[2021] KEHC 1974 (KLR)
The court found that the applicant, through the Serious Crime Unit, had established sufficient grounds for the issuance of warrants to access and investigate the specified bank accounts of the 5th respondent. The application was unopposed, and the supporting affidavit demonstrated that the investigation concerned a...
Source-derived case information.
- Citation
- [2021] KEHC 1974 (KLR)
- Parties
- Applicant: Republic through Serious Crime Unit; Respondent: Cooperative Bank; Respondent: Equity Bank; Respondent: Kenya Commercial Bank; Respondent: Postal Office Savings Bank; Respondent: Dickson Nyanga’ai Abuka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E174 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Ex Parte Application for Warrants and Orders
- Outcome
- Application allowed; warrants and ancillary orders granted as prayed.
- Judges
- LN Mutende
- Legal Topics
- Investigative Warrants, Bank Account Freeze, Electronic Evidence Production, Mobile Money Fraud
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic through Serious Crime Unit
Applicant
Cooperative Bank
Respondent
Equity Bank
Respondent
Kenya Commercial Bank
Respondent
Postal Office Savings Bank
Respondent
Dickson Nyanga’ai Abuka
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Ex Parte Application for Warrants and Orders
Legal Issues
- 1 Whether the applicant has established sufficient grounds for issuance of warrants to access and investigate the respondent's bank accounts.
- 2 Whether the court should order a temporary freeze on the specified bank accounts pending investigations.
- 3 Whether the banks should be compelled to produce electronic evidence and witness statements under Section 106B(4) of the Evidence Act.
Ratio Decidendi
The court found that the applicant, through the Serious Crime Unit, had established sufficient grounds for the issuance of warrants to access and investigate the specified bank accounts of the 5th respondent. The application was unopposed, and the supporting affidavit demonstrated that the investigation concerned a significant sum allegedly obtained through mobile money fraud by exploiting a system error. The court was satisfied that the orders sought were necessary to facilitate ongoing investigations, preserve evidence, and prevent the dissipation of suspected proceeds of crime. Accordingly, the court granted the warrants and ancillary orders as prayed.
Court Disposition
Application allowed; warrants and ancillary orders granted as prayed.
Orders
- A warrant is issued to PC Patrick M. Muli or any authorized investigator to access, inspect, and obtain information and certified documents for the specified bank accounts for the period between 1st March, 2021 to date.
- An order is issued forbidding debiting or transfer of funds from the specified accounts for 60 days pending inter partes hearing.
Full Case Text
Judgment text and source record
50 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO. E174 OF 2021
REPUBLIC THROUGH (serious crime unit)............................................................APPLICANT
VERSES
COOPERATIVE BANK...................................................................................1ST RESPONDENT
EQUITY BANK..................................................................................................2ND RESONDENT
KENYA COMMERCIAL BANK...................................................................3RD RESPONDENT
POSTAL OFFICE SAVINGS BANK............................................................4TH RESPONDENT
DICKSON NYANGA’AI ABUKA................................................................5TH RESPONDENT
RULING
1. The Republic through the Senior Crime Unit approached this court through a Notice of Motion filed herein seeking orders as follows:
(a)THAT,the Honourable court be pleased to issue a warrant to the Applicant No. xxxxx PC Patrick M. Muli, an investigator attached to Serious Crime Unit DCI Headquarters (Applicant), or any other investigator attached to and authorized by the Applicant, have access, inspect/investigate, obtain information and carry away certified of bank account opening documents, inward and outward remittance documents INSTRUCTIONS/SWIFT/RTGS/Deposits/withdrawal SLIPS/CHEQUES for the period between 1st March, 2021 to date, and bank account statement for the period between 1st march, 2021 to date in respect of;
i) Account numbers xxxxxxxxxxxxxx in the name of DICKSON NYANG’AI ABUKA domiciled at Co-operative Bank Limited,
(ii) Account Number xxxxxxxxxxx in the name ofDICKSON NYANG’AI ABUKA domiciled atKenya Commercial Bank,
(iii) Account number xxxxxxxxxxxxxx in the name ofDICKSON NYANG’AI ABUKA domiciled at Post Office Savings Bank
(iv) Account Number xxxxxxxxxxxxxx in the name ofDICKSON NYANG’AI ABUKA domiciled at Equity Bank.
(b) THAT, this Honorable Court be pleased to issue an Order to forbid debiting (withdrawals) or transfer of funds from the account for a period of 60 days pending outcome of interparty hearing on a date to be determined by the court in respect of
(i) A/C No. xxxxxxxxxxxxxxdomiciled at Co-operative Bank Limited.
(ii) A/C No. xxxxxxxxxxx domiciled at Kenya Commercial Bank.
(iii) A/C No. xxxxxxxxxxxxxx domiciled at Post Office Savings Bank.
(iv)A/C No. xxxxxxxxxxxxxxdomiciled at Equity Bank held in the name of DICKSON NYANG’AI ABUKA respectively.
(c) THAT, this Honourable court be pleased to issue an order compelling the managers of
i. Cooperative Bank Limited
ii. Kenya Commercial Bank
iii. Post Office Savings Bank
iv. Equity Bank,
to nominate authorized person(s) to make and give to No. xxxxx PC Patrick M. Muli an investigator attached to Serious Crime Unit DIC Headquarters (applicant), or any other investigator attached to and authorized by the applicant, a certificate of production of electronic evidence under section 106B (4) of Evidence Act in respect of evidence (certified copies) generated electronically or from electronic device(s) that shall be given in compliance with the orders of the Honourable Court.
(d) THAT,this Honourable Court be pleased to issue an order compelling managers of
i. Cooperative Bank Limited
ii. Kenya Commercial Bank
iii. Post Office Savings Bank
iv. Equity Bank, to nominate authorized person(s) to record and avail to No. xxxxx PC Patrick M. Muli an investigator attached to Serious Crime Unit DIC Headquarters (applicant), or any other investigator attached to and authorized by the (applicant), a witness statement in view of a valid certified copied and certificate of production of electronic evidence under Section 106B (4) of Evidence Act that shall be given in compliance with order of this Honourable Court and any other relevant information that may aid the applicant to complete desired investigations.
(e) THAT, the orders of this Honourable Court be served to the Managers of:
i. Cooperative Bank Limited
ii. Kenya Commercial Bank
iii. Post Office Savings Bank
iv. Equity Bank.
2. The application is based on grounds that No. xxxxx PC Patrick M. Muli of the Directorate of Criminal Investigations Serious Crime Unit is investigating a case of stealing contrary to Section 268 (1) as read with Section 275 of the Penal Code having arrested the 5th Respondent to be investigated for mobile money fraud having taken advantage of Bonga Everywhere Service System error to redeem Bonga Points valued at Kshs. 12,384,475/= for his own benefit and that of his accomplices; money that was transferred to several bank accounts held in different banking institutions.
3. The application was duly served upon the Respondents. The 5th Respondent in particular having instructed Ms. Kali sought time to file a response that was not forthcoming. The application is therefore unopposed.
4. In the result, a warrant shall issue to No. xxxxx P.C. Patrick M. Muli
5. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY, THIS 3RD DAY OF NOVEMBER, 2021.
L. N. MUTENDE
JUDGE
IN THE PRESENCE OF:
Court Assistant – Mutai
Mr. Kiragu for ODPP