK OF KENYA LTD & 2 OTHERS (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR) [2003] KLR 125** for the threshold to be met. 3. They argued that the particulars of fraud were insufficiently particularised and failed to meet the required standard. They further argued that there would be no irreparable harm if the orders were vacated, and that the balance of convenience favoured them, given that goods had been supplied and payments had not been made. 4. They further argued that the Plaintiff was guilty of laches and relied on the case of **Benjoh Amalgamated Limited & Another V Kenya Commercial Bank Limited** [2014] eKLR, **Abaye V Julius (Civil Appeal E130 of 2021) [2025] KEHC 12147 (KLR)** and **Showind Industries Ltd V Guardian Bank Ltd & Another [2002] eKLR** in support thereof. 5. They thus submitted that the Court ought to dismiss the Plaintiffs' Application dated 5th December, 2025, and allow their Application dated 15th December, 2025. **PLAINTIFF/APPLICANT’S SUBMISSIONS** 1. The Plaintiff/Applicant filed their written submissions, dated 20th April, 2026, in opposition to the Applications of the 1st, 5th and 6th Defendant/Respondents, dated 15th December, 2015. 2. Regarding the issue of whether the threshold for setting aside the ex parte injunctive orders has been met, the Plaintiff/Applicant submitted that the power to set aside the orders was discretionary, exercisable upon the Applicant demonstrating sufficient reason or material to do so, and relied on the case of Sweet R Us Limited v M’Oriental Bank Limited & another [2025] KEHC 14921 (KLR). 3. It was submitted that, in relation to the allegation that the same were issued following material non-disclosure of relevant facts, the Plaintiff was an independent institution, and that any correspondence and directions from other bodies did not oust its statutory mandate under section 11(1)(j) of the EACC Act. Reliance was further placed on the case of **Kenya Electricity Transmission Company Limited v Kibotu Limited [2019] eKLR** on the issue of non-disclosure. They argued that material disclosures and evidence had been placed before the court, warranting the granting of the ex parte orders, and that no demonstration or sufficient reason had been provided to vary or set aside the ex parte orders. 4. Regarding the issue of inordinate delay, the Plaintiff/Applicant submitted that the request to investigate the vouchers was received in July 2022, and therefore the Plaintiff did not delay filing the suit for 12 years. Furthermore, it was argued that no statutory timelines for investigations were imposed, and therefore the proceedings are excluded from the Limitation of Actions Act, relying on section 42 thereof. 5. Reliance was placed on the decision of the Supreme Court of India, Abdul Rehman Antulay & ors Vs R.S. Nayak & Anr, AIR 1992 Supreme Court 1701, in support of the averment that the case herein is complex in nature, hence the period taken to investigate, and the reasonableness of filing the suit herein. The Court was urged to dismiss the Applications of the 1st, 5th and 6th Defendants with costs. **ANALYSIS AND DETERMINATION** 1. I have considered the Applications of 1st 5th & 6th defendants, the responses thereto, the rival submissions and the law. The issue for determination is whether this Court should vary and/or set aside the ex parte injunctive orders issued on 8th December 2025. **Whether this Court should vary and/or set aside the ex parte injunctive orders issued on 8th December, 2025?** 1. From the outset, I must point out that the issue regarding the Plaintiff's withholding of the documents and failure to submit them to the PBVC has since been overtaken by events, in light of this Court's Orders of 24th December 2025 and the expiry of that body's mandate on 31st December 2025. The issue is therefore moot and will not be addressed. 2. The crux of the Defendants/Respondents' case for setting aside the ex parte orders of the 8th of December, 2025 is that those orders were obtained through material non-disclosure of the clearances granted by various bodies, including the ODPP, the DCI and the PBMAT, in which the Plaintiff/Applicant participated. 3. On the contrary, the Plaintiff/Applicant argues that the clearances issued by the said bodies did not oust its jurisdiction to conduct its investigations and to institute the present suit. 4. The Plaintiff/Applicant is established as an independent institution under Article 79 of the Constitution of Kenya and under Section 3 of the EACC Act, and is further operationalised by that Act. Its functions are set out in Section 11 of the EACC Act, and the Plaintiff/Applicant asserts that the Application is brought pursuant to Section 11(1)(j). The said provision provides as follows; **“institute and conduct proceedings in court for purposes of the recovery or protection of public property, or for the freeze or confiscation of proceeds of corruption or related to corruption, or the payment of compensation, or other punitive and disciplinary measures including proceedings for the recovery of property or proceeds of corruption located outside Kenya;”** 1. The question therefore is whether the decision not to charge by the ODPP, the allegation that there were clearances by the DCI and the PB- MAT, and the Plaintiff/Applicant’s participation in those clearances are sufficiently material to warrant setting aside the ex parte interlocutory orders. 2. The Court in **High Court Anti-Corruption Suit No. E027 of 2023: EACC v Mzalendo Kibunja & others** outlined the distinct nature of criminal and civil proceedings as follows; **“ 6. Notably, civil recovery proceedings for their part are not necessary to be predicated on prior conviction. They may as already stated above, be non- conviction based or be based on prior conviction.** **7. In Anti-Corruption litigation by EACC, the criminal process and the civil process are parallel processes that can be undertaken simultaneously or consequentially. One of the subtle distinctions of the two processes is the standard of proof. While in criminal prosecution the standard of proof is that of beyond reasonable doubt, the standard of proof in civil recovery proceedings is that of a balance of probability (preponderance of evidence).** 1. This position was adopted in **Enterprises & another v Ethics & Anti-Corruption Commission; Mangiti & 22 others (Interested Parties) (Anti-Corruption and Economic Crimes Case 7 of 2016) [2025] KEHC 14926 (KLR)**. Therefore, in my view, the fact of those clearances by those bodies does not persuade the Court that the ex parte orders were not reasonably issued. 2. The 1st Defendant/Respondent also argued that the ex parte orders were based on a fatal application, as the money had not been released and therefore there was nothing to preserve. The Plaintiff refuted these claims, stating that the Application was not brought pursuant to section 56 of the ACECA but under section 11(1)(j) of the EACC Act. It was further argued that there was no dispute over the preparation of the vouchers and the claims for payment, and hence the Application was properly before the Court. 3. I agree with the Plaintiff's submission. Under the said provision, the Plaintiff is granted the power to institute a suit with a view to protecting public property, which is the case here. In the case of **Ethics and Anti-Corruption Commission v Kanani & 5 others [2024] eKLR**, it was stated that; “…**the discharge, variation and setting aside of preservation orders should be only in the most exceptional, extra-ordinary and overly deserving circumstances only. Such as where there is a glaringly manifest error of principle, a grave error of law, a fundamental glaring injustice, a miscarriage of justice, or an absurd absurdity in those orders or in the court's record. Such error being so grave as cannot await the final conclusion of the suit itself; and so very manifest to the plain eye as not to require a tooth-comb, critical analysis, philosophical inquiry, or craft of interpretation.”** 1. Consequently, I find that the Applications of the 1st Defendant/Respondent and of the 5th and 6th Defendants/Respondents, both dated 15th December, 2025, are without merit. **THE PLAINTIFF/APPLICANT’S APPLICATION.** 1. The third Application for consideration is the Plaintiff/Applicant’s Application dated 5th December, 2025, brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rule 1 and 51 Rule 1 of the Civil Procedure Rules, and Section 11 (1) (j) of the EACC Act, seeking the following Orders; 2. Spent 3. Spent. 4. Spent. 5. That pending the hearing and determination of this suit, the 1st - 6th Defendants, by themselves, their agents, servants, successors in title or personal representatives, be restrained from claiming payment of Kshs. 6,167,797,655/- from the Interested Party on the basis of the payment vouchers with annexures serialised as S/No. 000001-002901. 6. That pending inter partes hearing and determination of this suit, the Interested Party be restrained from effecting payment of the sum of Kshs. 6,167,797,655/- to the 1st - 6th Defendants relating to the payment vouchers with annexures serialized as S/No. 000001-002901. 7. This Court be pleased to make such other order in the interest of justice. 8. The costs of this application be provided for. 9. The Application is based on the grounds set out therein and on the supporting affidavit of Beatrice Oduor, sworn on the same date. The Applicant averred that it received a letter dated 15 July 2022 from the Cabinet Secretary (CS) of the Ministry of Public Affairs, Gender, Senior Citizens and Special Programs, requesting an investigation into the Kshs. 6 billion in payment claims submitted to the Interested Party by various suppliers. 10. It was averred that, pursuant to its investigations, the 1st to 6th Defendants/Respondents submitted fraudulent claims totalling over Kshs 6 billion for payment of goods purportedly delivered to the Headquarters Unit (HQ) and the Mechanical and Branch Unit (MTB) of the Interested Party during the FYs 2013/2014, 2014/2015 and 2015/2016. 11. It was their averment that the fraudulent scheme involved the 7th to 15th Defendants/Respondents, who were public officers of the Interested Party and falsified accountable documents, thereby enabling the 1st to 6th Defendants/Respondents to submit claims based on fictitious procurement contracts. 12. The Plaintiff/Applicant thus contended that, by virtue of the 1st to 6th Defendants/Respondents' continued demand for Kshs 6,167,797,655/= for goods not delivered, based on fraudulent accountable documents, it was necessary to prevent payment of that amount, as the government was likely to be prejudiced and to incur loss. 13. Pursuant to the Application, this Honourable Court, on 8th December 2025, granted injunctive orders pending the hearing and determination of the Application. **THE 2ND DEFENDANT/RESPONDENT’S RESPONSE** 1. The 2nd Respondent filed a Replying Affidavit, sworn by Peter Mathenge on 17th December 2025. He averred that the 2nd Respondent duly supplied diesel light, with a cumulative quantity of 6,703,882 litres over the three financial years, and is therefore owed Kshs. 714,490,055/=. He further averred that this amount is a legitimate claim. 2. It was deposed that the Plaintiff/Applicant has approached this Court with unclean hands, with a view to preventing the Defendants/Respondents from having their claims verified and approved by the PBVC, whose mandate had been extended to 31st December, 2025. It was further deposed that the same was brought in bad faith close to the said expiry, and that the Plaintiff/Applicant had in its possession the information it now seeks to rely on to stop the payments. 3. It was averred that the Plaintiff/Applicant is guilty of laches and has deliberately frustrated the 2nd Defendant/Respondent in its pursuit of payment by withholding the said documents from the Pending Bills Verification Committee without any valid justification, despite numerous requests. It was further averred that the allegations of fraudulent supporting documents produced by the 2nd Defendant/Respondent are factually incorrect, as the Applicant failed to produce evidence that any findings were submitted in relation to the fraudulent claims. 4. The 2nd Respondent also deposed that the Plaintiff/Applicant has failed to demonstrate sufficiently the ingredients for the grant of injunctive relief by merely stating that there is an apprehension that the 2nd Respondent will be paid, but has failed to demonstrate how prejudice will be caused if payments are made. 5. It was also averred that the Plaintiff/Applicant is guilty of material non-disclosure by failing to disclose the PBVC mandate, which was time-bound; failing to disclose the grounds for the delay in filing this suit, despite investigations concluding in 2023; failing to disclose clearance from other investigative bodies regarding any alleged wrongdoing; failing to disclose that the investigations they conducted were outside the Pending Bills Multi Agency Team (PB-MAT); and failing to disclose that the ODPP did not recommend any charges against them after the file was forwarded for recommendations. 6. Further, no justification was provided for the sudden objection, yet the Plaintiff/Applicant was part of the cabinet-mandated team responsible for the verification process. 7. The 2nd Defendant/Respondent thus stated that the Application herein is an abuse of the Honourable Court's process and should be dismissed with costs. **3RD DEFENDANT/RESPONDENT’S RESPONSE** 1. The 3rd Respondent filed Grounds of Opposition dated 17th December, 2025, stating that the Application is scandalous, frivolous and vexatious, and that the entire process is an abuse of the court process. It was further stated that the suit herein is sub judice and res judicata, and that it is a reaction to **NRB HCCHRPET/E796/2025, Tison Limited, Jimchar Enterprises Limited & 2 others v EACC and NYS**, which sought to compel the release of the vouchers held by the Pending Bills Committee for verification, whose mandate expired on 31st December 2025. 2. It was stated that the ODPP had pronounced itself on the issue of fraud, stating that there was no fraud by the Defendants/Respondents, vide letters dated 5th June, 2024, and 7th May, 2025, and that EACC should close its file. 3. It was further stated that there was material non-disclosure by the Applicant, namely that 2 multi-agency teams appointed by the CS Ministry of Public Service and Gender, with cabinet approval, investigated the said bills and vouchers and recommended them for payment, including officers from the Auditor General, the Attorney General, the Public Procurement Directorate, the Directorate of Criminal Investigations and EACC. 4. It was their averment, therefore, that there was no credible evidence of any fraud, illegality, impropriety or wrongdoing on their part, and, as such, the suit herein is incompetent, misconceived and bad in law. **4TH DEFENDANT/RESPONDENT’S RESPONSE** 1. The 4th Defendant/Respondent filed a Replying Affidavit, sworn by Susan Nyambura on 16th December, 2025. It was averred that she was the sole proprietor of the 4th Respondent, that the 4th Respondent had legally supplied goods to the interested party, and that all documentation for payment had been submitted, but payment has yet to be made. 2. She deposed that, vide several letters, the Defendants/Respondents had requested that the vouchers be released to NYS and the PBVC for the affected Defendants to seek further verification of their claims and payments, but the Applicant concealed that fact. She further deposed that the suit herein was an afterthought following the filing of the suit mentioned by the 3rd Respondent in their Grounds of Opposition. 3. The 4th Respondent contended that the PBVC was a time-bound statutory body whose mandate expires on 31st December 2025. Hence, the impugned orders were prejudicial and oppressive in light of that fact, and that the Applicant was maliciously advancing allegations of fraud, whereas the ODPP had cleared her of any wrongdoing and advised the Applicant to close its file. She thus deposed that the Application herein is frivolous, scandalous and vexatious and should be dismissed with costs for want of merit. **5TH AND 6TH DEFENDANTS/RESPONDENTS RESPONSE** 1. The 5th and 6th Respondents filed a Replying Affidavit, sworn by Michael Tyson Otieno, on 15th December, 2025. It was averred that the 5th and 6th Respondents supplied goods and submitted all documents required for payment, and that no evidence of fraud can be produced. They further averred that the suit herein is frivolous, vexatious and scandalous, and an afterthought following the filing of the petition to compel them to release the vouchers to the Pending Bills Verification Committee. 2. It was contended that the allegations of fraud are bald, generalised, speculative and unparticularised, and, as such, there is no credible evidence to demonstrate any fraud or illegality. 3. It was contended that the Plaintiff/Applicant failed to disclose the following; 1. That the verification of the pending bills was based on a criterion developed by the PB-MAT and approved by the Cabinet. 2. That the second Multi Agency Team investigated the same bills and recommended them for payment. 3. That the DCI had investigated the same bills and vouchers and cleared them of any wrong doing hence recommending them for further administrative actions. 4. That the ODPP had made recommendations regarding the issue of fraud advising them to close the file. 5. That the Defendants/Respondents had severally requested that the vouchers be released to the Interested party and the PBVC for further verification of their claims. 4. They averred that, instead, the Plaintiff/Applicant invites this Honourable Court to act on conjecture, suspicion and innuendo rather than on evidence, and has not demonstrated that the public stands to suffer any irreparable loss incapable of compensation, as there is no evidence of fraud. 5. It was also averred that the Plaintiff/Applicant has dragged out the underlying issues for over 12 years and now seeks to weaponise the Court process in bad faith, rendering the Application vexatious and scandalous. It was further averred that the Plaintiff/Applicant will suffer no prejudice if the orders sought are discharged, set aside or vacated, and that the balance of convenience favours the Defendants/Respondents. They prayed that the Application be dismissed with costs for want of merit. **THE 8TH AND 9TH RESPONDENTS RESPONSE** 1. The 8th and 9th Respondents also filed a joint Replying Affidavit, sworn on the 17th of December 2025. They averred that the Plaintiff/Applicant is guilty of laches and concealment of material facts, and is further guilty of misjoinder, as the orders sought against them were defective, since they were not the paying entity and did not have the power to effect the said payments. They contended that the Plaintiff/Applicant seeks conservatory orders against a paying entity that is not part of the suit. 2. They averred that they worked in the MTB, that the 1st to 6th Defendants/Respondents were strangers to them, and that the allegations against them were baseless, as they could neither issue any LPOs or tenders nor were they involved in the bids. They were only tasked with receiving the goods and issuing relevant documentation upon inspection and certification by the relevant bodies or personnel. 3. They contended that they dealt only with the fuel stores, which dealt only in diesel and petrol, and that if there was any fraud, it was perpetrated by the 1st to 6th Defendants/Respondents, as the documents allegedly presented were not signed by them. 4. They deposed that upon being summoned by the Plaintiff/Applicant, they disowned certain documents, including delivery notes and vouchers, which were allegedly signed by them, and that these documents were forgeries. In their written statements, they provided their specimen signatures, for which no results have been annexed. They therefore averred that the Plaintiff/Applicant was using them as sacrificial lambs in this suit, which was meant to tarnish their names and careers, and that they were innocent, yet they stand to suffer irreparable harm. 5. They therefore argued that the suit herein was defective for the absence of the paying entity and that the Application lacked merit and ought to be dismissed with costs. **PLAINTIFF/APPLICANT’S REJOINDER** 1. The Plaintiff/Applicant filed a Further Affidavit, sworn by Beatrice Oduor on 19th March, 2026, in response to the 2nd, 3rd, 4th, 5th, 6th, 8th and 9th Replying Affidavits and Grounds of Opposition. It was reiterated that investigations established that the 1st to 6th Defendants/Respondents were suppliers and the 7th to 15th Defendants/Respondents were public officers in NYS, who together devised a scheme and falsified accountable documents, thereby facilitating the submission of payment claims based on fictitious procurement contracts. Accordingly, the Application for an injunction concerns the legality of the payment vouchers in issue, together with their annexures. 2. It was averred that the requirements of Article 50 of the Constitution were met and that the 4th Defendant/Respondent could answer the pleadings in this suit. It was further averred that the suit seeks to protect public property pursuant to the Plaintiff/Applicant’s mandate under section 11(1)(j) of the EACC Act by seeking to prohibit payments of the claimed amount. The prayers were not the same as those sought in HCCHPET E796 of 2025. 3. It was also averred that the Plaintiff/Applicant is now in possession of the vouchers pursuant to a Court order of this Court issued on 24th December, 2025, and that there are no statutory timelines for investigations by the Plaintiff/Applicant, an independent institution. 4. In response to the allegation of a violation of Article 47 of the Constitution, it was deposed that no demonstration has been made to show that, in carrying out its mandate, the Plaintiff/Applicant has violated that right. Further, the suit herein is to protect public property, which is not within the purview of the ODPP and DCI; hence, the direction by the ODPP to close the inquiry file does not oust the suit herein, noting that the standard of proof in a criminal case differs from that in a civil case. 5. It was deposed that, in relation to the 2nd Multi Agency team, their participation was not for investigation but was limited to the terms of reference, which were to verify historical pending bills based on the criteria, including evidence that the goods and services supplied were ordered by the Officer in Charge and evidence that the goods and services were received and entered in the records of NYS. 6. Further deposition was made that, according to the forensic investigations, there were inconsistencies and irregularities in the documents, including a lack of requisitions, LPOs not signed by an accountant for entry in the vote book, counterfeit LPOs, and on several other grounds, which necessitated the institution of the present suit. 7. In response to the 8th and 9th Respondents' contention that no orders were sought against them, it was averred that the Plaint made substantial claims against them, necessitating a full hearing. 8. They thus prayed that it is in the public interest that the orders sought in the Plaintiff/Applicant’s Notice of Motion dated 5th December, 2025 be granted. 9. The Application was also canvassed by way of Written Submissions. **PLAINTIFF/APPLICANT’S SUBMISSIONS** 1. The Applicant filed written submissions dated 20th April, 2026. Reliance was placed on the case of Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] eKLR to guide the Court in an application for interlocutory injunctions. 2. It was argued that the Applicant had established a prima facie case showing that the Defendants/Respondents' payment claims are based on fictitious contracts and fraudulent accountable documents for goods that were never delivered. 3. The Plaintiff/Applicant argued that once an issue of statutory breach is before the Court, it is in the interests of justice for the Court to investigate it. Reliance was placed on the case of Ethics & Anti-Corruption Commission v Vulcan Lab Equipment Ltd & School Equipment Production Unit [2020] KECA 598 (KLR), Civil Appeal 197 of 2018. 4. It was also argued that EACC was an independent institution, and that allegations of directions from other bodies did not oust its jurisdiction to investigate and seek to protect public property. They relied on the case of **Lake Oloiden Youth Group v Ng’ethe (As Administratrix of the Estate of Isaac Njoroge Mugukа) & 5 others; Gituku (MCA, Maielia Ward) & 3 others (Interested Parties) [2025] KEELC 18212 (KLR)** for that proposition. 5. The Plaintiff stated that the standard of proof in criminal cases differs from that in civil cases, and therefore the Defendants/Respondents' argument that the ODPP recommended closing the inquiry file did not render the suit unsustainable. 6. On the question of irreparable damage that cannot be compensated by damages, it was argued that if payments were made to the 1st to 6th Defendants/Respondents, it would be impossible to recover those funds if the suit succeeded, thereby rendering the suit an academic exercise. Reliance was placed on the case of Shivabhai Nathabhai Patel v Manibhai Hathibhai Patel (1959) E.A 907 for that proposition. 7. It was also argued that the balance of convenience favours the Plaintiff, as the funds would be impossible to recover the funds once paid (see Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR), and that it was in the public interest for the Application to be allowed. **4TH DEFENDANT/RESPONDENT’S SUBMISSIONS** 1. The 4th Respondent filed Written Submissions dated 28th April, 2026. They argued that the Plaintiff/Applicant failed to discharge the burden to the required standard for the grant of the injunctive orders, and that the evidence before the Court consisted largely of investigative assertions whose contents remained contested. 2. They also argued that the Plaintiff/Applicant failed to disclose that other public bodies had considered the claims for payment, had found no fraud, and had not made any payments, so the claims could not be considered unlawful. 3. They further submitted that the orders were obtained without full and frank disclosure by the Plaintiff/Applicant, and relied on the case of **Bahadur Ali Ebrahim Shamji v Al Noor Jamal & 2 Others [1998] eKLR.** 4. The 4th Defendant/Respondent cited Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, arguing that the threshold for granting conservatory orders set out therein was not met and that the Defendants/Respondents would suffer irreparable harm if the orders were maintained. The 4th Defendant/Respondent further contended that the Plaintiff’s Application was an abuse of Court process, relying on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR for the definition of an abuse of Court process. 5. The 4th Respondent also argued that their rights under Articles 47 and 50 were violated, contending that their legitimate claims and commercial interests were being curtailed on the basis of untested allegations of fraud, thereby risking those constitutional protections. 6. The Plaintiff/Applicant was also faulted as having acted ultra vires by failing to conduct or conclude investigations before seeking drastic court intervention, by bypassing available statutory investigative mechanisms under Sections 11(1)(d) and 13(2)(c) of the EACC Act, by resorting to ex parte and blanket relief inconsistent with procedural fairness under Section 23(3) of the EACC Act, and by undermining a parallel statutory process (PBVC) without lawful justification. 7. The Court was therefore urged to dismiss the Plaintiff’s Application, with costs. **5TH AND 6TH DEFENDANTS/RESPONDENT’S SUBMISSIONS** 1. The 5th and 6th Respondents were as highlighted (see paragraphs 68-72), and they filed Supplementary Submissions dated 11th May, 2026. It was reiterated that the Plaintiff failed to meet the threshold for the grant of injunctive orders. 2. It was further submitted that the Plaintiff/Applicant’s case was inconsistent and contradictory, and that it relied on the case of **Maura Muigana v Stellan Consulting Limited and The Director of Public Prosecutions, Petition No. E033 of 2021**. It was further submitted that there was no evidence to prove fraud. 3. On the issue of public interest, it was submitted that it should be balanced, rational and grounded in law, as stated in the case of Rachel Adhiambo Ogola & another v Council of Legal Education & another [2017] eKLR. 4. They urged the Court to dismiss the Applicant’s Application, with costs. **ANALYSIS AND DETERMINATION** 1. I have considered the Application, the Responses thereto, the rival submissions and the law. The issues for determination are as follows. 1. Whether the suit herein amounts to sub-judice and is res judicata? 2. Whether the Plaintiff/Applicant has met the threshold for the grant of injunctive orders? **Whether the suit herein amounts to sub-judice and is res judicata?** 1. The 3rd Respondent argued that the suit herein was an afterthought, brought after the institution of **NRB HCCHRPET/E796/2025, Tison Limited, Jimchar Enterprises Limited & 2 others v EACC and NYS**, and that this suit is both sub judice and res judicata. The Plaintiff, on the other hand, stated that the suit herein is materially different from that case, as it seeks to prevent the loss of public money arising from unproven and fraudulent claims. 2. The law on sub judice is set out in Section 6 of the Civil Procedure Act, and res judicata in Section 7. These provisions provide as follows: **“(6) No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.** **(7) No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.”** 1. The Supreme Court in **John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR** held as follows; **[86] We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:** * + 1. **There is a former Judgment or order which was final;** 2. **The Judgment or order was on merit;** 3. **The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and** 4. **There must be between the first and the second action identical parties, subject matter and cause of action** 1. In this case, I am not satisfied that the suit herein is sub judice or res judicata. According to the 3rd Respondent, the suit in **NRB HCCHRPET/E796/2025, Tison Limited, Jimchar Enterprises Limited & 2 others v EACC and NYS**, sought to compel the release of the vouchers held by the PBVC for verification, whose mandate expired on 31st December 2025. The suit herein seeks to prohibit payment of the claimed amount to the 1st to 6th Defendants on the ground that the goods and services were not delivered and the accountable documents were fraudulently obtained. 2. To that extent, the two suits are materially different and cannot be sub judice. Similarly, for a suit to be res judicata, the issues raised must be substantially similar to those in the previous suit, and there must have been a valid judgment rendered by a competent court with jurisdiction on the merits. In the instant case, I have already established that the issues raised are materially different, and this Court has not been furnished with any valid judgment whatsoever showing that the issues raised in the suit herein have been determined by a competent court on the merits. 3. Therefore, the suit is neither sub judice nor res judicata. **Whether the Plaintiff/Applicant has met the threshold for the grant of injunctive orders?** 1. The Plaintiff/Applicant seeks injunctive orders against the 1st to 6th Defendants/Respondents to prevent them from claiming Kshs 6,167,797,655/=, and against the Interested party to prevent it from paying that amount to them. The claim is grounded on the allegation that the alleged goods were not delivered and that there was collusion among the Defendants/Respondents to provide accountable documents in support of the claims, hence the demand for payment. 2. The Defendants/Respondents, on the other hand, allege that the Application fails to satisfy the threshold for the grant of interim injunctive orders, as there is no proof of any fraudulent deeds on their part and the fraud allegations are speculative and not concrete. They also argue that the Application was marred by material non-disclosures of clearances from other investigative bodies, including the ODPP, the DCI and the PBMAT, and cite numerous authorities on the duty to disclose. 3. They argued that the Application failed to satisfy the threshold for the grant of interlocutory or conservatory orders. It was further argued that the Plaintiff/Applicant was guilty of laches for bringing this suit late, despite the documents having been in their possession for close to 12 years. 4. As stated earlier in this Ruling, the fact that other investigative bodies have issued clearances did not oust the Plaintiff/Applicant's investigative mandate in this suit, and therefore that ground fails. 5. The principles for the grant of interlocutory injunctions were set out in the case of Giella vs. Cassman Brown & Co. Ltd (1973) EA. The three principles were outlined as follows. **(i) an applicant must show a prima facie case with a probability of success;** **(ii) an injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury;** **(iii) when the court is in doubt, it will decide the application on the balance of convenience.** 1. In the case of [Nguruman Limited v Jan Bonde Nielsen & 2 Others](http://kenyalaw.org/caselaw/cases/view/97448) **[2014] eKLR** the Court of Appeal stated as follows: **“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See *Kenya Commercial Finance Co. Ltd V. Afraha Education Society* [2001] Vol. 1 EA 86. If the applicant establishes a *prima facie* case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If *prima facie* case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a *prima facie* case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”** 1. A prima facie case must therefore be established as a condition precedent to the grant of interlocutory orders. A prima facie case is one in which, on the face of the material before the Court, a reasonable inference can be drawn that a right has been infringed, thereby calling for rebuttal by the adverse party. See Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR). 2. The Applicant’s claim is that, based on its investigations, goods were not delivered and that there was collusion between the 1st to 6th Defendants/Respondents, as suppliers, and the 7th to 15th Defendants/Respondents, as public officers, in obtaining fraudulent accountable documents which are now used to claim the impugned amount. 3. Notably, in their Replying Affidavit, the 8th and 9th Defendants/Respondents, while denying any fraud on their part, stated that upon being summoned they disowned certain documents, asserting that they had not signed them. Accordingly, I am satisfied that a prima facie case has been established. Furthermore, the allegation that fraud has not been proved requires a full trial and evaluation of the evidence; hence that conclusion cannot be made at this preliminary stage. 4. With regard to irreparable harm, the Plaintiff/Applicant argued that if the 1st to 6th Defendants/Respondents continued to claim payment of the said amount and the interested party paid it, the public would suffer loss. It was further argued that the orders were sought to preserve public funds that would otherwise be irrecoverable once paid. This was also stated in support of the assertion that the balance of convenience favours preserving the said amount pending the hearing and determination of the suit. 5. On the Defendants/Respondents’ side, it was argued that the Plaintiff/Applicant had not demonstrated any risk or imminent danger to show that harm would be occasioned. It was further argued that what was sought to be protected did not exist, and therefore no irreparable harm could be occasioned to the Plaintiff/Applicant. On the contrary, they argued that they stood to suffer more, as they had not been paid for goods supplied, and that the withholding of the vouchers was detrimental on account of non-verification by the PBVC. They thus stated that the balance of convenience was in their favour, allowing them to claim and be paid their rightful dues. 6. I am convinced that the Plaintiff/Applicant has demonstrated that they and the public at large would suffer irreparable harm if the money were claimed and paid before the suit is heard and determined, and that the money would not be recoverable. The Defendants/Respondents have not demonstrated that, should the funds be released to them, they would be in a position to repay them. Accordingly, the balance of convenience is in favour of the Plaintiff/Applicant having the payments withheld pending determination of this suit. 7. Furthermore, in the case of **Ethics and Anti-Corruption Commission v Kanani & 5 others (supra)**, the Court stated as follows; **“…when it comes to whether or not to issue preservation orders in ACECA and POCAMLA proceedings, courts should adopt a precautionary approach and apply the precautionary principle which is an emerging legal principle in Anti- Corruption law, and specifically in civil forfeiture suits.** **Which principle is that any suspected property or funds need to be quarantined and preserved until it is determined that it is not a proceed of crime, intended for use in crime, it is not related to money laundering; and until the subject has explained how it was acquired, and proved that it was not acquired through corrupt conduct. Similarly, where there are preservation orders subsisting, courts should as a general rule and as good practice, be in favour of allowing those orders to subsist until the suit is heard and determined and the subject finally vindicated after due process….** **I further note that in forfeiture suits, the balance of convenience is logically in favour of preservation or quarantining of the suspected or tainted asset until the proceedings are concluded. This is not only because of the public interest, but also because of the grave and delicate nature of allegations of corrupt conduct generally. Especially where the subject is accused of or suspected of the theft, plunder or misappropriation of public funds or public resources. Such public considerations when weighed against the private interest of the subject, they must prevail”** 1. In relation to the allegation that the Plaintiff/Applicant is guilty of laches, it has been demonstrated that the request to conduct investigations was received in July 2022, a fact not disputed. Therefore, twelve years could not have lapsed since then. 2. The allegations of violations of Articles 47 and 50 of the Constitution by the 4th Defendant/Respondent are also found to be without merit. First, it has been established that the Applicant's mandate is not subject to the control of any outside body; hence, the decision to institute this suit is pursuant to its mandate. Furthermore, proof of fraud is established upon hearing and evaluating evidence and is not determinable at this stage. 3. The 8th and 9th Defendants/Respondents also alleged that they were improperly joined in the suit, as they were not the paying entity and were being used as scapegoats. However, at this interlocutory stage, it is impossible to make that determination, as there are substantial allegations against them in the Plaint that require their response. 4. In conclusion, I find merit in the Plaintiff/Applicant’s Application dated 5th December, 2026. 5. Consequently, I make the following orders; 6. **The 1st and the 5th and 6th Defendant****s/Respondents Application both dated 15th December, 2025 lack merit and are hereby dismissed.** 7. **The Suit herein is neither sub judice nor res judicata.** 8. **The Applicant’s Application dated 5th December, 2025 is allowed in terms of prayers 4 and 5.** 9. **Costs shall abide by the outcome of the Suit.** **Dated, Signed and Delivered Virtually This 31st Day Of July 2026.** **R.E.OUGO** **JuDGe** **In the presence of:** **M/S Cherono - For the Plaintiff** **Mr. Ondindo - For the 1st Defendant** **Mr. Kibiro Njenga -For the 2nd Defendant** **Mr. Tanui - For the 3rd Defendant** **Mr. Kirimi -For the 5th & 6th Defendants** **Mr. Omuyoma - For the 10th & 11 Defendants** **Adan/ Minah - C/A**