https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9087

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI HIGH COURT** **HCCC NO. E290 OF 2025** **F & S SCIENTIFIC LIMITED...................................APPLICANT** **VS** **JOHNNY OCHIENG .........................................RESPONDENT** **RULING** 1. Before this court is the Notice of Motion dated 3rd of November 2025 brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 40 Rules 1, 2 & 4 and Order 51 of the Civil Procedure Rules and all other enabling provisions of the law. 2. The applicant herein has instituted a suit seeking to recover **Kshs.** **60,000,000/=** which he claims was allegedly embezzled by the defendant/respondent during his tenure of employment by the Plaintiff/Applicant. 3. The applicant in this application seeks for the following orders; 4. Spent 5. Spent 6. Spent 7. THAT pending the hearing and determination of this suit, this Honourable Court be pleased to issue a conservatory order freezing and preserving all monies, assets and properties traceable to and in the name of JOHNNY ISAAC OCHIENG of ID 29945449 to any and all banks within the Republic of Kenya acquired through the misappropriated sum of Kshs. 60,000,000/= including but not limited to: 8. The Defendant’s Mpesa account number 0728 625 821 9. Bank Account No. 1144184649 held with KCB Bank 10. Bank Account No. 0011940828002 held with Kingdom Bank 11. Bank Account No. 9397310016 held with NCBA 12. Bank Account No. 0011940828002 held with Kingdom Bank 13. DTB bank 14. Motor Vehicle Registration No. KDR990R 15. Bank Account No. 01607520946150 held with I&M Bank 16. That Safaricom PLC, KCB Bank, Kingdom Bank, NCBA Bank, DTB Bank, I&M Bank, and any other banks where the respondent hold accounts, be and are hereby directed to disclose and preserve all the funds and account details belonging to the Respondent up to the values of Kshs. 60,000,000/= pending the hearing and determination of this suit. 17. THAT the costs of the Application be provided for. 18. The application is supported by the annexed affidavit of JITESH JAYANTILAL SHAH who testified that the Defendant was employed as a Finance Assistant /Accounts Assistant by the Applicant. That the Applicant had granted the Respondent with user privileges on its Boya Payment Management System where he was authorized to make payments to facilitate team travel and expense purchasers. 19. That during the Respondent’s tenure, he exploited his access to the system by initiating multiple transfers of company funds to his personal MPESA number and bank accounts, which entries were falsely represented as legitimate business expenses. 20. That upon termination of the respondent’s employment, the Applicant conducted a forensic review of the platform and discovered the misappropriation which conduct amounts to theft, fraud and breach of fiduciary. 21. That there is apprehension that the respondent will withdraw, conceal or dissipate the said funds or assets thereby rendering the suit nugatory and causing irreparable damage to the Applicant. 22. This application came under certificate of urgency where this court directed the application to be served on the respondents to enable responses. An interim conservatory order was issued in terms of prayer (2) of the application on condition of the Applicant depositing in this Court the sum of Kshs. 1,000,000/=. 23. The Respondent’s counsel never regularized his appearance, no responses done neither did they appear on the subsequent mentions. This court having confirmed proper service was effected and adequate time was given to the respondent to file his responses, will deem this application unopposed. 24. The court will therefore proceed to determine the application with what is on record and analyse whether the Applicant has laid a proper basis for the orders sought. 25. Having carefully considered the notice of motion, supporting affidavit and annexures thereto, the main issue for determination is whether the Applicant has established sufficient grounds for the grant of a freezing and preservation order pending the hearing and determination of the suit. 26. At this stage the court is not called upon to make definitive findings on fraud as that issue will be one for determination upon full trial. 27. The court is satisfied that the applicant has established a prima facie case that raises serious and arguable allegations of fraud. The material presented particularly the forensic audit discloses a nexus between the disputed funds and the accounts sought to be preserved pending the trial. 28. The court is further persuaded that the monies allegedly held in the identified accounts constitute the very subject matter of the suit. If these funds are withdrawn or transferred before the suit is heard then it will render any subsequent proceedings nugatory. 29. The preservation of the alleged funds is therefore necessary to safeguard the integrity of the proceedings and to ensure that the court’s eventual determination of the suit is not rendered an academic exercise. 30. In the case of **Giella v Cassman & Co. Ltd. (1973) EA 358***, the courts held that an applicant seeking interlocutory relief must demonstrate a prima facie case with a probability of success and that the balance of convenience should favour the grant of the orders sought.* 31. While the present application concerns preservation of funds rather than a conventional injunction, the principles relating to a preservation of the subject matter remain relevant. 32. In the case of Mrao Ltd v. First American Bank of Kenya Ltd. & 2 others, (2003) KECA 175 (KLR), the court of Appeal defined a prima facie case as one which, on the material presented to the court, discloses an apparent right which has been infringed and which calls for an explanation or rebuttal from the opposite party. 33. The court is further guided by the principle that where the property or funds constitute the subject matter of a dispute, the Court has inherent jurisdiction under Sections 1A, 1B, and 3A of the Civil Procedure Act to preserve the same pending the determination of the suit before it. 34. In the circumstances therefore, I am satisfied that the Applicant has established sufficient grounds for the grant of preservation relief in the interest of justice. **Disposition:** 1. Accordingly, the Notice of Motion dated 3rd November 2025 is hereby allowed with the following orders allowing prayer 4 and 5 of the application; 1. THAT pending the hearing and determination of this suit, a conservatory order is hereby granted freezing and preserving all monies, assets and properties traceable to and in the name of JOHNNY ISAAC OCHIENG of ID 29945449 to any and all banks within the Republic of Kenya acquired through the misappropriated sum of Kshs. 60,000,000/= including but not limited to: 1. The Defendant’s Mpesa account number 0728 625 821 2. Bank Account No. 1144184649 held with KCB Bank 3. Bank Account No. 0011940828002 held with Kingdom Bank 4. Bank Account No. 9397310016 held with NCBA 5. Bank Account No. 0011940828002 held with Kingdom Bank 6. DTB bank 7. Motor Vehicle Registration No. KDR 990R 8. Bank Account No. 01607520946150 held with I&M Bank. 2. That Safaricom PLC, KCB Bank, Kingdom Bank, NCBA Bank, DTB Bank, I&M Bank, and any other banks where the respondent holds accounts, be and are hereby directed to disclose and preserve all the funds and account details belonging to the Respondent up to the values of Kshs. 60,000,000/= pending the hearing and determination of this suit. 3. The Applicant having complied with the Court’s order of 5/11/2025 requiring a deposit of Kshs. 1,000,000/= as security for the interim orders, the said sum shall remain deposited in this court, pending the hearing and determination of the suit or until further orders of the court. 4. THAT the costs of this Application shall be in the cause. It is so ordered. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 25th DAY OF JUNE 2026** **A.M. OKUTOYI** **JUDGE** In the presence of: **Ms. Muyoka for the Applicant** **Mr. Kavila and Mr. Oyaro (not yet on record) for the Respondent** **Ruth Mokeira: Court Assistant**