https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11422

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION** **ACEC MISC. APPL. NO. E048 OF 2025** **ETHICS AND ANTI-CORRUPTION COMMISSION….. APPLICANT** **VERSUS** **TURKENYA TOURS AND SAFARIS LIMITED......1ST RESPONDENT** **SMART FLOW TRAVEL LIMITED...................2ND RESPONDENT** **AFROMERCH TRAVEL KENYA LIMITED.........3RD RESPONDENT** **DICKSON KIBUNYI MAHIA...........................4TH RESPONDENT** **CAROLINE MUTHONI KARIUKI.....................5TH RESPONDENT** **RULING** 1. The 1st to 4th Respondents filed a Notice of Motion application dated 21st May 2026 under Certificate of Urgency pursuant to Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Section 56(3), (4) and (5) of the Anti-Corruption and Economic Crimes Act, 2003, Articles 40, 47, 50 and 159 (2) (b) of the Constitution, and all other enabling provisions of law**.** 2. The 1st to 4th Respondents seek for the following orders: - 3. *Spent* 4. Pending the inter partes hearing of the Application , this Honorable Court be pleased to set aside the exparte Order dated 11th May 2026, which extended the preservatory orders dated 13th November 2025, in respect of the 1st, 2nd, 3rd & 4th Respondents/Applicants 5. In the alternative to prayer 2 above, the Honorable Court be pleased to vary the ex parte Order dated 11th May 2026, in respect of the 1st, 2nd, 3rd & 4th Respondents/ Applicants on such terms as are just and in the interest of justice. 6. This Honorable Court be pleased to issue an order directing the Applicant/Respondent (EACC) to conclude any pending verification and/or investigation in respect of the 1st, 2nd, 3rd & 4th Respondents/Applicants within Twenty-One (21) days from the date hereof, in default of which all Preservatory Orders in respect of the 1st, 2nd, 3rd & 4th Respondents/Applicants shall stand discharged. 7. This Honorable Court do make any such further orders and issue any other relief it may deem just to grant in the interests of justice. 8. The costs of this Application be provided for. 9. The application is premised on grounds and the affidavit of Dickson Kibunyi Makia that; the 1st to 4th Respondents stated that they became aware on 11th May 2026 that the court had, on an ex parte application by the Ethics and Anti-Corruption Commission (EACC) dated 8th May 2026, extended the preservation orders issued on 13th November 2025 for a further six months, thereby continuing to prohibit any dealings with the funds held in their bank accounts. 10. They stated that they were aggrieved by the extension, arguing that the court granted the maximum statutory extension under Section 56(3) of the Anti-Corruption and Economic Crimes Act (ACECA) without notice to them or their participation, despite their having already demonstrated the legitimate source of the funds. They maintained that a fair-minded and informed observer would conclude that there was a real possibility of apparent bias, relying on *Porter v Magill* [2002] 2 AC 357. 11. The 1st to 4th Respondents further averred that the EACC had been afforded sufficient time to investigate the allegations but had failed to establish that the funds were proceeds of economic crimes, relying solely on suspicion. They cited Ethics & Anti-Corruption Commission v Oregonia Supplies Services & another [2016] KEHC 5161 (KLR), asserting that the continued freezing of their accounts was unjustified. 12. They argued that the court’s decision to grant the maximum six-month extension, rather than directing an expedited inter partes hearing or granting a shorter extension, amounted to an improper exercise of discretion. According to them, extending the preservation orders without a full hearing, tested evidence, or an opportunity to defend themselves violated their right to a fair hearing under Article 50(1) of the Constitution. 13. The 1st to 4th Respondents further noted that the preservation orders had ceased to be a temporary investigative measure and had instead become a substitute for substantive proceedings, with no indication of when the investigations would conclude. According to them, the EACC had failed to account for the previously granted six-month period and appeared intent on conducting indefinite investigations. 14. They also stated that, arising from the same investigation, the EACC had obtained separate preservation orders in HCACEC Misc. E014 of 2026, freezing additional assets belonging to the 1st Respondent and 4th Respondent. They further stated that the simultaneous freezing of assets in two separate proceedings had caused complete financial paralysis, severely affecting their businesses. 15. The 1st to 4th Respondents therefore urged the court to set aside or vary the extension orders dated 11th May 2026 and to afford them a prompt inter partes hearing within a constitutionally compliant timeframe. They maintained that they had not been charged with any criminal offence, that no forfeiture proceedings had been instituted against them, and that, unless the orders were varied, their assets would remain frozen for a total of twelve months despite their explanations regarding the legitimacy of the funds. They further contended that continued enforcement of the preservation orders violated their constitutional rights under Articles 40, 47, 50 and 159 (2) (b), while asserting that neither the EACC nor the 5th Respondent would suffer prejudice if the orders sought were granted. They concluded that granting the application would serve the interests of justice and uphold the integrity of the court. **RESPONSE** 1. The Applicant, EACC, in response to the applications by the 1st to 4th Respondents dated 21st May 2026 and the 5th Respondent's replying affidavit dated 8th June 2026, filed a replying affidavit, sworn on 16th June 2026 by Margaret Wambeti Ngari, an investigator with the Ethics and Anti-Corruption Commission (EACC), stating that the orders were lawfully obtained and remain necessary to protect funds reasonably suspected to be proceeds of corruption linked to embezzlement, kickbacks, and abuse of office at the Sports, Arts and Social Development Fund (SASDF) and the State Department for Sports and Arts. 2. EACC refuted claims that it misled the court or that its application was defective. It clarified that all annexures in its extension application were properly marked, sealed, and described, and that the court relied on a complete and compliant record. The EACC further emphasised that it satisfied the statutory threshold under Section 56(1) of the Anti-Corruption and Economic Crimes Act (ACECA) by presenting evidence that funds flowed from the contracted companies, the 1st to 3rd Respondents, to public officials, including the 5th Respondent, thereby raising reasonable suspicion of kickbacks and inflated contract payments. 3. Addressing the extension of the preservation orders, the EACC explained that the investigations are complex and ongoing. During the initial six-month period, the team made substantial progress, but outstanding work remains, including the analysis of voluminous documents spanning five financial years, verification of transactions, and the recording of witness statements, which can take weeks per officer. The EACC stated that these are not mere administrative tasks, and that the six-month extension granted by the court is neither indefinite nor a deprivation of property rights, but a temporary measure to allow completion of inquiries. 4. EACC rejected the Respondents’ argument that the legal threshold should increase after the initial preservation period. They maintained that the standard remains ‘reasonable suspicion’ at both the grant and extension stages, and that the court is not required at this stage to make definitive findings or assess the full probative value of the evidence. Under Section 56(5) of ACECA, the burden shifts to the Respondents to prove on a balance of probabilities that the assets are not corruptly acquired, a burden the EACC said they have not discharged. 5. Regarding the legitimacy of the funds, EACC noted that although the Respondents have produced procurement documents such as Local Service Orders and invoices, these documents are still under verification. The existence of paperwork does not automatically prove that services were rendered or that payments were lawful, as corruption can be concealed through seemingly regular documentation. EACC also pointed out that the 5th Respondent’s bank statements cover only a limited six-month period, whereas EACC’s evidence spans from January 2021 to November 2025 and reveals the full pattern of suspicious transactions. 6. EACC further rebutted claims of financial hardship, stating that the 1st Respondent has continued to meet its IATA obligations and other business expenses despite the preservation orders, indicating that the frozen funds were not essential working capital. EACC highlighted that the 2nd Respondent made a single cash withdrawal of over Kshs. 70 million, which undermines any suggestion of financial distress. 7. Finally, EACC stated that discharging the orders would cause substantial prejudice, as the funds could be dissipated or concealed, rendering any future recovery proceedings futile. Since the Respondents have failed to show that the preserved assets are unconnected to corruption, EACC urged the court to dismiss the applications with costs and to uphold the preservation orders in the interests of justice. 8. The 5th Respondent filed an affidavit in support of the application by the 1st to 4th Respondents, fully adopting the contents of that application and arguing that both the initial preservation order dated 13th November 2025 and the extension order dated 13th May 2026 were defective and should be set aside. 9. The 5th Respondent’s primary contention was that the EACC’s applications were procedurally flawed. She cited Rule 9 of the Oaths and Statutory Declarations Rules, which requires that all exhibits to affidavits be securely sealed and marked with serial letters of identification. She asserted that in the initial application, EACC had only one properly marked annexure, ‘ER1’, while all other documents were ‘sneaked in’ as unmarked, unsealed loose papers that did not constitute valid evidence. The same defect, she stated, recurred in the extension application, where only seven annexures, MWN1 to MWN7, were properly identified, and the rest were loose papers that ought to be expunged. She deposed that the court therefore lacked sufficient valid evidence to issue either order, and that the EACC obtained the orders through misrepresentation. 10. The 5th Respondent further stated that even if the remaining sealed annexures were sustained, they contain nothing that supports or sustains a claim against her personally. She stated that EACC has not placed before the court any bank statements, account records, or other evidentiary material specifically linking her to the alleged corrupt conduct, and that EACC is therefore ‘lying on oath’ by claiming to have obtained and analyzed financial records relating to her. 11. Regarding the extension of the preservation orders, she deposed that the Section 56(1) ACECA threshold of reasonable suspicion should no longer apply once the initial six-month period has lapsed. She deposed that any extension should be granted only after an inter partes hearing affording the Respondents a fair opportunity to be heard. She also stated that the extension order contradicts the court’s own ruling of 7th May 2026, which had called for expedited resolution of the matter, yet the extension now permits indefinite investigations. She described the prospect of open-ended investigations as an abuse of court process. 12. The 5th Respondent also challenged the lack of progress in the investigations. She noted that, despite six months having passed, EACC is still gathering evidence, including statements from the Directors of the 1st to 3rd Respondents, and has not specified which investigations have been carried out against her or what remains incomplete. She annexed her own bank statement, marked ‘CMK1’, covering June to November 2025, which she said demonstrated the legitimate sources of her deposits, including salary, personal ventures, and travelling allowances. She argued that, since her bank statements clearly show the sources of funds, there was no justification for maintaining the freezing order against her. 13. Finally, she asserted that the continued preservation orders violated her constitutional rights under Articles 40 (right to property), 47 (fair administrative action), 50 (fair hearing), and 159(2)(b) (access to justice). She stated that she had suffered immeasurably over the past six months, as the frozen funds included her salary and legitimate earnings, and that a further six-month extension would cause further prejudice. She urged the court to set aside the extension orders, describing EACC’s case as premised on ‘loosely flying sheets’ that cannot justify the preservation of her assets. 14. The 1st to 4th Respondents filed a Further Affidavit, sworn on 22nd June 2026 by Dickson Kibunyi Mahia, the 4th Respondent, on his own behalf and on behalf of the 1st to 3rd Respondents, adopting and reiterating his earlier Supporting Affidavit of 21st May 2026 and all accompanying documentary evidence establishing the lawful source of the preserved funds. 15. Regarding the legal standard for extensions, the Respondents stated that Section 56(3) of ACECA confers discretion on the court – ‘may’ extend, not ‘shall’ – and that this discretion must be exercised judiciously on specific and cogent grounds. He cited EACC v Equity Bank of Kenya & another (2018) eKLR to support the proposition that extensions are exceptional, time-bound, and conditional upon demonstrated investigative diligence, not granted merely on the EACC’s request. He stated that the EACC has not met this standard. 16. The Respondents further asserted that, despite six months of investigation and the extensive powers and warrants available to the EACC, the EACC’s Replying Affidavit failed to identify a single specific finding implicating the 1st to 4th Respondents in any corrupt act. EACC did not allege that any payment was for services not rendered, that any specific payment was inflated, or that any of the Respondents’ documentary evidence, including Local Service Orders, invoices, payment vouchers, evaluation minutes, or professional opinion memoranda, was forged or irregular. Stripped of generalities, EACC’s case rested on bare suspicion, which the Respondents argued could not justify continued asset freezing, citing EACC v Oregonia Supplies Services & another [2016] KEHC 5161 (KLR). 17. Regarding the progress of the investigations, the Respondents acknowledged that EACC had analysed 430 of 503 payment vouchers, representing 85% of the primary documentary exercise. The outstanding items were identified as: 73 remaining payment vouchers; statement recording from the Respondents, which was rescheduled to 29th May 2026 at their own request and has since been held; responses from 16 of 26 sports federations; and travel records from Immigration. The Respondents stated that none of these residual tasks were complex forensic exercises requiring six months, and that the maximum statutory extension was disproportionate to these essentially administrative tasks. 18. The Respondents also challenged EACC’s reliance on statements from government officials as a justification for extending the freeze on the Respondents’ private business assets. It pointed out that EACC’s scheduling difficulties with public officers could not, as a matter of law or logic, justify the continued freezing of the Respondents’ assets, particularly given that the Respondents themselves had been cooperative and available throughout. 19. Responding to EACC’s contention that ostensibly valid documentation may conceal corruption, the Respondents stated that this proposition was legally untenable. If accepted, it would mean that the stronger the documentary evidence of legitimacy produced by a respondent, the longer the freeze could be extended, which they described as the antithesis of the legal standard established in Ethics & Anti-Corruption Commission v Joseph Chege Gikonyo & another [2016] KEHC 1651 (KLR), where the court held that the EACC cannot rely solely on inferences and must produce credible evidence. They further deposed that the preservation orders were being used as a permanent substitute for proceedings, controlled entirely by the EACC, which was inconsistent with the right to a fair hearing under Article 50(1) of the Constitution. 20. Regarding the risk of dissipation, the Respondents denied any such risk and stated that the EACC’s assertion was made in bare, formulaic terms, without identifying any specific act or transaction. They noted that the 1st to 4th Respondents were permanent residents and business operators in Kenya, subject to the court’s jurisdiction, and had cooperated throughout. They also pointed out that the assets in the related matter, ACEC Misc. Appl. No. E014 of 2026, were Government Securities, fixed-term, government-registered instruments held in a regulated investment account, and were by their nature incapable of clandestine transfer or redemption. 21. Regarding the claim that the preserved funds were not working capital, the Respondents reject this characterization. They stated that the 1st Respondent met its IATA obligations before the freeze because its funds were not frozen. Since the orders were issued, it has been entirely unable to fulfil those obligations, with IATA billing invoices totalling Kshs. 64,329,622.44 and USD 18,409.25 remaining outstanding. They deposed that the EACC’s reliance on pre-order financial competence was self-defeating; it was precisely because those assets are working capital that their preservation has caused the financial paralysis now documented before the court. 22. The Respondents also addressed the EACC’s vague averment that the 2nd Respondent made large cash withdrawals exceeding Kshs. 70 million, stating that no specific date, transaction, or account was identified, and that high transaction volumes were routine for an IATA-accredited travel agency handling large-group bookings for government and private-sector clients, with individual group ticket costs routinely exceeding Kshs. 5 million. 23. Finally, the Respondents detailed the concrete and continuing prejudice suffered by the 1st to 4th Respondents: an inability to pay employee salaries for over seven months, placing over fifty staff and their dependants at risk; outstanding IATA billing obligations that threatened their commercial accreditation Code: 4120072; a KRA debt repayment instalment agreement of Kshs. 21,992,099.71 at risk of default; an inability to service 14 active government and private-sector contracts, including those with State House, ODPP, National Treasury, KPC, and KIPPRA, exposing them to damage claims and loss of commercial standing; and the 4th Respondent’s personal inability to meet family financial commitments. Citing EACC v Oregonia (supra), where the court held that continued freezing of an account would violate the right to acquire and own property under Article 40 of the Constitution, the Respondents deposed that the balance of hardship overwhelmingly favoured them. They prayed that the court dismiss the EACC’s extension application and grant the orders sought in their Notice of Motion dated 20th November 2025. **SUBMISSIONS** 1. The 1st to 4th Respondents filed written submissions dated 23rd June 2026 and argued that, in relation to the extension application, Section 56(3) of ACECA confers a discretionary power on the court - ‘may’ extend, not ‘shall’ - requiring the EACC to provide specific, particularised, and cogent evidence of ongoing necessity. They contended that the EACC’s Replying Affidavit conceded that 430 of 503 payment vouchers had already been analysed, leaving only 73 vouchers, responses from 16 sports federations, travel records from Immigration, and statement-taking from the Respondents. These, they argued, were administrative correspondence tasks at the tail end of a substantially complete investigation and did not justify the maximum statutory extension of six months. They further submitted that the EACC has produced no specific finding of any irregular payment, forged document, or identified corrupt recipient over the entire six-month period. 2. The Respondents also challenged the manner in which the extension was obtained. They pointed out that on 7th May 2026, the court delivered a Ruling dismissing their discharge application but directed that the matter be expedited to a full hearing. The very next day, the EACC filed its extension application and obtained the extension orders ex parte, without disclosing that direction to the court. The Respondents submitted that granting a maximum six-month extension is structurally irreconcilable with the court’s direction for an expedited full hearing, and that the failure to disclose this material fact vitiates the basis for the extension. 3. On the Section 56(5) of ACECA on the discharge threshold, the Respondents argued that they had placed before the court an unimpeached documentary record, including Local Service Orders, invoices, payment vouchers, evaluation minutes, and professional opinion memoranda, which accounted for every shilling of the sums in question and demonstrated compliance with the Public Procurement and Asset Disposal Act and Article 227(1) of the Constitution. They submitted that EACC’s only response was that these documents were ‘still under scrutiny’ and that corruption ‘may’ be concealed through valid documentation. They argued that this was not a rebuttal but a deferral, and that EACC had not alleged that any document was forged, fabricated, or irregular. Relying on Ethics & Anti-Corruption Commission v Joseph Chege Gikonyo & another [2016] KEHC 1651 (KLR), where the court held that the EACC could not solely rely on inferences and must produce credible evidence, the Respondents contended that the EACC had relied entirely on inferences drawn from the fact that SASDF funds passed through their accounts, despite services having been contracted and rendered through a fully documented procurement process. They submitted that they had comprehensively discharged their burden on a balance of probabilities. 4. On constitutional rights, the Respondents detailed the devastating and escalating financial harm they have suffered since the orders were issued on 13th November 2025: unpaid employee salaries for over seven months, endangering the livelihoods of more than fifty staff and their dependants; outstanding IATA billing obligations totalling Kshs. 64,329,622.44 and USD 18,409.25, threatening the loss of IATA accreditation; a KRA debt repayment agreement of Kshs. 21,992,099.71 at risk of default; and fourteen active government and private-sector contracts unserviceable, exposing them to damage claims and permanent loss of commercial standing. Against these concrete losses, they argued that EACC’s asserted risk of dissipation was speculative and unsupported by specific evidence. Citing EACC v Oregonia Supplies Services & another [2016] KEHC 5161 (KLR), where the court held that continued freezing of an account would violate the right to property under Article 40 of the Constitution, the Respondents submitted that what remained was mere suspicion, which could not justify a further six months of asset freezing. They concluded that EACC had failed to satisfy the legal and constitutional threshold for extension, while they had satisfied the threshold for discharge, and urged the court to grant their application with costs. 5. The 5th Respondent filed submissions dated 26th June 2026, contending that EACC’s annexures comply with Rule 9 of the Oaths and Statutory Declarations Rules, which mandates that all exhibits to affidavits be securely sealed under the seal of a commissioner and marked with serial letters of identification. She cited several judicial authorities, including AAD v MED [2023] KEHC 931 (KLR), which, with authority, cited the case of Solomon Omwega Omache & another v Zachary O Ayieko & 2 others (2016) eKLR, where the courts held that the word ‘shall’ denoted a mandatory requirement and that failure to seal and mark annexures rendered them invalid and liable to be expunged. She contended that the EACC’s initial application dated 11th November 2025 contained only one properly identified annexure – ‘ER1’, while voluminous bundles of unmarked, unpaginated, and unsealed documents were ‘sneaked in’. Similarly, in the extension application dated 8th May 2026, only seven annexures - MWN1 to MWN7 – were properly identified, while all other attached documents were loose, flying sheets that ought to be expunged. She submitted that EACC obtained both the initial and extension orders through misrepresentation, as the court relied on incomplete and non-compliant applications, and that these defects were not mere procedural technicalities but went to the root of the proceedings and could not be cured under Article 159(2)(d) of the Constitution. 6. On whether EACC had established a basis for the extension orders, even if the court were to sustain the seven properly marked annexures, the 5th Respondent argued that nothing in that material supported a claim against her. She noted that after six months of preservation orders, EACC’s only findings against her were: (a) obtaining her bank statements, and (b) alleging that payments she received ‘bear the hallmark of kickbacks’. She submitted that this was insufficient to justify the continued freezing of her assets, and that EACC had failed to demonstrate what additional time it required or what value further investigations would add to her case. She emphasised that she was not a service provider, was not a bidder in any tender, and was not a party to any procurement contract, so she could not have inflated any tender sum. EACC, she argued, had confused payments made by the procuring entity to successful bidders with payments to her, which was not a matter requiring investigation since the contract documents spoke for themselves. 7. The 5th Respondent further contended that EACC was still conducting investigations while benefiting from preservation orders, which was tantamount to ‘stealing a match’ from the Respondents. She submitted that a six-month extension was a drastic remedy that, at an interlocutory stage and without a full hearing, violated her right to a fair hearing under Article 50(1) of the Constitution. She argued that EACC had not stated when its investigations would conclude or whether any eventual findings would affect the already pleaded case, and that she had suffered continued prejudice while EACC’s output had been mere allegations and generalisations. She concluded that the 1st to 4th Respondents’ application was merited and should be allowed to the extent of setting aside the extension orders. 8. In submissions dated 29th June 2026, EACC addressed whether it met the threshold for an extension under Section 56(3) of the ACECA. It argued that preservation orders are interlocutory and protective, not punitive, and are intended to preserve property reasonably suspected to be proceeds of corruption pending investigations and recovery proceedings. The statutory threshold of ‘reasonable suspicion’ is deliberately lower at this preliminary stage, and the court is not required to make definitive findings. EACC demonstrated that it had acted diligently, made substantial progress during the initial six months, and required additional time to complete investigations involving transactions spanning six financial years with an aggregate value of approximately Kshs. 4 billion. The outstanding work included scrutinising and verifying voluminous records from public institutions, the State Department for Immigration, sports federations, financial institutions, and the Respondents, as well as recording witness statements. EACC argued that the extension is not indefinite, that the court imposed a definite six-month limit, and that the risk of dissipation remained real because the Respondents retain control over the funds and Government Securities. Citing EACC v Johncele Insurance Brokers Limited (2015) eKLR and EACC v Fastline Freight Forwarders Limited [2017] KEHC 2438 (KLR), EACC submitted that the court properly exercised its discretion in granting the extension, balancing individual rights against the public interest in combating corruption. 9. Regarding whether the Respondents have demonstrated the legitimacy of the preserved funds on a balance of probabilities under Section 56(5) of ACECA, EACC submitted that they have not. EACC was analysing, reconciling, and verifying payment vouchers and procurement documents from the public institutions. EACC argued that the mere existence of such documentation did not conclusively establish legitimacy, as corruption could be concealed through ostensibly valid paperwork. The authenticity and evidentiary value of these documents could only be properly determined at trial. EACC distinguished the cases relied upon by the Respondents: in EACC v Oregonia Supplies Services & another, Malindi Misc. Civil Appl. No. 77 of 2015, the information received by the EACC that the respondent received Kshs. 40 million from Kilifi County turned out to be incorrect, whereas in the present case the preserved funds are direct transfers from SASDF and the State Department, with clear evidence of kickbacks to public officials. Similarly, EACC v Joseph Chege Gikonyo & another (2016) eKLR was distinguishable because the respondents there provided documents demonstrating legitimate investments in farming and real estate, whereas here the very documents relied upon by the Respondents are still under verification. 10. On whether the preservation orders are consistent with constitutional rights under Articles 40, 47, and 50 of the Constitution, EACC submitted that Article 40 of the Constitution does not confer an absolute right to property, and Article 40(6) excludes property unlawfully acquired. The preservation orders are expressly authorised by statute, are temporary, and are subject to judicial oversight. Any limitation on property rights is proportionate and justified under Article 24 of the Constitution in the public interest of combating corruption. Regarding Article 47 of the Constitution on fair administrative action, EACC relied on the Supreme Court decision in EACC & DPP v Tom Ojienda, SC t/a Prof. Tom Ojienda & Associates & 2 others (Petition 30 & 31 of 2019 (Consolidated) [2022] KESC 59 (KLR) (7 October 2022) (Judgment), which held that EACC’s investigative actions did not constitute ‘administrative action’ within Article 47 of the Constitution, as investigations culminate in judicial proceedings rather than administrative determinations. EACC emphasised that the statutory safeguards under Section 56 of the Constitution, including judicial oversight, the right to apply for discharge or variation under subsections (4) and (5), and the temporary nature of the orders, ensure that the Respondents’ right to a fair hearing under Article 50 of the Constitution is protected. 11. Regarding whether EACC’s annexures comply with Rule 9 of the Oaths and Statutory Declarations Rules, EACC submitted that its affidavits contained properly marked and sealed annexures, as detailed in paragraphs 4 to 11 of the replying affidavit of 16th June 2026. EACC argued that the court relied on complete and compliant applications in granting both the initial and extended preservation orders, and that the Respondents’ procedural objections are unfounded. 12. In conclusion, EACC submitted that this Honourable Court properly exercised its discretion in extending the preservation orders, having been satisfied that the statutory requirements were met. EACC prayed that the Respondents’ application be dismissed with costs and that the preservation orders be maintained to afford the EACC sufficient opportunity to conclude its investigations thoroughly, diligently, and expeditiously. **ANALYSIS AND DETERMINATION** 1. Having considered the Notice of Motion application dated 21st May 2026, the affidavit in support ,e EACC’s Replying Affidavit, the 5th Respondent’s affidavit in support, the 1st to 4th Respondents’ Further Affidavit and submissions, the issues for determination are: 2. **Whether** **the court should set aside or vary the extension orders granted on 11th May 2026 under Section 56 (3) ACECA** 3. **Whether** **the EACC has demonstrated sufficient grounds for the continued preservation of the funds.** 4. **Whether the Respondents’ constitutional rights have been violated** 5. **Whether the annexures filed by the EACC offended Rule 9 of the Oaths and Statutory Declarations Rules** 6. **What orders on costs should issue** **Whether the court should set aside or vary the extension orders granted on 11th May 2026 under Section 56 (3) ACECA** 1. The Respondents contended that the extension orders were improperly obtained ex parte, that the court ought to have heard them before granting the maximum statutory extension, and that the EACC failed to demonstrate diligence during the initial six-month preservation period. This court does not agree. 2. Section 56(3) of ACECA expressly empowers the court to extend preservation orders where sufficient cause is demonstrated. The provision does not require that an application for an extension be heard inter partes before a temporary extension order is granted. The purpose of preservation orders is preventive rather than punitive. Their object is to preserve property reasonably suspected to constitute proceeds of corruption pending the completion of investigations and possible recovery proceedings. 3. In *Ethics & Anti-Corruption Commission v Johncele Insurance Brokers Ltd* [2015] KEHC 5278 (KLR), the court observed that: - “Section 56 of the Act as it stands empowers the respondent to apply to the High Court for orders prohibiting transfer of property or dealing with property on evidence that the same was acquired through a corrupt conduct.” 1. Preservation orders serve an important public purpose and should not readily be discharged merely because investigations have not been completed, provided the investigating agency demonstrates diligence. In *Ethics & Anti-Corruption Commission v Fastline Freight Forwarders Limited & 3 others* [2017] KEHC 2438 (KLR), the court held that: - “The limitation of individual rights may be necessary under the Anti-Corruption and Economic Crimes Act so as to allow for examination, investigation, trial or inquiry provided that it is justifiable. In James Joram Nyagah & Another -vs- the Attorney General & Another, High Court Misc. Civil Application No. 1732 of 2004, the court observed: “Clearly, the rights and freedoms of the individual are not absolute but are subject to other people’s rights and the general public interest at large.” Section 53(4) ACECA allows a party aggrieved by a preservation order to apply to the Court to discharge or vary such an order. It reads: “(4) A person served with an order under this section may, within fifteen days after being served, apply to the court to discharge or vary the order and the court may, after hearing the parties, discharge or vary the order or dismiss the application.” The burden, however, rests with the party seeking a discharge or variation of the preservation order. Under Section 53(5) of the ACECA, that party must demonstrate that the property in respect of which the order is discharged or varied was not acquired as a result of corrupt conduct. It is my view that the purpose of the investigations will be defeated if the orders sought are not granted”. 1. The record demonstrates that the EACC explained the progress made during investigations, including the examination of hundreds of payment vouchers, verification of procurement documentation, recording of witness statements, and analysis of financial transactions involving numerous public institutions and financial years. 2. The investigations concern alleged corruption involving public funds amounting to billions of shillings. Such investigations cannot reasonably be expected to be concluded within rigid timelines while substantial documentary verification remains outstanding. 3. This court therefore finds no basis to interfere with the exercise of discretion previously exercised in extending the preservation orders. **Whether the EACC has demonstrated sufficient grounds for the continued preservation of the funds.** 1. The Respondents argued that they had demonstrated the legitimate source of the preserved funds through procurement documents, invoices, payment vouchers and related records, and that the EACC continued to rely merely on suspicion. However, at the preservation stage, this court is not required to determine whether corruption has been proved. The applicable threshold remains reasonable suspicion. 2. In *Ethics and Anti-Corruption Commission v Equity Bank of Kenya & another* [2018] KEHC 6757 (KLR), the court held that: - “The matter before this court is an investigation and not a hearing on the findings by the EACC. The findings will be dealt with and the matter heard at a different forum. The 2nd respondent still has an opportunity to explain the source of the assets …, so that the investigations are brought to a conclusion. … I have also taken into account that investigations in this matter have continued due to the temporary reliefs given by the court from time to time.” 1. The Respondents have indeed produced documentation purporting to explain the source of the impugned funds. However, the EACC has stated that the authenticity and legality of those documents remain under verification and that investigations have revealed patterns of transactions suggestive of kickbacks and abuse of office. 2. At this interlocutory stage, it would be premature for this court to make definitive findings on the probative value of the competing evidence. This court is therefore satisfied that reasonable suspicion continues to exist and that preservation remains necessary to safeguard the subject matter of the investigations. **Whether the Respondents’ constitutional rights have been violated** 1. The Respondents submitted that the continued freezing of their accounts violated Articles 40, 47 and 50 of the Constitution and had paralysed their businesses. This court recognises the hardship caused by preservation orders. Nevertheless, constitutional rights are not absolute. Article 40(6) expressly excludes protection for property found to have been unlawfully acquired. Further, Article 24 permits the limitation of rights where such limitation is reasonable and justifiable in an open and democratic society. 2. In *The Assets Recovery Agency v Quorandum Limited & 2 others* [2018] KEHC 3765 (KLR), the court held that: - “Article 40 provides for the right to property and every person has the right to acquire and own property of any description and in any part of Kenya. The said right to property does not extend to property which has been unlawfully acquired and this is provided under article 40(6) which states as follows; “...the rights under this article do not extend to any property that has been unlawfully acquired…” The above principal was emphasized in the case of Teckla Nandjila Lameck-Vs- President of Namibia (supra) and Martin Shalli vs A.G. of Namibia (supra) Furthermore, as correctly submitted by the Applicant, the right to property sought by the 1st respondent is not absolute. The limitation of constitutional rights is provided under Article 24 of the Constitution.” 1. Preservation orders are temporary restrictions intended to protect the public interest and do not amount to confiscation of property. In Ethics & Anti-Corruption Commission v Johncele Insurance Brokers Ltd [2015] KEHC 5278 (KLR), the court observed that: “This court is alive to the ongoing issues in the society and that it ought to preserve any property or assets belonging to the society. This was expressed way back in the case of Shivabhai Nathabhai Patel -VS- Hathibai Patel [1995] EA 907 where the court held that: “In my opinion it is not only right that the court should attempt to preserve property which may be in issue, but it is the clear duty of the court to do so. If the plaintiff succeeds in the suit there might be a barren result; and that is the duty of the court to try to avoid”.” 1. This court is therefore not persuaded that the Respondents’ constitutional rights have been violated merely because the investigations remain ongoing. The Respondents’ constitutional objections do not outweigh the public interest in preserving assets reasonably suspected of constituting proceeds of corruption pending the completion of the investigations. The preservation orders are temporary, subject to judicial review, and capable of discharge once the statutory requirements no longer apply. **Whether the annexures filed by the EACC offended Rule 9 of the Oaths and Statutory Declarations Rules** 1. The 5th Respondent argued that the annexures filed by EACC offended Rule 9 of the Oaths and Statutory Declarations Rules. Even assuming there were minor procedural irregularities in the manner exhibits were presented, such irregularities would not, without demonstrated prejudice, justify setting aside preservation orders where substantive evidence exists. 2. Article 159 (2) (d) of the Constitution obliges courts to administer justice without undue regard to procedural technicalities. No prejudice sufficient to invalidate the proceedings has been demonstrated. 3. Accordingly, this court makes the following orders: - 4. **The Notice of Motion application dated 21st May 2026 is dismissed in its entirety.** 5. **The preservation orders issued on 13th November 2025 and extended on 11th May 2026 shall remain in force pending expiry of the statutory period or until further orders of the court.** 6. **The Ethics and Anti-Corruption Commission is directed to continue and conclude its investigations expeditiously and within the statutory period.** 7. **The Respondents shall remain at liberty to apply for appropriate relief should there be undue delay or should circumstances materially change.** 8. **Costs of the application shall abide the outcome of the substantive proceedings.** **Dated, Signed** and **Delivered** **Virtually** this **23rd** day of **July 2026** **R.E. OUGO** **JUDGE** **In the presence of: -** **Mr. Makori For the Applicant/ Respondent** **Mr. Omulloh For the 1st to 4th Defendants/ Applicant** **Mr. Omulama For the 5th Defendant** **Court Assistant – Adan/Minah**