[2018] KEHC 2521 (KLR)
The court found that the 5th Respondent/Applicant failed to provide a satisfactory explanation for the funds received from Migori County Government and that the application did not present any new evidence or sufficient cause to warrant setting aside the preservation orders. The preservation orders were due to lapse...
Source-derived case information.
- Citation
- [2018] KEHC 2521 (KLR)
- Parties
- Applicant: Ethics & Anti Corruption Commission; Respondent: Jared Peter Odoyo Oluoch Kwaga; Respondent: Ernest Omondi Owino; Respondent: Joram Opala Otieno; Respondent: Patroba Ochanda Otieno; Respondent: Janto Construction Company Ltd; Respondent: Marowa Stores Ltd; Respondent: Mbingo Enterprises Ltd; Respondent: Hellen Adhiambo Odie; Respondent: Beatrice Akinyi Ogutu; Respondent: Kennedy Odhiambo Akello; Respondent: Kennedy Onyango Adongo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 79 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Release Preserved Funds
- Outcome
- application dismissed
- Legal Topics
- Asset Preservation Orders, Anti Corruption Investigations, Release of Frozen Funds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ethics & Anti Corruption Commission
Applicant
Jared Peter Odoyo Oluoch Kwaga
Respondent
Ernest Omondi Owino
Respondent
Joram Opala Otieno
Respondent
Patroba Ochanda Otieno
Respondent
Janto Construction Company Ltd
Respondent
Marowa Stores Ltd
Respondent
Mbingo Enterprises Ltd
Respondent
Hellen Adhiambo Odie
Respondent
Beatrice Akinyi Ogutu
Respondent
Kennedy Odhiambo Akello
Respondent
Kennedy Onyango Adongo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Release Preserved Funds
Legal Issues
- 1 Whether the court should set aside the preservation orders and release Kshs 16,831,152.20 to the 5th Respondent/Applicant.
- 2 Whether the 5th Respondent/Applicant has provided a satisfactory explanation for the funds in its account.
- 3 Whether there is justification to interfere with the existing preservation orders before their expiry.
Ratio Decidendi
The court found that the 5th Respondent/Applicant failed to provide a satisfactory explanation for the funds received from Migori County Government and that the application did not present any new evidence or sufficient cause to warrant setting aside the preservation orders. The preservation orders were due to lapse in three weeks, and the court saw no reason to interfere with the status quo or isolate the 5th Respondent/Applicant's case from the ongoing investigations. Accordingly, the application for release of the funds was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application by the 5th Respondent/Applicant for release of Kshs 16,831,152.20 is dismissed.
- The preservation orders issued on 21st June 2018 remain in force until their expiry.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION
MISCELLANEOUS APPLICATION NO. 79 OF 2017
ETHICS & ANTI CORRUPTION COMMISSION.....................APPLICANT
VERSUS
JARED PETER ODOYO OLUOCH KWAGA..................1ST RESPONDENT
ERNEST OMONDI OWINO..............................................2ND RESPONDENT
JORAM OPALA OTIENO.................................................3RD RESPONDENT
PATROBA OCHANDA OTIENO.....................................4TH RESPONDENT
JANTO CONSTRUCTION
COMPANY LTD.........................................5TH RESPONDENT/APPLICANT
MAROWA STORES LTD..................................................6TH RESPONDENT
MBINGO ENTERPRISES LTD........................................7TH RESPONDENT
HELLEN ADHIAMBO ODIE...........................................8TH RESPONDENT
BEATRICE AKINYI OGUTU...........................................9TH RESPONDENT
KENNEDY ODHIAMBO AKELLO...............................10TH RESPONDENT
KENNEDY ONYANGO ADONGO.................................11TH RESPONDENT
RULING
1 The application herein has been filed by the 5th respondent Janto Construction Company Ltd. The said application is dated 5th July 2017. The prayer is for the release of Kshs 16,831,152/20 deposited into its account No 1132259770 KCB Branch Migori.
2 The application is supported by the grounds on its face plus the supporting affidavit of Ernest Omondi Owino a director of the 5th Respondent. He avers that the said deposit the subject of this application is not related to the matters under investigation. He further states that the 5th Respondent has completed the work it was contracted to do and the said payment received is lawful.
3 In his submissions Mr. Obach for the 5th Respondent/Applicant contended that the payment was in respect of two contracts by tenders No MC/95/2017-2018 & MC/138/2017-2018 for maintenance of Nyabisawa road and another. That the contracts were issued, performed and certificate issue.
4 He went on to submit that the freezing of the account had made it impossible for the company to meet its obligations.
5 The application was opposed by the Applicant/Respondent relying on the replying affidavit of Simon Chepka. M/s Kibogi for the Applicant/Respondent submitted that the 5th Respondent/Applicant was under investigation and there was reasonable suspicion on the transaction between the 5th Respondent and the Migori County Government.
6 She also argued that the preservation orders were about to lapse and recovery suits would soon be filed. The replying affidavit explains the steps taken by the Applicant in respect to this claim. At para 13 the deponent has explained that the 5th Respondent/Applicant when given Notice to account for the said money, failed to give a satisfactory explanation to the same. Counsel submitted that the 5th Respondent/Applicant still trades and is therefore not under receivership.
7 Having considered the application plus the affidavits and having heard counsel in their submissions, all I have to determine is whether or not to set aside the orders of 21st June 2018.
8 In the said orders, this court extended the preservation orders on all the assets in this Originating Motion by four (4) months. The four (4) months lapse on 28th October 2018.
9 The Applicant/Respondent has vide the replying affidavit given details of the amounts of money paid into the 5th Respondents/Applicant’s account plus, what has been and what has not been accounted for. I would not want to get into this at this point since it is evidence gathered during investigation.
10 The Applicant/respondent’s main submission is that the 5th Respondent/Applicant is under investigation and has failed to offer a satisfactory explanation for the deposits it received from the Migori County government.
11 Owing to the fact that the Orders of 21st June 2018 gave the Applicant/Respondent more time to finalize its investigations against all the Respondents, the Applicant herein included, I find it unreasonable to isolate its case and order for release of the stated amount.
12 I have also considered the fact that the preservation Orders are lapsing in three weeks’ time. This application is like a review of the said Orders and I find no reason to make me interfere with the current status as nothing new has been presented to this court. The application has no merits and is dismissed.
Orders accordingly.
Delivered, signed and dated this 9th day of October 2018 in open court at Nairobi.
........................................
HEDWIG I. ONG’UDI
JUDGE