[2018] KEHC 2616 (KLR)
The court exercised its discretion to allow the defendants limited access to Kshs 3 Million from the frozen account, considering the evidence that the 1st defendant is servicing a substantial loan and requires funds for legal and personal needs. The court noted that the defendants had previously accessed funds from...
Source-derived case information.
- Citation
- [2018] KEHC 2616 (KLR)
- Parties
- Plaintiff: Ethics and Anti Corruption Commission; Defendant: Jimmy Mutuku Kiamba; Defendant: Tracy Mbinya Musau; Defendant: Jimbise Limited; Defendant: Muthaiga Green Acres Ltd; Interested Party: Equity Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Anti-Corruption and Economic Crimes Case 1 of 2016
- Procedural Posture
- Anti Corruption and Economic Crimes Case / Interlocutory Application for Access to Frozen Funds
- Outcome
- Application for limited access to funds allowed.
- Legal Topics
- Interlocutory Orders, Freezing of Bank Accounts, Access to Frozen Funds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ethics and Anti Corruption Commission
Plaintiff
Jimmy Mutuku Kiamba
Defendant
Tracy Mbinya Musau
Defendant
Jimbise Limited
Defendant
Muthaiga Green Acres Ltd
Defendant
Equity Bank Limited
Interested Party
Procedural Posture
Anti Corruption and Economic Crimes Case / Interlocutory Application for Access to Frozen Funds
Legal Issues
- 1 Whether the defendants should be granted limited access to Kshs 3 Million from a frozen bank account pending the hearing and determination of the suit.
- 2 Whether an oral application for access to frozen funds is procedurally proper or a formal application is required.
Ratio Decidendi
The court exercised its discretion to allow the defendants limited access to Kshs 3 Million from the frozen account, considering the evidence that the 1st defendant is servicing a substantial loan and requires funds for legal and personal needs. The court noted that the defendants had previously accessed funds from the account and that sufficient assets remain preserved. The court balanced the need to preserve the subject matter of the suit with the defendants' right to access necessary funds, and in the interest of justice, granted the application. However, the court directed that no further applications for access to the funds would be entertained pending the conclusion of the matter,...
Court Disposition
Application for limited access to funds allowed.
Orders
- The defendants are granted access of up to Kshs 3 Million from account No. MM 1428009390 at Stanbic Bank Limited.
- No further applications for access to the moneys held shall be entertained pending the conclusion of this matter.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ANTI-CORRUPTION & ECONOMIC CRIMES CASE NO. 1 OF 2016
ETHICS AND ANTI CORRUPTION COMMISSION .............PLAINTIFF
VERSUS
JIMMY MUTUKU KIAMBA ............................................1ST DEFENDANT
TRACY MBINYA MUSAU ...............................................2ND DEFENDANT
JIMBISE LIMITED ............................................................3RD DEFENDANT
MUTHAIGA GREEN ACRES LTD...................................4TH DEFENDANT
AND
EQUITY BANK LIMITED........................................ INTERESTED PARTY
RULING
The Counsel for the defendants herein Mr. Makokha has made an oral application seeking this court’s indulgence to allow access to Kshs 3Million from their bank account. He says the 1st defendant is servicing a loan of Kshs 180Million, he needs to pay legal fees and attend to other personal needs. He has pleaded with the court to consider his clients’ plea and grant the limited access sought.
Mrs Odipo holding brief for Mr. Kagucia for the plaintiff has opposed the application arguing that they should file a formal application so that the plaintiff can respond to it. She submitted that there was sufficient time before the hearing date for the defendants to do that. I have noted that the defendants last accessed account No. MM 1428009390 Stanbic Bank Limited for Kshs 3 Million in an account holding over Kshs 100 Million on 20th March 2018. From the evidence so far on record it is true that the defendants are servicing a loan of Kshs 180 Million secured in November 2014. They may require some cash to supplement what they are getting from the rental houses, water sales and transport. Since this matter has now taken off in terms of hearing the Court is now in a position to exercise some discretion based on the evidence so far received. Still preserved are moneys in several bank accounts and what has been referred to as Landed properties. It is my sincere hope that none of the parties will slacken the momentum gained towards the hearing and conclusion of this matter. In the interest of justice, I will allow the application for limited access of upto Kshs 3 Million (Three Million shillings only) from account No MM 1428009390 at Stanbic Bank Limited. I further direct that this court shall not entertain any other application for access to the moneys held whether formal or informal, pending the conclusion of this matter.
Orders accordingly.
Dated signed and delivered this 9th day of October 2018 in open court at Nairobi.
………………
HEDWIG I. ONG’UDI
JUDGE