https://new.kenyalaw.org/akn/ke/judgment/kesc/2026/58

Johmat Distributors Ltd v Central Bank of Kenya (Application E040 of 2025) [2026] KESC 58 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KESC 58 (KLR) Republic of Kenya In the Supreme Court of Kenya Application E040 of 2025 PM Mwilu, DCJ & VP, SC Wanjala, I Lenaola, W Ouko & MA Warsame, SCJJ July 31, 2026 Between Johmat Distributors Limited Applicant and Central Bank of Kenya Respondent (Being an application for review of the Ruling of the Court of Appeal in Nairobi (Karanja,Gatembu & Nyamweya, JJ.A) dated 5th December 2025 in Civil Appeal No. E263 of 2021 declining to certify that the intended appeal raises issues of general public importance) Ruling Representation:Mr. Maina Njuguna for the Applicant (Maina Njuguna & Associates)Mr. Chepkwony h/b for Mr. Odera, SC for the Respondent (Oraro & Company Advocates) 1.Upon considering the Originating Motion dated 17th December 2025 by Johmat Distributors Limited ("the applicant") and filed on 11th March 2026 pursuant to Article 163(4)(b), 159(2)(a),(d)&(e) and 259(1) of the Constitution of Kenya, 2010, Rule 33(1) of the Supreme Court Rules, Section 15B of the Supreme Court Act,2011 and Sections 3(2), 3A & 3B of the Appellate Jurisdiction Act, seeking review of the Ruling of the Court of Appeal (Karanja, Gatembu & Nyamweya, JJ.A.) dated 5th December 2025 in Civil Appeal (Application) No. E263 of 2021, which declined to certify that the applicant’s intended appeal to the Supreme Court raises issues of general public importance; and 2.Cognisant of the pertinent facts which culminated in this Motion, to wit; that sometime in 2002, funds amounting to Kshs. 205,000,000/= were allegedly fraudulently obtained from the respondent through the manipulation of treasury bonds and bills, leading the respondent to institute criminal proceedings against several parties including the applicant. The applicant’s account came under suspicion as a conduit for the allegedly stolen funds and on 22nd July 2003, the respondent obtained an ex-parte mareva injunction against the applicant’s account in Civil Suit No. 204 of 2004 before the High Court, freezing the applicant’s funds amounting to Kshs. 14,000,000/= held in a fixed deposit account at Giro Commercial Bank (now I & M Bank Limited). The applicant was subsequently joined as a defendant in the civil proceedings pursuant to an order of the Court (Kasango J.) dated 12th June 2006; and 3.Cognisant that the High Court (Odunga J, as he then was) by a Judgment dated 18th December 2019 dismissed the respondent’s claim against the applicant as grounded on mere suspicion, and further dismissed the applicant’s counterclaim for general and aggravated damages on the ground that no evidence was led to prove that the respondent’s conduct was malicious or arrogant. In respect of the claim for loss of interest on the frozen deposit, the court held that apart from a bare assertion, no basis was set in the pleadings and no evidence was adduced to establish entitlement to interest, the applicable rate, or the quantum thereof. The parties thereafter entered into a consent dated 3rd March 2020 for the release of the attached sums to the applicant; and 4.Dissatisfied, the applicant lodged an appeal before the Court of Appeal, Civil Appeal No. E263 of 2021 premised on grounds inter alia, that the Learned Judge failed to exercise his discretion properly by refusing to award costs to applicant, that the Learned Judge erred by denying the applicant interest on the amount attached by failing to consider evidence that the said sum was in a fixed deposit account and that the Respondent had given an irrevocable undertaking dated 15th June 2006,vide its application dated 12th June 2006 to pay interest on the money attached in the event its case did not hold against the applicant. In a judgment dated 20th September 2024 the appellate court (Gatembu, Tuiyott & Ngenye, JJ.A), dismissed the appeal having found that the applicant had failed to provide the typed proceedings of the trial court under Rule 89 of the Court of Appeal Rules 2022, providing no evidence on which to evaluate the issue of interest, and that the trial court had correctly exercised its discretion in declining to award costs. The applicant thereafter sought certification from the Court of Appeal that its intended appeal to this Court raises matters of general public importance. In that regard, the Court of Appeal (Karanja, Gatembu & Nyamweya, JJ.A) by a ruling dated 5th December 2025 declined to grant certification; and 5.Upon considering the supporting affidavit of John Mathara Mwangi, the Director of the applicant, sworn on 17th December 2025, the applicant’s written submissions dated 23rd February 2026 and its supplementary submissions dated 1st April 2026, the gist of which is that: the refusal by the superior courts to enforce the respondent’s irrevocable undertaking despite the applicant’s exoneration from wrongdoing, raises questions about the conflict that mareva injunctions may portend with respect to the right to property under Articles 40(2)(a)(b) and the right to fair hearing under Article 50(1) of the Constitution; that from the onset, the applicant herein provided bank slips evidencing that the frozen funds were held in an interest earning fixed deposit account, yet the superior courts below erroneously concluded that its claim for interest was unsupported by evidence; that there is need for this Court to pronounce itself on the recourse for litigants whose resources have been seized by way of mareva injunctions by public bodies such as the respondent who are incorporated to safeguard public monetary interest and the effects of the discharge of such injunctions; that the intended appeal raises the question of whether courts must apply defined principles before denying costs to a successful party. Accordingly, the applicant urges this Court to overturn the Court of Appeal’s refusal to certify the intended appeal; and; 6.Taking into account the replying affidavit of Waweru Mathenge, General Counsel of the respondent, sworn on 26th March 2026, and the respondent’s written submissions of even date, wherein it is contended that the applicant has not demonstrated that the issues it raises transcend its particular circumstances or show any significant bearing on the public interest; that the matters complained of, being the award of interest on the frozen deposit, the enforcement of the undertaking, and the award of costs, are factual questions governed by settled law and specific to the parties; that on the question of costs, the trial court properly exercised its discretion in declining to award the same, given that both the respondent’s suit and the applicant’s counterclaim had been dismissed therefore rendering such an award of no practical consequence; that on the question of the undertaking, the applicant was not a party thereto, the undertaking having been given by the respondent in the context of its own application, and in any event the consent of 3rd March 2020 for the release of the principal sum superseded any claim arising thereunder and the applicant cannot now abandon that consent to assert a violation of the right to property; that the applicant failed to include typed proceedings before the Court of Appeal as required under Rule 89 of the Court of Appeal Rules, thereby hindering the appellate court from evaluating the trial court’s findings on the issue of interest; that the applicant had an opportunity to remedy this by filing a supplementary record of appeal but did not do so; and that the applicant cannot now convert that self-inflicted procedural lapse into a constitutional grievance of fair hearing and that several of the questions now placed before this Court were not raised in the certification application before the Court of Appeal, and are accordingly improperly introduced at this stage; and 7.Appreciating that the governing principles for the grant of certification under Article 163(4)(b) are those settled in Hermanus Phillipus Steyn Vs Giovanni Ruscone [2013] KESC 11 (KLR) and Malcolm Bell Vs Daniel Toroitich Arap Moi & another [2013] KESC 23 (KLR); and 8.Upon deliberations on the Motion and the rival arguments, We now opine as follows:i.We have considered the questions the applicant proposes to be certified as involving general public importance. We note that three of the questions now placed before this Court, including whether matters involving public institutions incorporated to safeguard public monetary interest automatically constitute matters of public interest; whether interest accruing on public monies held by the Central Bank of Kenya is applicable in injunctive matters; and whether public bodies are exempt from the execution of the provisions of Article 40 of the Constitution are questions that were never raised before the Court of Appeal and have been raised for the first time in this review application. As this Court held in Thika Coffee Mills Vs Rwama Farmers Co-operative Society Limited, [2020] KESC 17 (KLR), an application for review is not a vehicle for advancing arguments that have no footing in the determinations of the superior courts below; to do so would draw this Court into an exercise of original, rather than appellate, jurisdiction contemplated under Article 163(4)(b) of the Constitution. These three questions are accordingly not properly before us.ii.Having found the three aforementioned issues not to be properly before this Court, we now turn to the issues the applicant did raise, and pursue, before the Court of Appeal. These include the character of a mareva injunction and its implications for a defendant's constitutional rights guaranteed under Articles 40(2)(a)(b) and 50(1) of the Constitution; the principles governing a court’s refusal to enforce an undertaking and to award interest on funds frozen for fourteen (14) years, and the wider consequences such refusal may carry for litigation, legal practice and commercial contracts; and whether the discretion to award costs is unfettered, or is properly constrained by considerations such as the time taken to prosecute a matter and the expenses.iii.Having considered these issues against the settled principles, we are not persuaded that they meet the threshold for certification. First, the apprehension that the decisions by the superior courts below may be relied upon to disregard undertakings in future, is speculative and falls within what this Court in Hermanus Phillipus Steyn (supra) identified as a mere apprehension of miscarriage of justice. Second, the juridical character of a mareva injunction is a settled question in our jurisdiction. The applicant has also not pointed to any conflicting decisions of the superior courts, or any uncertainty in the law, warranting this Court’s intervention to clarify it for future application. Third, whether the trial court properly exercised its discretion in declining to award costs is a determination of fact and an exercise of discretion anchored in the specific circumstances of this dispute given that both the respondent’s suit and the applicant’s counterclaim were dismissed, and is not, by itself, a basis for certification. Fourth, framing a grievance in constitutional terms does not of itself elevate the issue to the threshold contemplated under 163(4)(b) of the Constitution. The questions raised under Articles 40(2)(a)(b) and 50(1) identify no unsettled point of constitutional principle bearing on the public at large. They are, in substance, complaints about how settled law was applied to the facts of this case, recast in constitutional language. As this Court affirmed in Malcolm Bell (supra), this Court’s appellate jurisdiction is not to be invoked merely to rectify errors in the application of settled law. In essence, dissatisfaction with how settled law was applied to particular facts cannot be elevated into a matter of general public importance by constitutional framing alone.iv.The upshot of the foregoing is that the applicant has not demonstrated that the issues raised transcend the circumstances of this dispute or have a significant bearing on the public interest. This Court therefore affirms the decision of the Court of Appeal declining to certify the intended appeal. The Originating Motion is also found to be without merit. 9.Consequently and for the reasons aforestated, we make the following Orders:i.The Originating Motion dated 17th December 2025 and filed on 11th March 2026 be and is hereby dismissed.ii.Costs are awarded to the Respondent.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.…………………………………………………………P.M. MWILUDEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT…………………………………………………………S.C. WANJALAJUSTICE OF THE SUPREME COURT…………………………………………………………I. LENAOLAJUSTICE OF THE SUPREME COURT ………………………………………………………… W. OUKOJUSTICE OF THE SUPREME COURT…………………………………………………………M. WARSAMEJUSTICE OF THE SUPREME COURT