https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12520

Mushus International Ltd v Office of the Director of Public Prosecutions & 2 others (Criminal Miscellaneous Application E050 of 2026) [2026] KEHC 12520 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12520 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Miscellaneous Application E050 of 2026 WM Kagendo., J July 31, 2026 Between Mushus International Ltd Applicant and Office of the Director of Public Prosecutions 1st Respondent I & M Bank Limited & another & another & another 2nd Respondent Ruling Introduction 1.Before this Court is a Notice of Motion dated 25th May 2026 by the Applicant, Mushus International (K) Limited, seeking revision of the orders issued by the Chief Magistrate's Court at Mombasa on 23rd April 2026 in Mombasa Criminal Miscellaneous Application No. E332 of 2026. 2.The application is brought pursuant to Articles 23, 40, 47, 50, 159 and 165(6) and (7) of the Constitution, sections 118, 121, 180, 362 and 364 of the Criminal Procedure Code and all other enabling provisions of the law. 3.Prayer One of the application sought interim relief pending the hearing and determination of the Motion. That prayer was granted at the ex parte stage and is therefore spent. The Court is now concerned with the substantive prayers challenging the orders made by the subordinate court. 4.The impugned orders arose from an ex parte application presented by the Directorate of Criminal Investigations seeking authority to access and inspect the Applicant's bank account held at I & M Bank PLC in the course of criminal investigations. In addition to granting access to the banking records, the subordinate court ordered the suspension of all debit and credit transactions in the account for a period of thirty (30) days. 5.The Applicant contends that whereas it does not oppose lawful investigations or the inspection of its banking records, the suspension of all transactions in its operational account has unjustifiably crippled its business and constitutes a disproportionate interference with its constitutional rights. 6.The Respondent maintains that the orders were lawfully obtained upon disclosure of sufficient grounds and were necessary to facilitate ongoing investigations. The Applicant's Case 7.The application is supported by the affidavit of Burhanuddin Yusuf Mustafa, a Director of the Applicant company. 8.The Applicant depones that it is a duly incorporated company carrying on legitimate business within the Republic of Kenya and that the subject account is its principal operational account through which it receives payments, pays employees, settles suppliers' invoices and meets its statutory obligations. 9.It is averred that although the Respondent obtained ex parte orders authorising access to the account, the additional order suspending all transactions has had devastating consequences on the company's operations. The Applicant states that it has been unable to transact business, honour contractual obligations or meet its financial commitments, thereby exposing it to financial loss and reputational damage. 10.The Applicant further contends that it has at all material times been willing to cooperate with the Respondent and has no objection to the inspection or production of its banking records for purposes of the investigations. Its grievance is confined to the order suspending the operation of its account, which it considers excessive, unnecessary and unsupported by any demonstrated investigative need. 11.It is the Applicant's case that while the law permits courts to issue ex parte investigative orders, such orders must remain proportionate to the purpose for which they are granted and must not impose unnecessary restrictions upon constitutionally protected rights. 12.The Applicant therefore urges this Court to exercise its revisionary jurisdiction by setting aside the order suspending operations in the account while allowing the Respondent to continue with its investigations in accordance with the law. The Respondent's Case 13.The application is opposed through the replying affidavit sworn by No. 113635 Police Constable Mairura Okari, the investigating officer. 14.The Respondent depones that investigations were commenced following information received regarding suspected criminal activities and that preliminary investigations established sufficient grounds to seek judicial authority to access the Applicant's banking records. 15.The investigating officer states that the application before the subordinate court was brought pursuant to sections 118 and 121 of the Criminal Procedure Code and section 180 of the Evidence Act, and that the learned Chief Magistrate was satisfied that probable cause had been established before granting the impugned orders. 16.It is further deponed that the orders were intended to preserve the integrity of the investigations and facilitate the tracing and analysis of financial transactions relevant to the inquiry. 17.The Respondent therefore urges the Court to uphold the orders issued by the subordinate court, contending that they were lawfully obtained and remain necessary for purposes of the ongoing investigations. Issues for Determination 18.Having considered the application, the affidavits on record and the rival submissions of counsel, the following issues arise for determination—a.Whether this Court has jurisdiction to revise the orders made by the subordinate court.b.Whether the learned Chief Magistrate properly exercised jurisdiction in issuing the impugned ex parte orders.c.Whether the order suspending all transactions in the Applicant's account for thirty (30) days was reasonable, necessary and proportionate to the legitimate objective of the investigations.d.Whether the Applicant has established sufficient grounds for this Court to interfere with Order No. 2 while preserving the investigative process. Applicable Principles 19.The jurisdiction of this Court is derived from sections 362 and 364 of the Criminal Procedure Code and Articles 165(6) and (7) of the Constitution. Under those provisions, the High Court is mandated to satisfy itself as to the correctness, legality, propriety and regularity of proceedings beforesubordinate courts. 20.The Court's revisionary jurisdiction is neither appellate nor supervisory in the ordinary sense of substituting its discretion for that of the subordinate court. Rather, it exists to ensure that judicial orders remain lawful, proportionate and consistent with the Constitution and the ends of justice. 21.It is against those principles that the impugned orders must be examined. Analysis Whether the Learned Chief Magistrate Properly Exercised Jurisdiction 22.The Applicant invokes this Court's revisionary jurisdiction under sections 362 and 364 of the Criminal Procedure Code. Under section 362, the High Court is empowered to call for and examine the record of any criminal proceedings before a subordinate court for the purpose of satisfying itself as to the correctness, legality, propriety or regularity of any finding, sentence or order recorded or passed. 23.The jurisdiction conferred under section 364 is broad and enables the High Court to alter, vary or reverse an order where the interests of justice so require. It is now settled that the revisionary jurisdiction is not confined to correcting jurisdictional errors alone. It also extends to ensuring that judicial discretion is exercised judiciously, proportionately and consistently with the Constitution. 24.The impugned orders were issued pursuant to sections 118 and 121 of the Criminal Procedure Code together with section 180 of the Evidence Act. 25.Section 118 of the Criminal Procedure Code authorises the issuance of search warrants where information on oath establishes reasonable grounds to believe that evidence relating to the commission of an offence may be found. Section 121 provides for the custody and preservation of property seized pursuant to such warrants, while section 180 of the Evidence Act empowers a court to authorise inspection of bankers' books where such inspection is necessary for purposes of an investigation. 26.These provisions are intended to facilitate lawful criminal investigations while ensuring that access to private banking information is subjected to prior judicial scrutiny. They are investigative provisions and not punitive measures. 27.The Court has carefully perused the record of the subordinate court together with the affidavit sworn by Police Constable Mairura Okari in support of the ex parte application. 28.The affidavit sets out the background to the investigations and the basis upon which the investigating officer sought access to the Applicant's banking records. The deponent expressly states that investigations had disclosed probable cause necessitating examination of the Applicant's bank statements and banking records. 29.In my view, those averments disclosed sufficient material upon which the learned Chief Magistrate could properly exercise the jurisdiction conferred by sections 118 and 121 of the Criminal Procedure Code and section 180 of the Evidence Act. The threshold at that stage was not proof of criminal conduct but the existence of reasonable grounds to facilitate investigations. 30.Consequently, I am unable to fault the learned Chief Magistrate for granting the orders authorising the inspection and production of the Applicant's banking records. Those orders were lawfully issued upon material placed before the Court and served a legitimate investigative purpose. 31.That finding, however, does not conclude the matter. The Court's revisionary jurisdiction is not limited to determining whether the subordinate court possessed jurisdiction. It also extends to considering whether the orders made continue to be proper, reasonable and proportionate in light of the circumstances of the case. Whether Order No. 2 Was Excessive and Disproportionate 32.Order No. 2 of the subordinate court did more than authorise access to banking records. It suspended all debit and credit transactions in the Applicant's account for a period of NINETY(90) days. 33.The Applicant does not challenge the Respondent's statutory mandate to investigate crime. Indeed, the Applicant expressly states that it is prepared to cooperate fully with the investigations and has no objection to the Respondent obtaining and examining its banking records. 34.The real complaint is directed at the blanket suspension of all transactions in the account. According to the Applicant, the account is its principal operational account through which salaries are paid, suppliers are settled and ordinary business transactions are conducted. The continued suspension has effectively brought its commercial operations to a standstill. 35.The Respondent submits that the suspension was necessary to facilitate investigations. However, beyond asserting that investigations are ongoing, the replying affidavit does not explain why freezing all transactions in the account was necessary once access to the banking records had been authorised by the Court. 36.Investigative measures must always bear a rational relationship to the objective sought to be achieved. The purpose of sections 118 and 121 of the Criminal Procedure Code and section 180 of the Evidence Act is to facilitate investigations and preserve evidence where necessary. They are not intended to impose punitive restrictions upon a person before any criminal culpability has been established. 37.The Constitution equally requires that any limitation of rights be reasonable and proportionate. While Article 24 of the Constitution permits limitation of constitutional rights in appropriate circumstances, such limitation must be no more restrictive than is necessary to achieve the legitimate purpose. 38.A blanket suspension of all transactions in an operational business account is a drastic measure. It affects not only the account holder but also employees, suppliers, customers, creditors and other innocent third parties whose interests may have no connection whatsoever with the investigations. 39.The Court must therefore ask whether the investigative objective could reasonably have been achieved through a less restrictive measure. 40.In the present case, the answer is in the affirmative. Once the Respondent had been authorised to obtain bank statements, account opening documents, mandates and all relevant banking records, the investigations could proceed unhindered. No material has been placed before this Court demonstrating that continued operation of the account would compromise the investigations or result in the destruction or concealment of the banking records already secured through the court order. 41.In those circumstances, the continued suspension of all transactions ceased to be a measure directed at facilitating investigations and instead became an unnecessary and disproportionate restriction upon the Applicant's proprietary and commercial rights. 42.This Court must remain vigilant to ensure that investigative powers are exercised in a manner that advances, rather than undermines, the rule of law. Effective criminal investigations and constitutional protection of property rights are not mutually exclusive objectives. The law requires that they be balanced in a manner that is fair, reasonable and proportionate. 43.I therefore find that while the learned Chief Magistrate correctly authorised access to the Applicant's banking records, Order No. 2 suspending all transactions in the Applicant's account for NINETY (90) days was excessive in the circumstances of this case and cannot be permitted to stand. 44.The interests of justice will be adequately served by permitting the Respondent to continue with its investigations using the banking records lawfully obtained while restoring the Applicant's ability to operate its account in the ordinary course of its business. Conclusion and Orders 45.Having carefully considered the Notice of Motion, the affidavits on record, the proceedings before the subordinate court, the rival submissions of counsel and the applicable law, I am satisfied that this Court is properly seized of jurisdiction under sections 362 and 364 of the Criminal Procedure Code and Articles 165(6) and (7) of the Constitution to examine the legality, propriety and regularity of the impugned orders. 46.The material presented before the learned Chief Magistrate disclosed sufficient grounds to warrant judicial intervention under sections 118 and 121 of the Criminal Procedure Code and section 180 of the Evidence Act. The order authorising the Respondent to inspect and obtain the Applicant's banking records was therefore lawfully issued and served a legitimate investigative purpose. 47.However, the further order suspending all debit and credit transactions in the Applicant's account for a period of NINETY (90) days constituted a far more intrusive limitation upon the Applicant's proprietary and commercial rights. Such an order called for careful justification on the basis that it was necessary to preserve the integrity of the investigations. 48.Although the Respondent has maintained that investigations are ongoing, no sufficient basis has been demonstrated to show that the investigations cannot effectively proceed once access to the Applicant's banking records has been secured. The Court is not persuaded that a blanket suspension of all transactions in the Applicant's operational account was necessary to achieve the intended investigative objective. 49.The effect of Order No. 2 was to bring the Applicant's business operations to a virtual standstill by preventing it from meeting its financial obligations to employees, suppliers, customers and other stakeholders. While inconvenience to a person under investigation may at times be unavoidable, the law does not sanction restrictions that are more onerous than is reasonably necessary for purposes of an investigation. 50.The Court must always strike a balance between the public interest in the Orders investigation and detection of crime and the constitutional obligation to protect fundamental rights and freedoms. In the circumstances of this case, that balance is best achieved by permitting the investigations to continue while removing the restriction that unnecessarily impedes the Applicant's lawful business operations. 51.Accordingly, the Notice of Motion dated …… May 2026 succeeds to the extent set out below. 52.The Application is allowed in the following terms:a.The order issued by the Chief Magistrate's Court in Mombasa Criminal Miscellaneous Application No. E332 of 2026 authorising the Directorate of Criminal Investigations to inspect, obtain and analyse the Applicant's bank statements, account opening documents, mandates, Know Your Customer (KYC) records and all other banking records relating to Account No. 01504782876350 held at I & M Bank PLC is hereby affirmed conditionally.b.Order No. 2 issued by the Chief Magistrate's Court on 23rd April 2026 suspending all debit and credit transactions in Account No. 01504782876350 for a period of ninety (90) days is hereby quashed.c.I & M Bank PLC shall forthwith remove the restriction imposed pursuant to Order No. 2 and permit the Applicant to operate the said account in the ordinary course of its lawful business.d.For the avoidance of doubt, the quashing of Order No. 2 shall not affect, hinder or otherwise impede the ongoing investigations. The Directorate of Criminal Investigations shall remain at liberty to continue with its investigations, to inspect and analyse the Applicant's banking records lawfully obtained pursuant to the orders of the subordinate court, and to take such further lawful investigative steps as may be necessary.e.Should the investigations disclose additional facts warranting further preservation orders, nothing in this ruling shall preclude the Respondent from moving a court of competent jurisdiction for appropriate relief in accordance with the law.f.As this matter concerns the proper exercise of investigative powers in the public interest, there shall be no order as to costs.It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS …31st… DAY OF……JULY……… 2026.WENDY K. MICHENIJUDGEMr. GICHUHI FOR THE APPLICANT MR SIRIMA FOR THE RESPONDENTHON. LADY JUSTICE WENDY MICHENIDoc IDENTITY: 44702782857336718776325654182Tracking Number:OO28D42026