Bangbet Limited & 1 other v Director of Criminal Investigations (dci) & 1 other

– Rabow Company Ltd v Lucky Bus DMCC & 13 Others, consolidated with High Court Commercial Case No. E491 of 2024 – Lucky Bus DMCC & Bangbet Limited v Rabow Company Ltd & 4 Others. 3. It is the Applicant’s position that the freezing orders issued by the subordinate court are arbitrary, unreasonable, and irrational, and further, that they stand in conflict with existing orders of the High Court. They therefore argue that the said orders are illegal and amount to an abuse of the court process. The Applicant’s submit that the intended investigations could have been effectively undertaken without resorting to the freezing of the pay bill numbers, as all M-Pesa transactions leave a permanent digital record which can easily be accessed from Safaricom PLC, the 2nd Interested Party herein. Consequently, they assert that the freezing of the accounts was unnecessary and has the effect of unjustly paralyzing their business operations. 4. The Applicant’s further contend that the thirty (30) days granted to the 1st Respondent for purposes of investigation is manifestly excessive and unreasonable, given that the 1st Respondent could readily obtain the relevant transactional statements from the 2nd Interested Party. This, they argue, points to a process tainted with malice and bad faith, and intended more to frustrate the Applicant’s’ business than to facilitate genuine investigations. 5. The Applicant’s are seeking the following orders: 6. a. Spent b. Pending the hearing and determination of the application inter-parties, the Honourable Court be and is hereby pleased to stay execution of the orders issued on 23rd October, 2024 by the Magistrate’s Court at Kibera in Miscellaneous Criminal Application No. E985 of 2024 – Republic (Thro’ Regional Criminal Investigations Officer, Nairobi Area) vs. Safaricom PLC. c. Pending the hearing and determination of the application inter-parties, the Honourable Court be and is hereby pleased to direct the 1st Interested Party to suspend the 2nd Respondent’s operations through the Bookmakers off-the-course License number 0000672 and the brand names Bangbet, Betmania, or any other brand name that is deceptively similar to that of the Applicant’s. d. The Honourable Court be and is hereby pleased to stay execution of the orders issued on 23rd October, 2024 by the Magistrate’s Court at Kibera in Miscellaneous Criminal Application No. E985 of 2024 – Republic (Thro’ Regional Criminal Investigations Officer, Nairobi Area) vs. Safaricom PLC pending the hearing and determination of the Petition herein. e. The Honourable Court be and is hereby pleased to direct the 1st Interested Party to suspend the 2nd Respondent’s operations through the bookmakers off-the-course License number 0000672 and the brand names Bangbet, Betmania, or any other brand name that is deceptively similar to that of the Applicant’s pending the hearing and determination of the petition herein. f. The Court may grant any other relief as it deems fit to grant in the circumstances. g. The costs of the application abide the outcome of the Petition. The 1st Respondent filed a Notice of Preliminary Objection dated 10th March 2025, opposing the Petition and the accompanying Application on the ground that this Court lacks jurisdiction to entertain, hear, and determine the matter. It is the 1st Respondent’s position that the dispute is purely commercial in nature and is therefore properly within the purview of the Commercial Division of the High Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17810/eng@2025-08-14 2

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7. Additionally, the 1st Respondent lodged Grounds of Opposition dated 23rd December 2024, contending that the Petition fails to disclose any violation of the Petitioners’ constitutional rights and fundamental freedoms as alleged. 8. The 1st Respondent maintains that the impugned freezing orders were lawfully obtained pursuant to a valid complaint lodged by the 2nd Respondent, and that the said actions fall squarely within its statutory mandate to investigate criminal activity and criminal conduct. 9. According to the 1st Respondent, the nature of the complaint necessitated confidentiality at the commencement of investigations, as prior disclosure to the Petitioners would have rendered the process nugatory given the rapid and dynamic movement of funds in digital financial systems. 10. It is further contended that the freezing orders, though restrictive, constitute a lawful limitation of the Petitioners’ constitutional rights under Articles 47 and 48 of the Constitution, which rights are not absolute but subject to limitation under Article 24. The 1st Respondent asserts that the orders were properly issued in accordance with Sections 118 and 121 of the Criminal Procedure Code. 11. The 2nd Respondent, through a Replying Affidavit sworn on 4th March 2025 by Anne Wangare Kinyugo, its Director, deposes that the Petitioners have obtained ex parte orders in three other courts over the same subject matter. It is her contention that the multiplicity of suits amounts to an abuse of the court process and risks placing various courts in a position of judicial embarrassment due to the likelihood of conflicting decisions. 12. The 2nd Respondent further contends that the present Application is a classic instance of forum shopping, amounting to a misuse of the judicial process and thereby offending the principles of justice and fair administration of the court’s authority. It is asserted that such conduct undermines the integrity of these proceedings. The 2nd Respondent additionally points out that, by an order dated 16th January 2025, Hon. Justice Gikonyo in the High Court Commercial court reinstated the position that the Petitioners are restrained from trading or otherwise engaging in the business of betting under the name “Bangbet”, on the basis that they are not duly licensed to operate as such 13. It is the 2nd Respondent’s position that the dispute before this Court is purely civil and squarely before the Commercial Division, and that the Petitioners are attempting to convert it into a constitutional dispute to obtain parallel reliefs. She asserts that the Petitioners have failed to plead their claim with the precision and clarity required under the principle laid down in Anarita Karimi Njeru v Republic (1979) KLR 154, and that the Petition and Application should therefore be dismissed. 14. The 2nd Interested Party, Safaricom PLC, through a Replying Affidavit dated 4th February 2025 sworn by Daniel Ndaba, Senior Legal Officer, avers that the Application has been overtaken by events, as the pay bill numbers 569699 and 3039787 were unfrozen pursuant to the court order issued on 5th November 2024 and the Notice of Withdrawal dated 23rd January 2025, which vacated the orders of 16th January 2025. 15. The 2nd Interested Party further contends that the Application and the prayers sought against it are unmerited, having been rendered moot by the subsequent developments, and accordingly prays that the proceedings against it be struck out. 16. In response, the Petitioners filed a Replying Affidavit dated 9th December 2024, sworn by David Kabue Guchuhi, reiterating that they have moved this Court seeking to have the ex parte orders issued on 5th November 2024 discharged, varied, or set aside. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17810/eng@2025-08-14 3

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17. The Petitioners maintain that the existence of other suits does not trigger the doctrine of sub judice, asserting that the causes of action in the various matters are distinct and unrelated. They contend that the subject matter and parties are not identical, and therefore the assertion that they have filed multiple suits over the same cause is unfounded 18. The application was canvassed by way of written submissions. Petitioners’ Submissions 19. The Petitioners/Applicant’s filed written submissions dated 3rd March 2025, wherein they contended that this Court is vested with the jurisdiction to issue conservatory orders in constitutional petitions pursuant to Article 23(3)(c) of the Constitution and Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. 20. They submitted that the principles governing the grant of conservatory orders within the framework of Article 23 of the Constitution are well settled, and urged the Court to be guided by established jurisprudence in Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 others [2014] eKLR; Nathif Jama Adam v Abdikhalim Osman Mohamed and 3 others [2014] eKLR; Board of Management of Uhuru Secondary School v City County Director of Education & 2 others; and Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR. 21. The Applicant’s contended that they have demonstrated the existence of a prima facie case with a likelihood of success and that, absent the grant of conservatory relief, they stand to suffer grave prejudice, including the impairment of their commercial interests. It was further asserted that the impugned freezing orders issued by the subordinate court are disproportionate to their intended purpose, resulting in the closure of the 1st Applicant’s business operations, and are therefore arbitrary, unreasonable, and in contravention of the subsisting orders of the High Court (Hon. Justice Mabeya) issued on 1st October 2024. 22. They further averred that the impugned orders were granted ex parte without affording the Applicant’s an opportunity to respond to the allegations, notwithstanding the serious ramifications such orders have on their commercial operations, which have caused and continue to cause substantial financial loss. 23. It was their submission that, in an application for interim relief, an applicant is only required to demonstrate the existence of an arguable case disclosing triable issues, and it is immaterial at that stage whether the case will ultimately succeed. Consequently, the Court ought not to engage in a detailed analysis of facts or law at the interlocutory stage. Reliance was placed on Platinum Distillers Limited v Kenya Revenue Authority [2019] KEHC 9419 (KLR) and Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR. 24. It was further argued that a party who invokes the jurisdiction of the Court must not act in a manner that renders the eventual decision of the Court nugatory. The Court, therefore, bears a duty to issue appropriate interim measures to preserve the subject matter of litigation and prevent acts that may defeat the ends of justice or render the Court’s decision ineffectual. To buttress this submission, reliance was placed on Tom Mboya Odege v Edick Peter Omondi Anyanga & 2 others [2018] KECA 611 (KLR). 25. The Applicant’s maintained that the issues of sub judice and abuse of process do not arise in the present proceedings, asserting that the suits alleged to be similar are distinguishable both in substance and in parties. They contended that they are entitled to prosecute their petition on its merits, and that a stay https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17810/eng@2025-08-14 4

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of proceedings should only be granted where it is shown beyond reasonable doubt that the proceedings ought not to be allowed to continue. 1St Respondent’s Submissions 26. The 1st Respondent filed written submissions dated 12th March 2025 in support of their Notice of Preliminary Objection, wherein they contended that a Preliminary Objection may be raised at any stage of proceedings so long as the suit remains active, including when the matter is pending judgment. Reliance was placed on Republic v Chief Registrar of the Judiciary & 2 others ex-parte Riley Services Limited [2015] KEHC 6833 (KLR) and Gencel v Goga (Civil Suit E015 of 2022) [2023] KEHC 18429 (KLR) (31 May 2023) (Judgment). 27. The 1st Respondent further submitted that it is incumbent upon the Court to determine whether it should proceed to hear and determine the matter or exercise constitutional restraint. It was urged that this Court ought to exercise such restraint on the ground that the dispute at hand is, in essence, a commercial matter concerning the ownership and use of the trademark “Bangbet,” which is currently pending determination before the High Court. Accordingly, the Respondent argued that the dispute properly falls within the purview of the Commercial and Admiralty Division rather than the Constitutional and Human Rights Division. To fortify this submission, reliance was placed on Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696; Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others (2012) eKLR; Phoenix of E.A. Assurance Company Limited v S.M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR); Adega & 2 others v Kibos Distillers Limited & 5 others [2020] KESC 36 (KLR); Stephen Nyarangi Onsomu & another v George Magoha & 7 others [2014] KEHC 7745 (KLR); and Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] eKLR. 28. It was the 1st Respondent’s submission that upon exercising constitutional restraint, this Honourable Court must find that it lacks jurisdiction to entertain the matter. They emphasized that it is trite law that a court cannot proceed to determine a dispute where it lacks jurisdiction. 2Nd Respondent’s Submissions 29. The 2nd Respondents filed written submissions dated 5th March 2025, in which they contended that the Petitioners failed to disclose to this Honourable Court that they had instituted proceedings in other courts seeking similar reliefs. It was their submission that by filing multiple applications before different forums for identical remedies, the Petitioners have engaged in vexatious litigation, abused the court process, and engaged in blatant forum shopping coupled with material non-disclosure. In support of this contention, reliance was placed on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR, Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 others [1998] eKLR, and Richard Onyino v Joshua Ang’elei & 4 others [2020] eKLR. 30. It is its case that the dispute at hand is purely civil in nature and properly within the jurisdiction of the Commercial Court. They asserted that the Petitioners are mischievously attempting to convert a commercial dispute into a constitutional one, thereby seeking to litigate the same matter concurrently before two different forums. It was also submitted that the Petitioners have failed to demonstrate, with the requisite precision and clarity, how the 2nd Respondent has violated their constitutional rights, as required under Anarita Karimi Njeru v Republic [1979] KLR. Moreover, the Petitioners have not established the existence of any urgent need for the issuance of conservatory orders, having failed to adduce evidence of imminent or irreparable harm that would result if such orders are not granted. In this regard, reliance was placed on Kenya Human Rights Commission v The Attorney General & 2 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17810/eng@2025-08-14 5

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others [2017] eKLR and International Centre for Policy and Conflict v The Attorney General & 3 others [2013] eKLR. 31. The 2nd Respondents further submitted that costs serve as an instrument to deter the misuse of judicial processes and ought to be awarded to penalize parties who engage in dishonest or vexatious conduct. Reliance was placed in National Union of Water & Sewerage Employees v Registrar of Trade Unions & 5 others [2015] eKLR. 2Nd Interested Party’s Written Submissions 32. The 2nd Interested Party filed written submissions dated 28th April 2025, wherein they reiterated the contents of their Replying Affidavit and submitted that, given the prevailing circumstances, the Applicant’s’ pay bill accounts which are the subject of the present application have already been unfrozen. Consequently, the court order issued on 23rd October 2024 has been marked as spent, effectively bringing the proceedings before the Kibera Magistrate’s Court to a close. On that basis, it was their submission that the instant application has been overtaken by events and is therefore moot. 33. It was further submitted that their actions were undertaken in strict compliance with valid court orders duly served upon them, noting that obedience to court orders is not discretionary but a mandatory legal obligation, the breach of which may attract contempt proceedings. They contended that they acted in good faith and in furtherance of the principles of justice and fairness, which dictate adherence to lawful court directives and uphold the constitutional principle that no person is above the law. 34. They placed reliance on Huma v Association & another; Nairobi City County & 2 others (Respondent) (Environment & Land Case E318 of 2021) [2024] KEELC 870 (KLR) (15 February 2024) (Ruling) and Republic v Principal Secretary, Ministry of Defence Ex-Parte George Kariuki Waithaka [2018] eKLR. Analysis And Determination 35. Having considered the pleadings, rival affidavits, and the comprehensive written submissions by the parties, as well as the authorities cited therein, the Court is of the considered view that the following issues arise for determination: 1. Whether this Court has jurisdiction to entertain the present Petition and the accompanying Application in light of the Preliminary Objection raised by the 1st Respondent; 2. Whether the Petitioners have established a case warranting the grant and confirmation of conservatory orders pending the hearing and determination of the Petition; and 3. Whether the Petition and the applications before the Court amount to an abuse of the court process. 36. On the first issue regarding jurisdiction, the 1st Respondent argued that the dispute before the Court is commercial in nature, revolving around the trademark “Bangbet,” and that the matter is already before the Commercial and Admiralty Division of the High Court. They therefore urged this Court to exercise constitutional restraint. The 2nd Respondent similarly submitted that the Petitioners are improperly seeking to convert a civil and commercial dispute into a constitutional one. 37. It is settled law, as stated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors (1969) EA 696, that a preliminary objection must raise a pure point of law capable of disposing of a matter at the outset. Further, the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17810/eng@2025-08-14 6

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Bank Limited & 2 others (2012) eKLR held that jurisdiction flows from the Constitution or statute, and a court cannot arrogate itself jurisdiction beyond that which is conferred upon it. 38. While the underlying subject matter of the dispute touches on commercial transactions relating to the trademark “Bangbet,” the Petitioners have raised allegations that the 1st Respondent, a public authority, acted in violation of their constitutional rights and fundamental freedoms under Articles 27, 40, 47, and 50 of the Constitution. The Petitioners’ challenge therefore extends beyond private commercial dealings to include alleged abuse of investigative power and violation of due process rights. 39. This Court is alive to the doctrine of constitutional avoidance, as restated in Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] eKLR, which cautions that courts should refrain from determining constitutional questions where a matter can be resolved through other legal mechanisms. However, where a constitutional issue is properly pleaded and raises questions of fundamental rights, the Constitutional Division retains jurisdiction. In the present case, the Petitioners’ grievance concerns the alleged arbitrary exercise of state power in the issuance and execution of freezing orders, which clearly raises constitutional dimensions warranting this Court’s intervention. 40. Accordingly, the Court finds that it is properly seized of jurisdiction to hear and determine the Petition. The Preliminary Objection dated 10th March 2025 therefore lacks merit. 41. On the second issue of conservatory relief, Article 23(3)(c) of the Constitution empowers this Court to issue conservatory orders to preserve the subject matter pending the determination of constitutional questions. The applicable principles were succinctly enunciated in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, where the Supreme Court held that an applicant must demonstrate (i) a prima facie case with a likelihood of success, (ii) that the conservatory order is necessary to prevent prejudice to the applicant, and (iii) that the public interest warrants such protection. 42. The Petitioners assert that the freezing of their pay bill accounts was arbitrary, disproportionate, and contrary to existing High Court orders, resulting in the paralysis of their business operations. They further argue that investigations could have been effectively conducted through access to M-Pesa statements from the 2nd Interested Party without halting commercial activities. 43. The 1st and 2nd Respondents, however, maintain that the orders were lawfully obtained pursuant to the Criminal Procedure Code and were necessary to facilitate investigations into allegations of theft, emphasizing that the orders were limited in duration and scope. 44. Having considered the rival positions, this Court is persuaded that the Petitioners have demonstrated an arguable prima facie case, particularly on the question of proportionality and procedural fairness in the issuance of the freezing orders. The balance of convenience also tilts in favour of preserving the Petitioners’ commercial operations pending the full hearing of the Petition, as failure to do so would occasion irreparable harm not compensable by damages. 45. In addition, this Court notes that the 2nd Interested Party has confirmed that the pay bill accounts in question have since been unfrozen, rendering part of the relief sought moot. However, the preservation of the status quo remains necessary to prevent the recurrence of the impugned actions and to safeguard the integrity of the pending Petition. 46. On the third issue, whether the Petition constitutes an abuse of process, the 2nd Respondent contended that the Petitioners have filed multiple proceedings before various courts seeking similar reliefs, thereby engaging in forum shopping. While the record indicates that related suits exist before the Commercial https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17810/eng@2025-08-14 7

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Division, the Petitioners have explained that the causes of action are distinct, one being commercial, and the other constitutional. Having reviewed the pleadings and annexures, the Court is not satisfied that the doctrine of sub judice has been triggered, as the parties and issues are not identical within the meaning of Section 6 of the Civil Procedure Act. 47. Consequently, while the Court deprecates the filing of multiple suits that risk judicial embarrassment, it finds no sufficient basis to conclude that the present Petition is vexatious or amounts to an abuse of process. 48. In the result, and upon balancing all the competing interests and considerations of justice, this Court finds merit only to the extent that the conservatory reliefs earlier granted should be sustained pending the hearing and determination of the main Petition. 49. For the foregoing reasons, this court issues the following orders; i. The Preliminary Objection dated 10th March, 2025 and the Notice of Motion application dated 07th November, 2024 filed by the 1st Respondent be and are hereby dismissed with no order as to costs ii. The 2nd Respondent’s Notice of Motion application dated 07th November, 2024 be and is hereby dismissed with no order as to costs iii. The Petitioners Notice of Motion application dated 04th November, 2024 partially succeeds in terms of prayer d and g only and the Conservatory Orders 1 & 2 dated and issued by this court on 5th November, 2024 are confirmed pending full hearing and determination of the Petition. iv. Directions on the expedited hearing and determination of the Petition to issue separately. v. Costs in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF AUGUST 2025. BAHATI MWAMUYE JUDGE In the presence of: Counsel for the Petitioners – Mr. Kipkorir hb Mr. Kiplangat Counsel for the 1st Respondent – Mr. Weche Counsel for the 2nd Respondent – Mr. Mburu Counsel for the 2nd Interested Party – Mr. Oonga Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17810/eng@2025-08-14 8

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