Empire Gelle Limited v Equity Bank Plc

6. The Applicant’s case is that a sum of €1,000,000 was transferred from Deutsche Bank AG to an account held by the Applicant at Equity Bank for purposes of a property acquisition, and that the Respondent has unlawfully withheld the funds without explanation. 7. In support, the Applicant relies principally on SWIFT MT103 transmission records, contractual documentation underlying the alleged remittance, and correspondence demanding release of funds. 8. The Respondent’s position is unequivocal: that no such funds were ever received, credited, or held by the Respondent on behalf of the Applicant, and that there is therefore nothing capable of being released, withheld, or restrained. 9. The central issue for determination is whether the Applicant has satisfied the legal and evidential threshold for the grant of a mandatory injunction, particularly whether it has demonstrated that the Respondent is in possession or control of the alleged €1,000,000. 10. The principles governing the grant of a mandatory injunctive order are that it imposes a much higher threshold than that applicable to prohibitory injunctions, and that the order will only issue in the clearest of cases, where: the Applicant’s right is plainly established; the facts are uncontested or admit of only one conclusion; and the Court feels a high degree of assurance that the order sought would ultimately be granted at trial. 11. Where material facts are disputed, or where granting the order would require the Court to resolve contested matters of evidence, the relief must be declined. 12. In Kenya Breweries Ltd & Another v Washington O. Okeyo [2002] 1 EA 109 (CA), the Court of Appeal held that a mandatory injunction can only be granted in clear and exceptional circumstances, and then only when the court is satisfied that “the matter is clear and undisputed and that the injunction is necessary to restore the status quo.” 13. This position was reaffirmed in Nation Media Group & 2 Others v John Harun Mwau [2014] eKLR, where the Court observed that mandatory injunctions at interlocutory stage are only granted where the Court has a high degree of assurance that the applicant will ultimately succeed, and that the order sought will not require determination of contested facts. 14. It is settled law that under sections 107 and 108 of the Evidence Act (Cap 80), the burden of proof lies on the party who asserts the existence of a fact. The Applicant therefore bears the legal and evidential burden of establishing, on a balance of probabilities, that the Respondent is in possession or control of the funds. 15. The Applicant placed before the Court extensive documentation demonstrating the commercial background and asserted purpose of the alleged remittance. From the pleadings and annexures, it is apparent that a transfer was initiated by a remitting bank. 16. It is, however, a matter of settled banking practice and law that a SWIFT MT103 message is evidence of transmission instructions, not conclusive proof that funds were received, settled, and credited into a beneficiary’s account. 17. The Respondent, on its part, produced copies of bank statements and sworn evidence to the effect that no such funds were entered in all three (3) accounts maintained by the Respondent in the Applicant’s name. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6802/eng@2026-04-30 2

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18. Under section 176 of the Evidence Act, certified extracts from bankers’ books shall be prima facie evidence of the matters contained therein. In Trust Bank Ltd v Paramount Universal Bank Ltd & 2 Others [2009] eKLR, the Court held that: “ Bank statements produced in accordance with section 176 of the Evidence Act constitute prima facie proof of the entries therein unless the same are successfully impeached by cogent evidence.” 19. The Applicant has not produced any bank‑generated credit advice, account statement, or confirmation from the Respondent evidencing receipt or posting of the funds. 20. The Court is therefore left with conflicting accounts which cannot be resolved without a detailed evidentiary inquiry, including issues of correspondent banking and inter‑bank settlement, matters ill‑suited for determination through interlocutory motion. 21. In the premises, the Applicant has not, on the material before this court, discharged the burden of proof that the Respondent received or holds the €1,000,000 claimed. 22. In the result, the Court finds the present application to be without merit. Consequently: 23. i. The Amended Notice of Motion dated 16th March 2026 is hereby dismissed in its entirety. ii. The costs of the Application, which are hereby assessed at Kshs. 50,000/- is awarded to the Respondent. It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBITHIS 30TH DAY OF APRIL 2026 HON. MR. JUSTICE MOSES ADO JUDGE OF THE HIGH COURT In the presence of: C/A – Moses ..………………….for the Applicant ….……………….for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6802/eng@2026-04-30 3

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