Ethics & Anti Corruption Commission & 2 others v Joseph Chege Gikonyo & 2 others

b. THAT the Honourable Court do order the Registrar of Lands - Mombasa to cancel and/or remove the restriction under section 76 of the Land Registration Act lodged following an order dated 20 July 2018 issued in this matter ordering that a temporary injunction issued against the Defendants restraining from them alienating, selling, charging, leasing, sub-divising or transferring Plot Number 11607/II/MN, Title Number CR.51999 measuring 0.0379 hectares. 3. The application is premised on the grounds set out in the Motion and in the Supporting Affidavit of Lilian Kemunto Abuya sworn on 17 February 2025. The Interested Party avers that she is the owner of Plot Number 11607/II/MN, Title Number CR.51999 (hereinafter referred to as “the property”) having purchased the same from the 3 rd Respondent on the 30 October 2015 before commencement of the proceedings herein. She contends that the Court ordered the registration of a restriction on the said property to prevent the Defendants from alienating, selling, charging, leasing, subdividing or transferring the same despite it belonging to her. 4. She deposed that she discovered the said encumbrance when she conducted a search on 25 November 2020 with the intention of getting a bank facility. She avers that she has never had any private dealings with the 3 rd Defendant, is not a party to the current proceedings and thus sought that the property be expunged from the Plaintiff’s schedule of properties. 5. The application was opposed by the Plaintiff who filed a Replying Affidavit sworn on the 24 July 2025 by Catherine Ngari. The Plaintiff averred that the subject property is among the properties that is reasonably suspected to be purchased by the 1 st and 3rd Defendants using proceeds of corruption and if the orders sought are granted, the Interested Party is likely to transfer, dispose or sell it thereby defeating the course of justice. 6. The Plaintiff further averred that the Interested Party has not met the threshold for the discharge of the said property under section 55 of the Anti-Corruption and Economic Crimes Act (ACECA) and thus prayed that the application be dismissed with costs. 2

page 2 of 21

Submissions by Parties 7. The application was canvassed by way of written submissions. The Interested Party filed and relied on the written Submissions dated 14 May 2026 whereas the Plaintiff filed and relied on written submission dated 3 June 2026. 8. The Interested Party submitted that this court is mandated to protect her rights under Article 40 of the Constitution as read with Section 93 of the Proceeds of Crime and Anti-Money Laundering Act by expunging the property from the schedule of the properties listed by the Plaintiff to be forfeited. She contended that she has never had any private dealings with the 3rd Defendant and is not a party on the current proceedings. 9. She argued that the application is guided by Section 93 of the Proceeds of Crime and Anti-Money Laundering Act which mandates an Interested Party to prove that she was not in any way involved in the crime, she acquired the interest for sufficient consideration without the knowledge that the property was tainted. She further stated that she was not notified by the Plaintiff when he was seeking preservation orders despite being an innocent purchaser and the registered owner of the said property. 10. She also submitted that she has demonstrated interest in the property under Section 92 (3) of the Proceeds of Crime and Anti-Money Laundering Act arguing that she purchased the property from the 3 rd Defendant on 30 October 2015 before commencement of these proceedings for value where she paid the purchase price in full and was subsequently issued with a Title Deed. She thereafter erected her matrimonial home on the said parcel and has since resided therein until she discovered the encumbrance in November, 2020 as she attempted to get a loan facility. 11. The Interested Party contended she lawfully acquired title to the property and being a bonafide purchaser for value without notice of any defect, her title was indefeasible. She relied on Section 23 of the Registration of Titles Act (repealed) and cited the cases of Joseph Ng’ok v Moijo Ole Keiwua & Others, Civil Appeal No. 60 of 1997 and 3

page 3 of 21

Hannah Wangui Ithebu & another v Joel Ngugi Magu & 2 others [2005] eKLR in support of her contention. 12. The Interested Party also submitted that the property is indefeasible pursuant to section 23 (1) of the Proceeds of Crime and Anti-Money Laundering Act and cited the case of Joseph Arap Ng’ok v Moijo Ole Keiwua & Others (supra) in support thereof. 13. Whilst placing reliance on Asset Recovery Agency vs Philis Njeri Ngiriti & 2 Others [2020] eKLR, the Interested Party stated that she was not involved in any crime hence merits protection. She submitted that the Plaintiff must prove to the required standards that she was either involved or aware the payments made were proceeds of crime. 14. Reliance was further placed on the case of Chemei Investments Limited vs the Attorney General & others Nairobi petition no. 94 of 2005 (unreported) where the Court adopted the approach of Milan Kumar Shah & 2 others v City Council of Nairobi & another on indefeasibility of title acquired in accordance with the applicable law and the person was not involved as part of a cartel which schemed to disregard the applicable law. She urged the court to allow the application with costs. 15. The Plaintiff opposed the application and submitted that the Commission (Plaintiff) is empowered to investigate the conduct of any person or body that constitutes corruption or economic crime and unethical conduct, and that the said property constitutes unexplained wealth within the meaning of section 55 of the ACECA. 16. It was argued that the restriction on the property was lawfully made pursuant to section 76 of the Land Registration Act as a vital safety mechanism designed to preserve the status quo pending determination of the case. That removal of the restriction at this stage would give the Interested Party a clear path to sell, charge or completely alienate the suit property, thereby defeating justice. Reliance was placed in the case of Republic vs Registrar Murangá & Another, Kamonye (Exparte Applicant) (2024) KEELC 4892 (KLR). 4

page 4 of 21

17. It was submitted that the injunction orders issued on 20 July 2018 were aimed at preventing fraud, improper alienation and protect the public interest pending hearing and determination of the suit. It was contended that since the issuance of the injunction, the Defendants have filed numerous applications before this court and the Court of appeal hence the delay in hearing and determination of the main suit. 18. It was contended that the property is the primary subject of an ongoing lifestyle audit and asset forfeiture case and granting the orders sought would result in irreparable harm to the public that cannot be compensated with an award of damages. The court was urged to decline the application. Analysis and determination 19. Having considered the Notice of Motion Application dated 17 February 2025 together with the Supporting Affidavit sworn on the same day by Lilian Kemunto Abuya, Plaintiff’s response contained in the Replying Affidavit sworn on the 24 July 2025 by Catherine Ngari, the rival submissions and the law, I narrow down the issues for determination as follows; i. Whether Plot Number 11607/II/MN, Title Number CR.51999 measuring 0.0379 hectares registered under the Interested Party’s name should be expunged from the Schedule of Properties to be forfeited. ii. Whether the restriction on the property made pursuant to the court’s order of 20 July 2018 should be lifted and/or canceled. Whether Plot Number 11607/II/MN, Title Number CR.51999 measuring 0.0379 hectares registered under the Interested Party’s name should be expunged from the Schedule of Properties to be forfeited. 20. The Plaintiff herein, Ethics and Anti-Corruption Commission, on 20 July 2018 filed a Notice of Motion Application under Section 56 of Anti-Corruption and Economic 5

page 5 of 21

Crimes Act (ACECA) seeking for injunctive orders against the Defendants in respect of various properties listed therein, including Property Plot Number 11607/II/MN, Title Number CR.51999 (hereinafter refereed to as “the suit property”) on grounds that the said properties were reasonably suspected to have been acquired as a result of corrupt conduct. 21. Section 56 of the said Act provides; “(1) On an ex parte application by the Commission, the High Court may make an order prohibiting the transfer or disposal of or other dealing with property if it is satisfied that there are reasonable grounds to suspect that the property was acquired as a result of corrupt conduct. (2) An order under this section may be made against a person who was involved in the corrupt conduct or against a person who subsequently acquired the property. (3) An order under this section shall have effect for six months and may be extended by the court on the application of the Commission. (4) A person served with an order under this section may, within fifteen days after being served, apply to the court to discharge or vary the order and the court may, after hearing the parties, discharge or vary the order or dismiss the application. (5) The court may discharge or vary an order under subsection (4) only if the court is satisfied, on the balance of probabilities, that the property in respect of which the order is discharged or varied was not acquired as a result of corrupt conduct. (6) ….……….. 22. Under the said provision of the law, the following is clear as far as this application is concerned; 6

page 6 of 21

i. The application is made ex parte by EACC; ii. The court will grant orders of prohibition if it is satisfied that there are reasonable grounds to suspect that the property was acquired as a result of corrupt conduct; iii. An order under this section may be made against a person who was involved in the corrupt conduct or against a person who subsequently acquired the property; iv. The court may discharge or vary the order if satisfied on a balance of probabilities that the property was not acquired through corrupt means. 23. On 20 July 2018, this court after considering all that was filed herein was satisfied that there were reasonable grounds to suspect that the properties listed therein were acquired by the 1st, 2nd and 3rd Defendants as a result of corrupt conduct. It therefore granted the prohibition orders restraining the Defendants from alienating, selling, charging, leasing, sub-dividing or transferring the said properties, including the suit property herein.The court also allowed the application for registration of a restriction on the property under Section 76 of the Land Registration Act (repealed). 24. The application before the court seeks to have the suit property expunged from the Schedule of Properties to be forfeited, and the lifting and/or cancellation of the restriction registered against the said property. The application is brought under Section 78 (2) of the Land Registration Act (repealed) and Article 159 of the Constitution. 25. The Interested Party submitted she that she is an innocent purchaser having purchased the suit property for value from the 3rd Respondent on 30 October 2015 before the current proceedings were commenced and only became aware of the prohibition orders on 25 November 2020 when she conducted an official search of the property with the intention of securing a bank facility. She relied on Section 93 of POCAMLA and 7

page 7 of 21

Article 40 of the Constitution in contending that she acquired the suit property for sufficient consideration without knowledge that the property was indeed tainted hence should be protected by law. 26. The Plaintiff on the other hand argued that the suit property is the subject of the current proceedings which seek to determine whether it constitutes unexplained assets within the meaning of Section 55 of ACECA and that the application is premature. 27. Section 55 (2) of ACECA provides that the Commission may commence proceedings under this section against a person if— (a) after an investigation, the Commission is satisfied that the person has unexplained assets; and (b) the person has, in the course of the exercise by the Commission of its powers of investigation or otherwise, been afforded a reasonable opportunity to explain the disproportion between the assets concerned and his known legitimate sources of income and the Commission is not satisfied that an adequate explanation of that disproportion has been given. 28. Further, Section 55 (3) and (4) of the said Act provides; (3) Proceedings under this section shall be commenced in the High Court by way of originating summons. (4) In proceedings under this section— (a) the Commission shall adduce evidence that the person has unexplained assets; and (b) the person whose assets are in question shall be afforded the opportunity to cross-examine any witness called and to challenge any evidence adduced by the Commission and, subject to this section, shall have and may exercise the rights usually afforded to a defendant in civil proceedings. 8

page 8 of 21

29. On 20 July 2018, pursuant to Section 55 of ACECA, the Plaintiff filed the current suit through Originating Summons seeking, inter alia, a determination of whether the properties listed in Paragraph 3 thereunder, including the suit property constitutes unexplained assets. The suit property is alleged to have been acquired by the 3 rd Defendant, a company wholly owned by the 1 st and 2nd Defendants during the period under inquiry, that is, between 1 January 1998 and 31st March 2016. This is the same property that was later acquired by the Interested Party on 30 October 2015. 30. Whereas the Constitution under Article 40 (1) guarantees the right to property, Article 40 (6) provides that such protection does not extend to any property that has been found to have been unlawfully acquired. This court is thus empowered under Section 55 of ACECA to inquire into and determine if any property was acquired through corrupt means, thereby constituting unexplained assets liable for forfeiture. This can only be determined upon conclusion of the hearing contemplated under Section 55 of the ACECA. 31. As regards the contention that the suit property is now registered under the name of the Interested Party whose title is indefeasible, the court is guided by the finding in EACC vs Nicholas Owino Ochiel & 4 others (2025) KEHC 3396 (KLR) where the court stated as follows; “It need be emphasized that in forfeiture proceedings such as these, the duel is and remains, primarily between the Anti-Corruplion Authority and the persons or entities suspected to have acquired the property corruptly…The point in time of reference of such forfeiture proceedings, is the point of acquisition of the property, rather than the present time i.e when, how and by whom the properly was acquired, rather than the question of who its current owner is or the property's current status. After all, if later the property is proved to have been acquired through corruption, it will escheat to the status ante, the current status of title holding notwithstanding; with all metamorphosis in title being null and void ab initio. 9

page 9 of 21

32. As pointed above, this court has jurisdiction under section 55 of ACECA to inquire into the property and determine whether it constitutes unexplained assets suspected to have been acquired through corruption. See Supreme Court in Dina Management Ltd vs County Government of Mombasa & 5 others [2023] KESC 30 (KLR). 33. The orders sought by the Interested Party are final in nature and cannot be granted at this stage. The hearing contemplated under Section 55 (3) and (4) (5) and (6) of ACECA has not commenced and granting the orders as sought would violate the right to fair hearing under Article 50 (1) of the Constitution. Whether the restriction on the property made pursuant to the court’s order of 20 July 2018 should be lifted and/or canceled 34. Turning to the second issue, the Interested Party is seeking for an order of this court to cancel and/or remove the restriction placed on the suit property under section 76 of the Land Registration Act following the order dated 20 July 2018 on grounds, inter alia, that she is a bonafide purchaser for value who did not have knowledge of the fact that the property was tainted. She affirmed that her interest in the said property is protected under the law. 35. The Plaintiff opposed the cancellation or lifting of the prohibition orders against the suit property on grounds that it constitutes unexplained wealth within the meaning of section 55 of the ACECA, that the restriction was lawfully made pursuant to section 76 of the Land Registration Act as a vital safety mechanism designed to preserve the status quo pending determination of the case, and that removal of the restriction at this stage would give the Interested Party a clear path to sell, charge or completely alienate the suit property, thereby defeating justice. 36. Under Section 56 (5) of ACECA , the court can vary or discharge the injunctive orders only if the court is satisfied that the subject property was not acquired as a result of corrupt conduct. See EACC vs Moses Kassaine Lenokulal & Another (2019) eKLR 10

page 10 of 21

and EACC vs Omar Sheriff Mohammed (2021) KEECL 1564 (KLR). This can only be done following the hearing contemplated under Section 55 of the Act. 37. The Interested Party has not demonstrated that she has suffered undue hardship, that the ex parte orders were founded on non-existence facts or were made out of pure speculation or any other sufficient ground to tilt the scales in her favour as against the public interest to warrant a variation of the prohibition orders at this stage. The suit property is currently under occupation and use by the Interested Party, and the restriction seeks to preserve suit property pending hearing and determination. The balance of convenience tilts towards retaining the prohibition orders. Chamber Summons Application dated 16 April 2025 38. The court will now turn to the Chamber Summons Application. Vide Chamber Summons Application dated 16 April 2025 brought under Articles 10, 22, 23(1), 47 (1) and 50 (1) of the Constitution of Kenya, Section 3A of the Civil Procedure Act, Order 19 (6) and (9) of the Civil Procedure Rules, the Defendants seek to strike out paragraphs and documents listed in paragraph 2 (a) to (n) of the said application contained in the Plaintiff's Further Affidavit sworn on 14 July 2023. 39. The main contention is that the impugned paragraphs and documents introduce new claims and allegations not contained in the Plaintiff’s Originating Summons dated 20 July 2018 that change the character of the suit unprocedurally and irregularly, in violation of this court’s ruling and/or order dated 13 November 2024 that restricted the Further Affidavit to matters raised by the Defendants in the Replying Affidavit sworn on 13 June 2023. 40. The application is based on the grounds on the face of it and supported by the Affidavit of Joseph Chege Gikonyo sworn on 16 April 2025. The Defendants aver that the Plaintiff in introducing the impugned paragraphs and documents, is attempting to change the character of its case, which if allowed, is prejudicial to the Defendants who have no right of reply. 11

page 11 of 21

41. It is contended that on the 22 of June, 2023 when the Plaintiff sought for leave to file a Further Affidavit in response to the Defendants Replying Affidavit dated 13 June 2023, the Court granted such leave but cautioned the Plaintiff from introducing new issues and evidence which direction the Plaintiff disregarded. 42. It was their further contention that the evidence sought to be introduced in the said paragraphs and documents was always in the Plaintiff’s possession but they opted not to submit it. That in the premises, allowing introduction of the said paragraphs and document’s at this stage would occasion a miscarriage of justice and expose the court to embarrassment should it arrive at a decision premised on undefended claims. The Defendants prayed that the application be allowed. 43. Plaintiff opposed the Application and filed a Replying Affidavit sworn on the 24 July 2025 by Catherine Ngari. The Plaintiff averred that the documents attached in the Further Affidavit were obtained from the Defendants following a lawful search at the Defendants premises in Mombasa on 19 April 2018. That the said documents are not new but are part of the documents that were inventoried and used in preparation of the Originating Summons dated 20 July 2018. 44. It was contended that on 22 June 2023, the Plaintiff sought leave to file a Further Affidavit and investigate some of the businesses the Defendants claim to conduct. That the said impugned paragraphs and documents are relevant in so far as they seek , inter alia, to show the current estimate value of the properties as at 5 August 2025 which will assist the court in determining the financial value of the assets sought to be forfeited; to demonstrate that the construction works started in the year 2004 and continued throughout the investigations for which source the Defendants are required to explain; unsatisfactory explanations on source of funds used to acquire and develop certain properties; to indicate the correct value of shares which were erroneously captured by the Commission; and to show the failure by the Defendants in explaining the sources of the impugned assets. 12

page 12 of 21

45. The Plaintiff thus averred that no prejudice will be occasioned should the Court fail to grant the orders sought since the Defendants will have an opportunity to controvert the said evidence, to cross-examine any witnesses called and challenge any evidence adduced. It was, however, contended that the Plaintiff would be prejudiced if they are denied an opportunity to present all the evidence obtained pursuant to lawful investigations. They took the view that striking out the evidence is a drastic action that would occasion gross injustice to the Plaintiff. They urged the court to dismiss the application. Submissions by Parties 46. The Application was canvassed by way of written submissions which both Parties field and relied on. The Defendants submitted that in filing the Further Affidavit, the Applicant exceeded the scope of leave granted by this Court which changed the character of the suit and amounted to advancing a new case. Reliance was placed on the case of Kitur v Keter & Another (Petition 27 of 2018) [2018] KESC 77 KLR where the Supreme Court held that Supplementary affidavits must not introduce new issues as that would advance a new case. 47. It was contended that the assertion by the Plaintiff that the Defendants would have a chance to respond to the said documents was illogical in so far as the Defendants have already responded to the Originating Summons and cannot therefore respond to new documents orally. Further, they took the view that since the documents were in the Plaintiff’s possession, having failed to use them earlier, they cannot now introduce them to broaden their theory. 48. The Defendant argued that parties are bound by their pleadings and as such, introduction of new issues violates that principle. See Court of Appeal cases of IEBC vs Stephen Mutinda Mule [2014] eKLR and Galaxy Paints Company Ltd v Falcon Guards Ltd [2000] eKLR. 13

page 13 of 21

49. The defendants further submitted that the new issues and materials therefore contravened their right to fair hearing guaranteed by the Constitution and will result in considerable prejudice as they cannot answer the same through oral testimony at trial. Reliance in support of this point was placed on the cases of Neptune Credit Management Limited V Raja [2024] KEHC 68 (KLR) and Geotop Survey Limited v Oldonyonyoike Group Ranch & Another; Geoflex Consultants Limited (Intended Interested Party [2022] KEHC 11394 (KLR), which espoused the proposition that supplementary material introducing new facts and causing prejudice ought to be expunged. 50. It was their further contended that admitting the impugned paragraphs at this stage would undermine the overriding objective under Section 1A of the Civil Procedure Act. See Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] KECA 208 (KLR). 51. The Defendants therefore urged this court to strike out the impugned new material as allowing the same would derail a matter that has been active for close to 8 years and would effectively re-open the suit causing further delay and costs to the Defendant. 52. The Plaintiff opposed the application and reiterated the contents of their Replying Affidavit as regards to the fact that the Further Affidavit was filed pursuant to leave by this Honourable Court and that the materials therein are not irrelevant or oppressive to warrant striking out. The case of Kivanga Estate Limited Vs National Bank of Kenya Limited [2017] eKLR in which the Court stated that striking out Pleadings was draconian and the court would in its discretion resort to it where it is satisfied that the pleadings were brought in abuse of its process or where it is found to be scandalous, frivolous or vexatious, was cited in support thereof. 53. The Plaintiff further cited case of Abdullahi & another vs Mohamed & 3 others (Environment and Land Case 725 of 2016 &325 of 2019 (Consolidated) [2026] KEELC 2404 (KLR) where the court allowed some paragraphs as not being irrelevant or oppressive. 14

page 14 of 21

54. The Plaintiff contended that the said materials were relevant in resolving the actual facts and issues in dispute and not burdensome, intimidating or complex designed to cause hardship to the Defendants. That the above parcels formed part of unexplained wealth which the Commission sought forfeiture proceedings as captured in the Originating Motion filed and that the Defendants have not explained how the paragraphs are scandalous, irrelevant or oppressive and an abuse of Court process to warrant striking out. 55. The Plaintiff invited the Court to take judicial notice of the fact that the Defendants were responsible for the delay in conclusion of the case owing to the numerous applications filed. Reliance was further placed on Article 159 (2) (d) of the Constitution and Order 19 Rule 7 of the Civil Procedure Rules. The Plaintiff urged the court to dismiss the application with costs. Analysis and determination 56. I have considered the Chamber Summons Application and Supporting Affidavit thereto, the Replying Affidavit, the rival submissions and the law. From the above, the main issue for determination is whether the impugned paragraphs in the Plaintiff's Further Affidavit dated 14 July 2023 should be struck out. 57. By Originating Summons dated 20 July 2018 the Plaintiff, inter alia, sought a declaration that various properties listed thereto attributed to the Defendants constitutes unexplained assets that should be forfeited to the State within the meaning of Section 55 and 56 of ACECA. The Plaintiff simultaneously filed a Notice of Motion Application under Section 56 that sought, inter alia, prohibition orders to bar the alienation of the impugned properties pending hearing and determination. This said were granted as prayed on the same date. 15

page 15 of 21

58. The Defendants filed a Replying Affidavit on the 13 June 2023 in response to the Originating Summons. The Plaintiff thereafter sought leave to file a Supplementary Affidavit which leave was granted on 22 of June 2023 as follows; “the Plaintiff is granted leave to file a further affidavit which shall be limited only to responding to the issues raised in the Defendants Replying Affidavit and shall not raise any new issues.” 59. Pursuant to the court’s leave, the Plaintiff filed a Further Affidavit sworn by Catherine Ngari on 14 July 2023. It is this Further Affidavit that prompted the current application. 60. The power to strike out an Affidavit or contents thereof is discretionary. The said power is founded upon Order 19 Rule 6 of the Civil Procedure Rules, which provides as follows; “The court may order to be struck out from any affidavit any matter which is scandalous, irrelevant or oppressive.” 61. The power to strike out pleadings ought to be exercised sparingly and judiciously. It is to be applied a measure of last resort and limited to instances where such an action is necessary for the ends of justice to be met or to prevent abuse of the court process. Section 3A of the Civil Procedure Act grants the Court inherent power to ensure the ends of justice are met. It provides as follows; “Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 62. In Kivanga Estate Limited vs National Bank of Kenya Limited [2017] eKLR stated as follows as regards striking out of pleadings; 16

page 16 of 21

“Striking out a pleading, though draconian, the court will, in its discretion resort to it, where, for instance, the court is satisfied that the pleading has been brought in abuse of its process or where it is found to be scandalous, frivolous or vexatious.” 63. From the above, it is apparent the this court has power to strike out pleadings that offend the law, that have been filed without leave or where leave has been granted, went beyond the limits set out by the court. In this case, the application is premised on the contention that the Plaintiff’s Further Affidavit introduced new matters and documents in direct contravention of this honourable court’s orders. 64. In order to determine whether the impugned paragraphs raise new issues and change the character of the Plaintiff’s case, the court has interrogated the contents of the Originating Summons dated 20 July 2018, the Replying Affidavit by the Defendants dated 13 June 2023 and the Further Affidavit by the Plaintiff dated 14 July 2023. 65. The impugned paragraphs 18(i), 19(ii) and (iv), 21, 23 and 39(i), (ii) and (iv) are all in relation to the following properties; a) LR. NO. MN/1/17641, CR. NO.56649 located in NYALI; b) MOMBASA/BLOCK/XVII/1408, a house in KIKOWANI c) LR. NO. MN/1/13698,CR.NO.39366 located in shanzu MOMBASA County d) KWALE/MWANGUNDA/932 located in KWALE County 66. All the above properties are listed in paragraph 3 of the Originating Summons dated 20 July 2018 where the Plaintiff is seeking a declaration as to whether the said properties constituted unexplained assets. I will now consider each paragraph. 67. The Defendants challenged paragraph 18 (i) on grounds that the Plaintiff introduced fresh allegations of valuation and a fresh valuation report in respect of property known as Mombasa/Block/XVII/1408. The court notes that paragraph 18 (i) is a direct response to paragraphs the 30, 51, 52 and 53 of the Replying Affidavit and the valuation report 17

page 17 of 21

dated 5 August 2005 was retrieved from the Defendants following a search conducted on 19 April 2008. it seek to rebut the allegation by the Defendant that he acquired the property forKshs 4,000,000/= with existing residential units and commercial shops. This is not new evidence. 68. Furthermore, Defendants alluded to anomalies with regard to this property in paragraphs 42 and 43 of the Replying Affidavit and which was responded to in paragraph 39 (ii) with the Plaintiff annexing building plans thereof. Thus, the allegation that the same is introducing fresh allegations does not stand as the same is in direct response to the averment by the Defendants. 69. With regards to the property LR No. MN/I/17641 (formerly MN/I/3166), the Defendants averred that the same was acquired in 2005 for the price of Kshs. 4,000,000/= with existing residential units and construction of additional units was still ongoing. The Plaintiff in response under paragraph 19(ii) averred that construction started in 2004 and continued thereafter producing the building plans and report thereof in rebuttal. 70. Additionally, in paragraph 19 (iv) of the Further Affidavit, the Plaintiff seek to demonstrate the discrepancies in the number of units alleged by the Defendants. In paragraph 42(i) of his Replying Affidavit, the Defendants questioned the valuation of the said property reiterating it was acquired with the existing units, which is what the Plaintiff seek to rebut in paragraph 39 (i) of the Further Affidavit. No new issues were introduced. 71. Regarding the property LR No. MN/I/13698, the Defendants in his Replying Affidavit stated that the property was acquired at a value of Kshs. 850,000/= in 2009 and developed it thereafter. In rebuttal, the Plaintiff in paragraph 21 states that in 2015, the said property was valued at approximately Kshs 24 million and produced an invoice dated 9 March 2015 by the developers in support thereof which is a direct response to the said allegations by the Defendants. This in the courts view, is not new evidence. 18

page 18 of 21

72. Regarding the property Kwale/Mwangunda/932, the Defendant stated that the same was purchased for Kshs. 600,000/= and in rebuttal, the Plaintiff states that the same was acquired for Kshs. 700,000/= and produces the sale agreement dated 21 January 2011 executed by the 1st Defendant in paragraph 23 of the Further Affidavit. This is not new evidence but information within the knowledge and custody of the 1st Defendant. 73. As regards paragraph 35 of the Further Affidavit, the court notes that the contention relates to introduction of the witness statement from the 2 nd Defendant regarding the operations of the 3rd Defendant. The Plaintiff seek to rebut the proposition that the 2 nd Defendant was neither aware nor involved in the operations of the 3 rd Defendant in response to Paragraph 40 of the Supporting Affidavit. The said statement is dated 9 March 2018 and 2nd Defendant will have an opportunity to rebut or challenge it during hearing. 74. The Defendants contends that the Plaintiff attempts to change the character of the case in paragraphs 38(ii) and 47 of the Further Affidavit alleging that most properties were developed over the years, the sources of funds unexplained and suspected to be proceeds of corruption. However, the court finds that the said paragraphs directly respond to matters raised in paragraph 41, 49, 54 and 55 of the Replying Affidavit and do not change the character of the suit or introduce new matters not pleaded by the Defendants. 75. Regarding Account No. 0161379611 in the name of the 3 rd Respondent, Defendants in paragraph 58 of the Replying Affidavit averred that no problematic deposit was shown by the Plaintiff. In response thereto, the Plaintiff averred paragraph 50 (ii) of the Further Affidavit to show that the huge deposits are inconsistent with operations of legitimate business. The information in paragraph 50 (ii) is extracted from the Bank Statements in the attached to the Originating Summons, is a a direct response to the Defendants averement in paragraph 58 of the Replying Affidavit and does not raise any new issues. 76. Paragraph 53 of the Further Affidavit was challenged on grounds that it attempts to introduce portfolio valuations of shares in order to plug holes that had been poked by 19

page 19 of 21

the defence. According to the Plaintiff, paragraph 53 is a direct response to paragraph 61 of the Replying Affidavit that disputed the shares stated by the Plaintiff in the Supporting Affidavit and the valuation thereof. These are issues raised in the Originating Summons and contested by the Defendants in the Replying Affidavit and hence do not constitute new matters. 77. As regards Paragraph 54, the court notes that issue concerning the transactions that occurred while the 1st Defendant was in employment at Kenya Ports Authority and also a Kenya Revenue Authority was pleaded in paragraph 18 of the Supporting Affidavit sworn on 20 July 2028. The Defendants in paragraph 65 of the Replying Affidavit contested the said averments and thus the Plaintiff sought to rebut that proposition under Paragraph 54. These are not new matters outside the scope of the court’s order. 78. The court finds that the issues contained in the impugned paragraphs of the Further Affidavit are not new and do not change the character of the suit. Further, hearing has not commenced and pursuant to Sections 55 (4) (a) and (b), (5) and (6) of ACECA, the parties will have an opportunity to adduce and challenge evidence in support or rebuttal of any allegation in the case. 79. The court is guided by Article 159 (2) (d) of the Constitution which dictates that justice must be administered without undue regard to procedural technicalities and Section 1A and 1B of the Civil Procedure Act which require courts to handle civil matters with the aim of promoting substantive justice, and calls for the exercise of its inherent power to ensure the ends of justice are met. See Barclays Bank of Kenya (now ABSA Kenya PLC) vs Commissioner of Domestic Taxes, Petition (Application) No. 12 (E014) of 2022 where the SC in exercise of its inherent power to ensure the ends of justice allowed the filing of a Supplementary Affidavit on the grounds that it would help the Court define the real issues in controversy and that the Respondent would have the opportunity to respond to the averments therein in the main appeal. 80. I therefore find and hold that the impugned paragraphs 18(i), 19(ii) and (vi), 21, 23, 35, 38(iii), 39 (i), (ii) and (iv), 47, 50(ii), 53 and 54 of the Further Affidavit dated 14 July 20

page 20 of 21

2023 were made in response to the Defendants Replying Affidavit dated 13 June 2023 and was within the scope of the leave granted by this court. Disposition 81. For the foregoing reasons, the court orders are follows; a) The Notice of Motion Application dated 17 February 2025 lacks merit and is hereby dismissed. b) The Chamber Summons Application dated 16 April 2025 lacks merit and is hereby dismissed. c) Costs in respect of both applications shall be in the cause. d) The Originating Summons dated 20 July 2018 shall be heard on priority. Signed, dated and delivered virtually at Nairobi on this 14 th day of July 2026 JOSEPH KIPKOECH BIOMDO JUDGE 21

page 21 of 21