https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9464

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL DIVISION** **CIVIL CASE NO. E150 OF 2025** **JW SEAGON AND COMPANY** **INSURANCE BROKERS (MAURITIUS)……………………..PLAINTIFF** **-VERSUS-** **NANCY WAMBUI MAGONDU T/A** **TIMELIFE INSURANCE AGENCY.…………….………... DEFENDANT** **RULING** 1. For determination are **two (2) motions,** one **dated 10/06/2025** filed by **JW Seagon and Company Insurance Brokers (Mauritius)** *(hereafter Plaintiff)* and the one **dated 30/10/2025** filed by **Nancy Wambui Magondu T/A Timelife Insurance Agency** *(hereafter the Defendant)*. For ease of reference the Court will hereafter refer to the motions as the Plaintiff’s and Defendant’s motion, respectively. 2. The Plaintiff’s motion **dated 10/06/2025** is brought pursuant to **Order 39 Rule 5** of the **Civil Procedure Rules (CPR)** and seeks *inter alia* the following orders-; 1. *Spent* 2. *Spent* 3. *Spent* 4. *Pending the hearing and determination of the suit the Honorable Court do issue an order requiring the Defendant to provide sufficient security for the sum of US$195,314.76 (or the Kenya Shilling equivalent thereof) being the minimum aggregate amount claimed by the Plaintiff in this suit within 30 days of the date of the order of the Court.* 5. *In the alternative to prayer (d) pending hearing and determination of this suit this Court do issue an order requiring the Defendant to have and maintain in her bank accounts an aggregate minimum balance of US$195,314.76 (or the Kenya Shilling equivalent thereof) and demonstrate evidence thereof to the satisfaction of this honorable Court within 30 days of the date of the order of the Court.* 6. *Pending the hearing and determination of the suit the Honorable Court do issue an order requiring the Defendant to disclose all information in relation to her bank accounts and assets to assist the Plaintiff in ascertaining the location of the Defendant’s assets.* 7. *Costs of this application be provided for.* 3. The Plaintiff’s motion is premised on grounds found and amplified in the supporting affidavit of even date and further affidavit dated 27/02/2026 deposed by **Shakeel Hassanali** who cites being the managing director of the Plaintiff thus conversant with the facts in issue and duly authorized to depose. 4. **The Defendant opposes the Plaintiff’s motion** by way of a replying affidavit dated 28/01/2026. 5. The Defendant’s motion **dated 30/10/2025** is brought pursuant to **Section 1A, 1B & 3A** of the **Civil Procedure Rules (CPA)**, **Section 6(1)** of the **Arbitration Act**, **Order 2 Rule 15** & **Order 51 Rule 1** of the **Civil Procedure Rules (CPR)** and seeks *inter alia* the following orders-; 1. *Spent* 2. *That the Honorable Court strike out the Plaintiff’s suit for being incompetent, misconceived and filed in contravention of valid and binding arbitration agreement under Clause 18.1 of the Parties Agreement and that the dispute be referred to International Arbitration in Mauritius under the Mauritian International Arbitration Act, 2008 in accordance with Clause 18.1 and governed by Clause 19 of the Agreement.* 3. *That in the alternative and without prejudice to prayer (a) the Honorable Court does stay further proceedings in this suit pending the determination of the dispute by the International Arbitration in Mauritius as agreed under Clause 18.1 and governed by Clause 19 of the Agreement.* 4. *That this Court declares that it lacks jurisdiction to hear and determine the dispute herein by virtue of the parties’ exclusive agreement to arbitrate disputes in Mauritius and the governing law being the laws of the Republic of Mauritius under Clause 19 of the Agreement.* 5. *An order that the Defendant’s costs of this application be paid by the Plaintiff.* 6. The Defendant’s motion is premised on grounds found and amplified in the supporting affidavit sworn on even date by **Nancy Wambui,** the Defendant,who cites being conversant with the facts of the matter therefore competent to depose. 7. The Plaintiff opposes the Defendant’s motion by way of a replying affidavit dated **12/11/2025.** 8. Directions were taken on disposal of the two (2) motions by way of written submissions. The parties duly complied. That said, upon review of the rival motions, the Court proposes to first dispose of the Defendant’s motion, as its implications, may materially affect the outcome of the Plaintiff’s motion. 9. To the foregoing end, having considered the rival affidavit material and submissions, the Court postulates that the issues for determination concern in the Defendants motion motion dated 30/10/2025; 10. *Whether this Court's jurisdiction is ousted by the parties' agreement to submit disputes as between them to international arbitration in Mauritius governed by Mauritian law, and if so, whether the appropriate order is to strike out the suit or stay the proceedings and or refer the parties to arbitration?* 11. *Whether this Court ought to order the Defendant to provide sufficient security for the sum of US$195,314.76 (or the Kenya Shilling equivalent thereof) being the minimum aggregate amount claimed by the Plaintiff in this suit within 30 days of the date of the order of the Court.* 12. *Whether the Plaintiff is entitled to an order compelling the Defendant to disclose her bank accounts and assets in aid of preserving the subject matter of the suit pending its determination?* 13. *Who ought* to bear the costs *of the respective motion(s)?* ***Whether this Court's jurisdiction is ousted by the parties' agreement to submit disputes between them to international arbitration in Mauritius governed by Mauritian law, and if so, whether the appropriate order is to strike out this suit or stay the proceedings and or refer the parties to arbitration?*** 1. At the outset, it necessitates stating that prior to the Defendant filing her application dated 30/10/2025, she had since moved to oust this Court of jurisdiction to entertain the Plaintiff’s suit via a preliminary **objection (PO**) **dated** **23/06/2025.** By way of a ruling rendered on 23/10/2025, this Court dismissed the said Preliminary Objection. Consequently, it would seem that the Defendant in filing the motion dated 30/10/2025, she took cue from this Court decisions wherein I rendered myself at **Paragraph 17** and **18** as follows-; *17.Whereas arbitration clauses and a jurisdiction exclusion clause have been the subject of replete litigation within the superior Courts, see Raytheon Aircraft Credit Corporation (supra), my understanding of the decision in Evergreen Marine (Singapore), PTE Limited & Gulf Badar Group (Kenya) Limited v Petra Development Services Limited [2016] KECA 260 (KLR), which was faced with a similar situation, is that where a party seeks to oust the Court of jurisdiction on the premise of a contractual clause a preliminary objection cannot sustain where its determination requires the Court to examine or interpret a contractual provision.* *18.As is, the Defendant objection does not strictly meet the test and or confines of a PO as exhorted in Mukisa Biscuits Manufacturing Company Ltd (supra) and Oraro v Mbaja (supra) given the factual aspect of the clauses relied on to oust or limit this Court’s jurisdiction. The appropriate approach would have been to file an application seeking the requisite reliefs in light of the clauses argued in the Defendant submissions.”* 1. It is on the premise of the above, that I find before me the Defendant’s application, that still seeks to oust or limit this Court’s jurisdiction to entertain the Plaintiff’s suit. 2. In presenting her motion, the Defendant cites among others, **Section 3A** of the **CPA**, which specifically reserves *“the inherent power of the court “to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court”*. This Court’s inherent powers was judiciously addressed by the Court of Appeal in **Rose Njoki Kingau & another v Shaba Trustees Limited & another [2010] KECA 87 (KLR)** and requires no restatement. 3. Alongside, the above she saliently relies on **Section 6(1)** of the **Arbitration Act** together with **Order 2 Rule 15** of the **CPR** in seeking to oust or limit this Court’s jurisdiction. 4. **Section 6** of the **Arbitration Act** provides that-; *(1) A Court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—* *(a) that the arbitration agreement is null and void, inoperative or incapable of being performed; or* *(b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.* *(2) Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined.* *(3) If the court declines to stay legal proceedings, any provision of the arbitration agreement to the effect that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings.* 1. **Order 2 Rule 15** of the **CPR** states that-; (1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— (a) it discloses no reasonable cause of action or defence in law; or *(b) it is scandalous, frivolous or vexatious; or* *(c) it may prejudice, embarrass or delay the fair trial of the action; or* *(d) it is otherwise an abuse of the process of the court,* *And may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.* *(2) No evidence shall be admissible on an application under sub rule (1)(a) but the application shall state concisely the grounds on which it is made.* *(3) So far as applicable this rule**shall apply to an originating summons and a petition.* 1. With the above provisions in reserve, the gist of the Defendant’s deposition in her affidavit sworn on 30/10/2025, is that, by dint of **Clause 18.1** and **19** of the Agreement dated 25/04/2022 ***(“Annexure “NM-1”)*** the parties hereto agreed to resolve all disputes through international arbitration seated in Mauritius under Mauritian law; consequently, this Court lacks jurisdiction to entertain the Plaintiff’s suit and thus should either strike out the suit or stay the proceedings in favour of arbitration. 2. The gist of the Plaintiff’s response is that the question of jurisdiction had since been litigated via the ruling rendered on 23/10/2025. Therefore, by filing the said motion, the Defendant is inviting this Court to re-litigating the jurisdictional issue by disguising an appeal through the said motion. 3. **Shakeel Hassanali** goes on to depose that the suit raises serious triable issues, founded on tort of conspiracy and conversions, which require full determination at trial. That the Arbitration **Clause 18.1** of the Agreement dated 25/04/2022 does not apply to the Plaintiff’s tortious claim, whereas the Defendant’s motion is procedurally defective for having failed to comply with the provisions of **Section 6(1)** of the **Arbitration Act.** He therefore concludes by stating that aside from the reliefs sought by the Defendant being contradictory, the motion is a delay tactic as striking out of the Plaintiff’s suit would unjustly deny it access to justice. 4. At the outset, as to whether the question of jurisdiction was resolved in the Court’s ruling rendered on 23/10/2025, in **JW Seagon and Company Insurance Brokers (Mauritius) v Magondu t/a Timelife Insurance Agency [2025] KEHC 15005 (KLR)?** I disagree with the Plaintiff’s preposition on the issue. The kernel of my decision on the backdrop of the Defendant’s dismissal of the PO was procedural rather than substantive. To the foregoing end, the Defendant’s motion is not a re-litigation on the issue of jurisdiction and or an attempt at this Court to sit on appeal over its own decision rendered on 23/10/2025. 5. As to the contradictory nature of the reliefs sought by the Defendant, I tend to agree with the Plaintiff on the same, in part. I note from the Defendant’s motion that she appears to implore upon the Court to strike out the Plaintiff’s suit for being incompetent, misconceived and an abuse of the Court process pursuant to **Order 2 Rule 15** of the **CPR.** 6. Yet again,what I garner to be the kernel of her application, as earlier identified in the ruling rendered on 23/10/2025, is that the Defendant seeks to oust this Court of jurisdiction to entertain the Plaintiff’s suit on the premise of anarbitration clause and a jurisdiction exclusion clause in the Agreement dated 25/04/2022. To that, the relevant provisions to the instant matter would be **Section 3A** of the **CPA** as read with **Section 6(1)** of the **Arbitration Act.** 7. That said, to contextualize the Defendant’s disputation, the Court must revisit **Clause 18.1** and **19** of the Agreement dated 25/04/2022 ***(“Annexure “NM-1”)***, as evinced by the Defendant, which provides that-; *“18. Dispute Resolution* *18.1. Any dispute, controversy or claim arising out of or relating to this agreement or the breach, termination or invalidity thereof, or relating to the company, shall be settled by international arbitration under the Mauritian International Arbitration Act, 2008 (referred to as the Act)* *18.2 The provisions of the First Schedule to the Act shall apply to the arbitration.* *19. Jurisdiction* *The validity and interpretation of this agreement will be governed by the laws of the Republic of Mauritius.”* 1. At the risk of repetition, of which I must, the Defendant’s jurisdictional challenge appears to be two (2) pronged. Firstly, that the dispute in question ought to be determined by way of arbitration and; secondly, that the Court lacks the requisite jurisdiction to adjudicate over the matter, given the choice of law in the agreement. I propose to first address the issue of jurisdiction/choice of law. 2. This Court has held time without number that jurisdiction is a preliminary question that ought to be determined *in limine*, as exhorted by **Nyarangi. JA** (as he then was) in the *locus classicus* case of **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1**. 3. That said, concerning the jurisdiction exclusion clause in the agreements *between disputing parties, t he Court of Appeal in Raytheon Aircraft Credit Corporation & another v Air Al-Faraj Limited [2005] KECA 312 (KLR) had this to say-;* *“The general rule is that where parties have bound themselves by an exclusive jurisdiction clause effect should ordinarily be given to that obligation unless the party suing in the non-contractual forum discharges the burden cast on him of showing strong reasons for suing in that forum see decisions in Donohue v Armo Inc. [2002] 4 LRC 478, H.L.; The Eleptheria [1969] 2 All ER 641, United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] KLR 898.* 1. Nevertheless, concerning the practical principle emanating from the said decisions where a party seeks to challenge the Court’s jurisdiction based on an exclusive foreign jurisdiction clause or choice of law, such as **Clause 19** in the Agreement dated 25/04/2022, the Court noted that -; *“There are no rules of the court prescribing the procedure for challenging the jurisdiction of the High Court by a foreign defendant who has been sued in this country in breach of contractual forum selection and the exclusive jurisdiction clause. The procedure suggested by the predecessor of the court in Prabhadas (N) & Co. v Standard Bank [1968] EA 679 at page 684 paragraphs C – E is to enter a conditional appearance and then move the court for setting aside the process. In United India Insurance Co. Ltd (supra), the defendants entered appearance under protest and moved the court for orders to stay proceedings. In Fonville case (supra) the High Court said that the filing of a defence under protest, the filing of an application for stay of proceedings or striking out the proceeding and the raising of a preliminary objection to the suit before trial are lawful means of challenging the jurisdiction of the court (see page 78 paragraphs I – j). In this case, the appellant had pleaded in the defence that the court did not have jurisdiction in view of the exclusive jurisdiction clause and raised a preliminary objection to the suit on account of jurisdiction at a very early stage in the proceedings.* *I would reiterate what this Court said in the application for stay of proceedings (supra), that the High Court had jurisdiction to hear arguments and rule on the point of jurisdiction.* *However, the procedures to be followed in this important area of litigation should no longer be left uncertain. I would recommend to the Rules Committee that appropriate comprehensive rules of procedure be urgently promulgated to facilitate the administration of justice.”* 1. Later, the same Court in Evergreen Marine (Singapore), PTE Limited & Gulf Badar Group (Kenya) Limited v Petra Development Services Limited [2016] KECA 260 (KLR) concerning the procedure towards challenging the Court’s jurisdiction based on an exclusive foreign jurisdiction clause, observed that-; *“This procedure seems to have gained sufficient traction in law to the point that it is safe to say that the point is settled. In Fonville v Kelly III and other (2002) 1 EA 71 it was reiterated that the entering of appearance or filing of a defence under protest, the filing of an application for stay of proceedings or for striking out the proceedings and the raising of a preliminary objection to the suit before trial are all legitimate means of challenging the jurisdiction of the court.* *It is a common factor that the appellants initially filed unconditional memorandum of appearance which was subsequently amended to send the message that it was filed under protest on account of the court’s lack of jurisdiction. By the time the amended memorandum was filed the horse had bolted and the court assumed jurisdiction. …….* *In any case, as correctly stated in the case of Kanti & Co. (supra), a memorandum of appearance is not a pleading capable of amendment within the meaning of section 2 of the Civil Procedure Act.” (sic)* 1. Therefore, my understanding of the decisions in **Raytheon Aircraft Credit Corporation** (supra) and **Evergreen Marine (Singapore), PTE Limited & Gulf Badar Group (Kenya) Limited** (supra), is that where a party seeks to challenge the Court’s jurisdiction based on an exclusive foreign jurisdiction clause he/she ought to enter a conditional appearance and promptly apply to set aside the process; or enter appearance under protest and promptly seek a stay of proceedings; or file a defence under protest while preserving the jurisdictional objection by filing at the earliest opportunity before trial the requisite application challenging jurisdiction. Nevertheless, with a rider that, where one enters appearance unconditionally and or without protest, the clause ceases to be available and is deemed waived. 2. Here, the Defendant first filed a Notice of Appointment of Advocates on 20/06/2025, thereafter filed a Memorandum of Appearance (Under Protest) on 30/10/2025 followed by Statement of Defence (Under Protest/Without Prejudice to Jurisdiction) on 09/12/2025. However, I do note that the Defendant upon filing the Notice of Appointment of Advocates on 20/06/2025 followed up the same with a Notice of Preliminary Objection three (3) days later, objecting to the Court’s jurisdiction to hear and determine this matter. 3. It is on the premise of the Defendant’s Preliminary Objection that this Court held in abeyance the Plaintiff application dated 10/06/2025, that is now presently for determination vide the instant ruling. 4. That said, as earlier stated in this ruling, this Court dismissed the Defendant’s Preliminary Objection. And in my estimation, it would appear that on the premise of inadvertent and or unsolicited advice, that may have manifested in this Court’s ruling of 23/10/2025, prompted the Defendant to file the motion and Memorandum of Appearance (Under Protest) on 30/10/2025 followed by the Statement of Defence (Under Protest/Without Prejudice to Jurisdiction). 5. While it is clear from the Defendant’s conduct that from the very outset she was of the position that this Court is ousted of jurisdiction to entertain the Plaintiff’s suit, this Court is hamstrung by dint of the doctrine of *stare decisis* and procedural edicts emanating from the binding decisions in **Raytheon Aircraft Credit Corporation** (supra) and **Evergreen Marine (Singapore), PTE Limited & Gulf Badar Group (Kenya) Limited** (supra), with respect to the procedure towards challenging the Court’s jurisdiction based on an exclusive foreign jurisdiction clause. 6. The above decisions obligate a party, to, in the first instance, enter conditional appearance and promptly follow up the same with an application challenging jurisdiction of the Court and not a Preliminary Objection. However, it would be remiss if I do notmention that the Court in **Active Partners Group Limited & another v Hassan Zubeidi; Dubai Bank Kenya Limited (Il) & another (1st Interested Parties) [2019] KECA** 201 (KLR) accepted that an unconditional appearance contemporaneously filed with an application protesting jurisdiction of the Court on the premise of a jurisdiction exclusion clause, is acceptable. 7. In totality of the above, the position on the issue, as I gather, is that a promptly filed application-challenging jurisdiction is consequential to successfully asserting a jurisdiction exclusion clause. It necessitates that I mention, within the context of civil procedure parlance, and as may be understood alongside **Order 51 Rule 1** of the **CPR**, a preliminary objection does not constitute an application, as the Civil Procedure Rules expressly provides that “*all application to the Court shall be by motion*……” 8. Faced with a somewhat similar prospect, the late **Majanja, J**. in **Intrasoft International S A v Verve KO Limited [2020] KEHC 7322 (KLR) observed that;** *“16. In this case, the defendant, a company incorporated in Kenya was served with process in Kenya, filed an unconditional memorandum of appearance and protested the jurisdiction of the court by filing a notice of preliminary objection and a notice of motion to strike out the suit after it had entered unconditional appearance. In the words of the Court of Appeal in the Evergreen Marine Case (Supra), once the unconditional memorandum of appearance was filed, without lodging the objection to jurisdiction simultaneously, the horse had already bolted and the court had assumed jurisdiction.* *The memorandum of appearance was filed on 3rd September 2019 and the Notice of Preliminary Objection, thirteen days later, on 16th September 2019. The inevitable result is that on that basis, and the binding decisions of the Court of Appeal I have cited, the preliminary objection dated 13th September 2013 and the subsequent notice of motion dated 4th December 2019 must fail. They are dismissed with costs to the plaintiff.”* 1. Therefore, notwithstanding the Defendant’s earnest protest to this Court's jurisdiction, she promptly failed to comply with procedure prescribed by superior Court’s, to wit, she filed unconditional Notice of Appointment of Advocates on 20/06/2025 and subsequently, after four or so months filed the motion dated 30/10/2025. This in my opinion ought to be construed as the Defendant’s waiver of the jurisdiction exclusion clause in the agreement dated 25/04/2022. The delay having not been explained to invoke the court's discretion. 2. As to whether the dispute between the parties ought to be referred to arbitration, the procedure and practice seeking to oust a Court of jurisdiction to entertain proceedings before it pursuant to **Section 6(1)** of the **Arbitration Act,** has since long been settled in numerous superior courts decisions, among them; **Charles Njogu Lofty v Bedouin Enterprises Ltd [2005] KECA 336 (KLR), Naizsons (K) Ltd v China Road & Bridge [2001] eKLR and Mt. Kenya University v Step Up Holding (K) Ltd [2018] KECA 125 (KLR).** 3. However, recently, the Court in National Irrigation Authority formerly the **National Irrigation Board v Satom SA [2025] KECA 1472 (KLR**) elaborately addressed itself to the procedural aspects of Section 6(1) of the Arbitration Act wherein it observed in part that-; *“38..This provision must be construed in tandem with the interpretation made in Charles Njogu Lofty as tightening the time when a stay application must be made. This is also in line with the aspiration that a party insisting on the implementation of an arbitration agreement must do so at the earliest opportunity so that arbitration can be commenced without delay. It yields one answer: a party seeking to stay court proceedings which is subject of an arbitration agreement shall, in addition to satisfying matters set out in 6(1)(a) and (b), file the stay application not later than when the party enters appearance, and where no appearance is entered, not later than when the party otherwise acknowledges a claim against which the stay of proceedings is sought. We do not agree with the position posited by NIA that, having filed an appearance, it could still properly mount the stay application simply because it had not filed a defence or taken any other step in the proceedings. Perhaps, for good measure, we need to add this. The phrase “otherwise acknowledges a claim against which the stay of proceedings is sought” in the provision does not mean when the party concedes or admits the claim. It simply means when the party first formally signals to court, by other means than entering appearance, that it is aware that the claim has been filed before the court. Say by the party’s advocate filing a notice of appointment or the party or its advocate filing a notice protesting jurisdiction. In which event the stay application should be filed simultaneously with the notice of appointment or the protest notice, whichever the case.* *39………..* *40.In closing on this aspect, we fully identify with the position taken consistently by this Court that Article 159 (2) of the Constitution is not a panacea for the non-observance of the requirement of section 6(1). The provision is well thought out to support the objective that arbitration ought to be a speedy and efficient dispute resolution mechanism. We echo the words of this Court in Eunice Soko Mlagui when it held that: “With respect, the conditions set out in section 6(1) are anything but mere procedural technicalities that may be waived courtesy of the overriding objective.”* *41.The lateness in NIA filing the stay application was enough reason for the trial court to decline it. By not filing an application for stay of legal proceedings within the prescribed time, NIA disentitled itself of recourse to arbitration. [emphasis mine]* 1. The events leading up to the Defendant’s motion dated 30/10/2025 have been captured elsewhere in this ruling. I need not delve whether the motion is compliant with the procedural dicta of **Section 6(1)** of the **Arbitration Act.** Nevertheless, it is apparent from the proceedings before this Court that the Defendantopted not to and or failed to file a reference to arbitration upon being served with the Plaintiff’s pleadings but instead filed a Notice of Appointment and later a Preliminary Objection. The Defendant’s motion, memorandum of appearance and defence, all under protest, were only filed after this Court’s ruling on 23/10/2025. 2. In light of the rationale emanating from the decision in **National Irrigation Authority** (supra) such delay would be considered inordinate in the circumstance while contemporaneously “.......*disentitling the Defendant the recourse of arbitration”*. 3. **Consequently, on the Defendant’s motion dated 30/10/2025, it is this Court’s determination that the motion lacks merits and is accordingly dismissed.** As to the question of costs, I will address the same later in this ruling. ***Whether this Court ought to order the Defendant to provide sufficient security for the sum of US$195,314.76 (or the Kenya Shilling equivalent thereof) being the minimum aggregate amount claimed by the Plaintiff in this suit within 30 days of the date of the order of the Court; AND*** ***whether the Plaintiff is entitled to an order compelling the Defendant to disclose her bank accounts and assets in aid of preserving the subject matter of the suit pending its determination?*** 1. Here, I propose to simultaneously address the twin issues stemming from the Plaintiff’s motion **dated 10/06/2025.** In urging the motion, the Plaintiff relies on **Order 39 Rule 5** of the **CPR** which provides that-; *(1) Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him—* *(a) is about to dispose of the whole or any part of his property;* *(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.* *(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.* *(3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.* 1. With the above provision in mind, what I garner from Shakeel Hassanali deposition vide his affidavit in support of the Plaintiff’s motion is that the latter had appointed the Defendant as an insurance intermediary under an agreement dated 25/04/2022, pursuant to which the Defendant was entitled to commissions only for insurance business it procured on the Plaintiff's behalf. 2. He goes on to state that the Plaintiff subsequently discovered the Defendant’s alleged collusion with the Plaintiff's former employee, one Ms. **Anouska Puntaya**, fraudulently obtained commissions of which she was not entitled. By falsely attributing business, inflating commission claims, claiming commissions for clients not sourced by the Defendant, and receiving duplicate payments. Following a reconciliation of the Defendant's account, the Plaintiff alleges that the Defendant unlawfully received US$195,314.76, which she failed to refund despite a formal demand. 3. He goes on to depose that the Defendant operates as a sole proprietorship; that it is unaware of any assets owned by the Defendant in Kenya. He expresses the belief that the Defendant's refusal to refund the money and the nature of her business creates a real risk that assets may be concealed or dissipated, rendering enforcement of any future judgment ineffective. He concludes by stating that the Plaintiff has a good and arguable claim and unless the orders sought in the motion are granted, the Plaintiff is likely to suffer prejudice by being left without an effective remedy. 4. The Defendant via her response admits the existence of an agreement dated 25/04/2022 though maintains that all commissions paid to her were invoiced, processed, approved, and voluntarily paid through the Plaintiff's internal systems without objection at the material time. She categorically denies all allegations of fraud, conspiracy, misappropriation, conversion, owing the Plaintiff US$195,314.76 and or dissipation of assets however asserts that the Plaintiff has failed to establish a *prima facie* case or satisfy the threshold for the grant of the interlocutory and preservatory orders sought. She urges the Court to dismiss the Plaintiff’s motion with costs. 5. By the motion under review, the Plaintiff seeks an order of attachment before judgment by way of security in the sum of US$195,314.76 (or the Kenya Shilling equivalent thereof), and in the alternative a freezing order requiring the Defendant to have and maintain in her bank accounts an aggregate minimum balance of US$195,314.76 (or the Kenya Shilling equivalent thereof), prior to determination of Plaintiff’s suit. 6. Concerning attachment before judgment and or a freezing order, the same is codified in **Order 39** of the **CPR**. Relevant to the nature of the order(s) as sought by the Plaintiff is **Order 39** **Rule 1, 2 & 5** of the **CPR**. The Court of Appeal in the case of **Kuria Kanyoko t/a Amigos Bar and Restaurant v. Francis Kinuthia Nderu & Others [1985] 2 KAR 126 p. 126** had the following to say on the Order 38 Rule 5 of the previous CPR (equivalent of current **Order 39 rule 5 and 6**) that: *“The power to attach before judgment must not be exercised lightly and only upon clear proof of the mischief aimed at by Order 38, rule 5 namely that the Defendant was about to dispose of his property or to remove it from the jurisdiction with the intent to obstruct or delay any decree that may be passed against him.”* 1. This Court equally associates itself with the reasoning of **Gikonyo. J** in **Kanduyi Holdings Limited v Balm Kenya Foundation & Another [2013] KEHC 3044 (KLR),** to the effect that-; *“The application before me is founded on Order 39 rules 5 and 6 of the CPR. Our Order 39 rule 5 and 6 could be said and is a statutory codification of an interlocutory relief commonly known as Mareva Injunction or freezing order in the UK. The principle was laid down in the case of Mareva Compania Niera SA v International Bulcarriers Ltd [1975] 2 Lloyd’s Rep 509.* *[22] Accordingly, Order 39 Rules 5 and 6 of the CPR should operate within known dimensions of law drawing from the above case and other judicial precedents on the subject. Order 39 rule 5 and 6 of the CPR is not to be used: 1) to pressure a defendant; or 2) as a type of asset stripping (forfeiture); or 3) as a conferment of some proprietary rights on the Plaintiff upon the assets of the Defendant. The purposes of any order that should be issued under Order 39 Rules 5 and 6 of the CPR is to prevent the Defendants or would be judgment-debtor from dissipating his assets as to have the effect of obstructing or delaying the execution of any decree that may be passed against him.* *[23] Given the scope and tenor of the relief under Order 39 Rule 5 and 6 of the CPR, the Plaintiff has the onus of proving that the Defendants:* *a) Is about to dispose of the whole or any part of his property; or* *b) Is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court.* *Courts have held that the Plaintiff must establish a prima facie case on the above elements within the thresholds for grant of interlocutory injunction in Giella v. Cassman Brown……..” (sic)* 1. I further associate myself with the rendition by **Kasango, J**. in **Shiva Enterprises Limited v Jivaykumar Tulsidas Patel T/A Hytech Investment [2006] KEHC 257 (KLR)** where the following was stated: *“That a party would need to meet that high standard of proof before a party is ordered to supply security for the amount claimed. The jurisdiction that the plaintiff invoked has to be appropriately exercised to ensure that a party meets the aforestated high standards. It ought to always be remembered that the purpose of that jurisdiction is to secure the plaintiff against the defendant’s act aimed at defeating judgment that may be entered. It is however not the intention of that jurisdiction to harass or to punish the defendant before judgment is entered against him.”* 1. Adjunct to succeeding on a quest for attachment before judgment or a freezing order is demonstration of a prima facie case. As to the nature of a prima facie cause the same was settled since Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR). 2. Having set out the above, I need not restate the thrust of the Plaintiff’s arguments. Nevertheless, applying my mind to the above quoted decisions, firstly from the Plaintiff’s pleadings and affidavit material, I note that the Defendant is described as a Kenyan National trading under the name Timelife Insurance Agency. It is equally not in dispute that the parties hereto executed an agreement dated 25/04/2022, that in part encapsulates the issues in controversy before this Court. 3. Secondly, a perfunctory review of the exhibits relied on in the Plaintiff’s affidavit in support (Annexure SH-1) other than for the agreement between the parties, various purported statement of accounts prepared by the Defendant and addressed to one Ms. Puntaya Anuouska, various email correspondences, an anonymous schedule of purported payments and a demand letter dated 02/04/2025, the Plaintiff has not evinced any prima facie material that the Defendant is about to dissipate funds held at KCB Bank Kenya Limited A/C No. 1329422236 & 1333111665 in the name of Timelife Insurance Agency and A/C No. 1115508245 in the name of Nancy Magondu; or that the Defendant is about to abscond and or remove funds held in said accounts from with the local limits or the jurisdiction of this Court. 4. Thirdly, my understanding of the rendition in Shiva Enterprises Limited (supra), I acceded and concurred with, is that, the purpose of security and by extension a freezing order would require compelling evidence of an intention to defeat a prospective judgment of the Court whereas such an order must be exercised protectively, and not punitively. Perceptibly, given my earlier sentiments, the Plaintiff has failed to validate reasons why this Court ought to grant the orders sought, to wit, I concur with the Defendant’s supposition on the issue. 5. Therefore, without demonstration of the aforestated, it would be difficult to conclude that a prima facie case has been established to warrant attachment before judgment or an order directing the Defendant to maintain an aggregate minimum of US$195,314.76 (or the Kenya Shilling equivalent thereof), in her accounts. ***Whether the Plaintiff is entitled to an order compelling the Defendant to disclose her bank accounts and assets in aid of preserving the subject matter of the suit pending its determination?*** 1. On the above, I will not belabor much on the same given this Court’s earlier finding. Nevertheless, as at presentation of the motion dated 10/06/2025, it would appear the Plaintiff was already alive to accounts owned and operated by the Defendant at KCB Bank Kenya Limited. 2. Again, the Defendant is a Kenyan whereas the Plaintiff did not demonstrate that any funds held in the said accounts were at risk of dissipation either by wasting, disposal towards other activity and or would be removed from this Court’s jurisdiction. 3. It is apparent that a judgment is yet to be rendered in favour of the Plaintiff in the matter. And without a prima facie demonstration that the Defendants actions as purportedly assailed would serve to render the prospective judgment of this Court in favour of the Plaintiff ineffective or nugatory, I reasonably believe that granting of the above sought order would be inequitable if not prejudicial to the Defendants. In the end, the Plaintiff’s motion cannot succeed and is likewise dismissed. ***Final Disposition*** 1. **Having appropriately addressed myself to the two motions, the resultant outcome is that both motions are accordingly dismissed.** **Finally, on costs, applying my mind to the above finding and the provision of Section 27 of the Civil Procedure Act, I direct that each party bears their own costs of their respective motions.** **Orders Accordingly.** **Delivered Dated and Signed at Nairobi this 25th Day of June 2026.** **……………………….** **JANET MULWA.** **JUDGE**