[2016] KEHC 6144 (KLR)
The court found that the applicants had already refunded the sum of Kshs.70 million to the government before the order requiring such refund was made. The Office of the Director of Public Prosecution was aware of this fact and had sufficient time to verify it. Since the purpose of the freezing order had been...
Source-derived case information.
- Citation
- [2016] KEHC 6144 (KLR)
- Parties
- Applicant: Kochar Vishal; Applicant: Vulcan Lab Equipment Limited; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 155 of 2013
- Procedural Posture
- Criminal Appeal / Ruling on Post Appeal Application to Unfreeze Account
- Outcome
- application allowed
- Judges
- LK Kimaru
- Legal Topics
- Anti Corruption Proceedings, Asset Freezing Orders, Refund of Funds, Post Acquittal Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kochar Vishal
Applicant
Vulcan Lab Equipment Limited
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Post Appeal Application to Unfreeze Account
Legal Issues
- 1 Whether the applicants' bank account should remain frozen after acquittal and refund of the subject funds.
- 2 Whether the court's previous order for refund was made in error due to lack of information about prior repayment.
Ratio Decidendi
The court found that the applicants had already refunded the sum of Kshs.70 million to the government before the order requiring such refund was made. The Office of the Director of Public Prosecution was aware of this fact and had sufficient time to verify it. Since the purpose of the freezing order had been satisfied and there was no legal impediment to releasing the funds, the court allowed the application to unfreeze the account. The continued freezing of the account was therefore unjustified.
Court Disposition
application allowed
Orders
- The applicants' application dated 24th February 2016 is allowed in terms of Prayer 2.
- The order freezing Account No.0402703902 at Equatorial Commercial Bank is lifted.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 155 OF 2013
(An appeal arising out of the conviction and sentence of Hon. D.N. Mulekyo (Mrs.) – Ag. CM delivered on 28th August 2013 in Nairobi Anti-Corruption Case No.2 of 2010)
KOCHAR VISHAL…….……………………………………………….....................1ST APPLLICANT
VULCAN LAB EQUIPMENT LIMITED.......................................................................2ND APPLICANT
VERSUS
REPUBLIC………………..………………………………………………….……........RESPONDENT
RULING
The Applicants applied to have the order freezing their Account No.0402703902 at Equatorial Commercial Bank formerly Southern Credit Bank to be unfrozen. This court, on appeal, exonerated the Applicants from any criminal liability from the charges that were brought against them. They were ordered to refund the sum of Kshs.70 million together with the accrued interest. This order was given by the court on 4th November 2015. However, it later emerged that the sum had already been refunded to the government on 1st October 2013. In the circumstances therefore, the order made by this court that the Applicants refund the money together with the accrued interest was in fact made without taking into consideration that the money had already been refunded at the time the court delivered the judgment. The Applicants have annexed a copy of the Electronic Money Transfer in the affidavit in support of the application as proof of the said refund. Mrs. Murungi submitted on behalf of the State that they should be given more time to confirm if the money was indeed refunded as claimed by the Applicants. From the application, it was evident that the Office of Director of Public Prosecution was aware of the information as far back as 18th November 2015. If the Office was diligent enough, the confirmation would have been obtained by now. This court sees no impediment in granting the Applicants’ application to have the frozen account unfrozen. In the premises therefore, the Applicants’ application dated 24th February 2016 is allowed in terms of Prayer 2 thereof.
DATED AT NAIROBI THIS 9TH DAY OF MARCH 2016
L. KIMARU
JUDGE