https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11183

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKADARA** **CRIMINAL DIVISION** **MISC . APPLICATION NO 018 OF 2026** **NCBA …………………………………….…………………… APPLICANT** **VERSUS** **REPUBLIC …………………………………….………… 1ST RESPONDENT** **DENNIS NCHAGA OGEMBO ………………...……. 2ND RESPONDENT** ***(Being Revision from the order of the trial court in MCCR Case No E1301 of 2025 at Makadara Chief Magistrates Court )*** **RULING** 1. By a Notice of Motion dated 4th February 2026 under a certificate of urgency the applicant herein moved the court for the following orders: 2. That the application be certified urgent 3. The court be pleased to call for and examine the record and proceedings in Makadara MCCR case no E1301 of 2025 for the purposes of satisfying itself as to the correctness, legality and propriety of the ruling delivered on the 29th January 2026 and the consequential orders arising therefrom. 4. That pending the hearing and determination of the application, there be a stay of execution and or implementation of the orders directing the transfer or release of funds held in the account number 100087478 at the NCBA Bank Kenya Ltd. 5. That this honourable court be pleased to issue such further and or consequential directions as it may deem fit and just for purposes of reconciling and resolving the apparent conflict between the orders issued on 12th august 2025 in Milimani Criminal Misc. Case No E2945 of 2025 and the orders subsequently issued in Makadara MCCR case No E1301 of 2025 on 2nd October 2025, so as to safeguard the due administration of justice. 6. The said application was supported by an annexed affidavit sworn by Christine Wahome a Senior Legal Counsel of the applicant in which she deposed that on 12th august 2025, the bank was served with a court order emanating from Milimani Magistrates Court Criminal Case Miscellaneous Case No E2945 of 2025 directing the bank to freeze the funds in account no 1000827478 at the applicant’s bank, which order it complied with. 7. That subsequently on the 2nd October 2025 the applicant bank was served with another order emanating firm Makadara Magistrates Court MCCR No E1301 of 2025 directing the bank to release all the funds held in the subject account to one Samuel Gatheru Rugio. 8. That in light of the conflicting orders herein the applicant filed an application dated 29th October 2025 seeking to discharge vary and or set aside the orders emanating from Makadara MCCR E 1301 of 2025 being the latter order and by a ruling thereon on 29th January 2026 the trial court erroneously found that there was no order directing the freezing of the said bank account and subsequently directed that the funds therein be transferred to Samuel Gatheru Rugio thereby reinstating and or affirming the order issued on 2nd October 2025 . 9. It was deposed that that the said finding was manifestly erroneous on the face of the record and constituted a material misdirection in law and fact as there existed a clear and unambiguous freezing order issued by court of competent and concurrent jurisdiction over the same subject matter thereby putting the applicant in an untenable and impossible position to comply without disobeying the other order. 10. For record purpose on 2nd March 2026 the duty court certified the matter urgent and issued a stay order pending the hearing of this application. 11. This court on 16th June 2026 directed that the DCI Railways which had obtained the freezing orders and the 2nd respondent be served to attend having confirmed from the lower court records that the owner of the subject account is the accused before the trial court at Makadara and at the hearing of this application , the said DCI and the 2nd Respondent were absent. **DETERMINATION** 1. In this matter from the pleadings and the records of the proceedings before the lower court , the following facts are not in dispute: that the said account belongs to the second respondent and that the DCI Railways obtained an order authorizing NO 61062 S.Sgt. Johnson Wambulwa to investigate the said account and to require for his scrutiny of such records and to take certified copies of the account opening documents , registration particulars , transaction statements for the period between 1st March 2025 to 30th march 2025 to confirm if there is any amount deposited into the said account in the said period and to freeze the respective account of any transactions. That the evidence be produced in court. The said order was issued on the 6th day of august 2025. The reportee in respect thereof is one Daniel Ndirangu. 2. On the 17th day of march 2025 the second respondent herein was charged at the Makadara law Court in Criminal Miscellaneous Case No E1301 of 2025, with the offence of obtaining money by false pretence contrary to section 313 of the penal code with the investigating station being Buru Buru and the complainant thereon being Samuel Gatheru Rugio. 3. It is there apparent on the face of the record that the order issued by the Milimani court was in respect of a different complaint , being investigated by a different police station. 4. Whereas the trial court at Makadara on the 2nd October 2025 rightly ordered the release of the funds held in the said account to the compliant before her for purposes of settling the matter at the request of the accused through the prosecution, in finding that there was no freezing order on the said account against the express orders issued herein at Milimani , the court fell into error and therefore the said orders and directions cannot stand. 5. The said orders are hereby stayed pending the confirmation the investigations , the subject of the miscellaneous criminal application no E2945 of 2025 so as not to expose the applicant to contempt proceedings in respect to orders earlier issued and in existence as at the time when she made the latter orders. 6. In view of the fact that the 2nd respondent would like to utilize the funds held in the said account for the purposes of settling the matter which is before the trial court at Makadara and which now has a hearing date for 25th august 2026, I hereby make the following interim orders: 7. The order of release of funds issued in Makadara MCCR E 1301 of 2025 is temporarily stay 8. NO 61062 SSgt Johnson Wambulwa a police officer and investigator attached to the Directorate of Criminal Investigations Railways Nairobi and or its Successor and in his absence the representative thereof to appear before the trial court at Makadara on the 25th August 2026 when the matter herein is fixed for hearing to give a status report on Miscellaneous Criminal Application No E 2029 of 2025 and to show cause why the order obtained therein cannot be vacated to enable the 2nd respondent utilize the same to settle his liability in the Makadara matter. 9. For avoidance of doubt this the service of this order upon the Investigating Officer in Milimani Misc. Criminal Application No EE2945 of 2025 to be affected by the Investigating Officer in Makadara MCCR no E1301 of 2025 and a return thereof filed. 10. Since the trial Court is the DR of this Court, this matter to be mentioned before her on the same date for purposes of fixing a mention thereon before the court for further orders based on the outcome of the status report herein stated. 11. And it is ordered. **DATED SIGNED AND DELIVERED THIS 23rd DAY OF JULY 2026** **J. WAKIAGA** **JUDGE** In the presence of Mr. Ngugi for the applicant Ms. Kariuki for the 1st respondent Court Assistant - Irene