Kenya Commercial Bank(kenya) Limited v Francis Kimathi Mbaabu (Suing as Legal Representative of the Estate of Peter KARIITHI-Deceased) & 1 other

5. The 1st Respondent opposes the application through a Replying Affidavit sworn on 29th June 2026. In addition, the 1st Respondent has raised a Notice of Preliminary Objection of even date. 6. The Preliminary Objection contends that the application has been overtaken by events because the decretal sum has already been paid over to the decree-holder. Since the Preliminary Objection, if successful, would dispose of the application in limine, it is appropriate that it be determined first. PRELIMINARY OBJECTION 12. The 1st Respondent contends that the application is incompetent because the decretal sum has already been received, applied, and disbursed to the decree-holder. Consequently, it is argued that there is no longer any identifiable fund capable of preservation and that the application has therefore been overtaken by events. 13. The Appellant disputes that assertion. It maintains that there is no satisfactory evidence demonstrating that the monies have in fact been transferred from the advocates' client account. 14. It further submits that the question whether the funds remain available is itself a contested issue of fact incapable of determination by way of a preliminary objection. 15. The law governing preliminary objections is now settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated that: "A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit." 16. Sir Charles Newbold P further observed that: "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law... It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." Page 2 of 6

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17. These principles have been consistently reaffirmed by the superior courts, including in Oraro v Mbaja [2005] eKLR.Ojwang J. (as he then was) observed that a preliminary objection cannot be founded upon contested factual matters requiring evidentiary investigation. 18. The gravamen of the Preliminary Objection is that the decretal sum has already been disbursed and is therefore no longer capable of preservation. Whether that assertion is true is not apparent from the pleadings alone. 19. It requires the Court to interrogate the evidence placed before it, evaluate the documents exhibited by the parties, determine whether the alleged disbursement actually occurred, and assess whether the funds remain within the custody or control of the advocates. 20. Those are plainly questions of fact. The Appellant expressly disputes the alleged disbursement and contends that the evidence relied upon by the 1 st Respondent falls short of proving that the funds have actually left the advocates' client account. 21. Once a court is invited to examine affidavit evidence and resolve contested factual issues, the matter ceases to be a proper preliminary objection within the meaning of Mukisa Biscuit. Accordingly, I find that the objection does not raise a pure point of law. It is therefore incompetent and is hereby dismissed. 20. The Court shall now proceed to determine the application on its merits. WHETHER THE COURT SHOULD GRANT PRESERVATORY ORDERS 21. The application seeks preservation of the decretal sum pending determination of the appeal. Unlike an interlocutory injunction sought before trial, an application of this nature is made within the Court's appellate jurisdiction. 22. The governing consideration is therefore not merely whether the traditional principles in Giella v Cassman Brown & Co. Ltd [1973] EA 358 have been satisfied, but whether the Court should preserve the subject matter of the appeal to ensure that the appellate process is not rendered nugatory. 23. The jurisdiction of this Court to grant such relief flows from Sections 1A, 1B, and 3A of the Civil Procedure Act.These provisions obligate the Court to facilitate the just, Page 3 of 6

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expeditious, proportionate, and affordable resolution of disputes while preserving the efficacy of its appellate jurisdiction. 24. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal held that the Court's discretion pending appeal should be exercised in a manner that does not render an appeal nugatory.Similarly, in RWW v EKW [2019] eKLR, the Court observed that interim preservation orders are intended to maintain the subject matter of litigation pending final determination so that the rights of the parties are not defeated before the appeal is heard. 25. The central question therefore is whether preservation of the decretal sum is necessary in the interests of justice. (a) Whether the appeal is arguable 26. At this interlocutory stage, the Court is not called upon to determine the merits of the appeal. It is sufficient that the appeal raises bona fide questions deserving judicial determination. The Memorandum of Appeal challenges, among other matters, the legality of the garnishee orders absolute issued by the subordinate court despite the alleged statutory moratorium affecting the judgment debtor. 27. The Appellant further contends that, as garnishee, it settled the decretal amount under compulsion to avoid attachment of its own assets and now challenges the legality of those proceedings. Without expressing any concluded opinion on the merits, I am satisfied that the appeal raises substantial questions of law and fact which cannot be described as frivolous. The appeal is therefore arguable. (b) Whether the decretal sum remains capable of preservation 28. The principal issue raised by the Respondent is that the application has been overtaken by events because the funds have already been released to the decreeholder. The burden of proving that assertion lies upon the Respondent. Sections 107 and 109 of the Evidence Act provide that the party asserting the existence of a particular fact bears the burden of proving it. 29. The Respondent has produced an acknowledgment receipt allegedly signed by the decree-holder confirming receipt of the decretal amount. While the Appellant correctly points out the absence of objective banking records such as RTGS Page 4 of 6

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confirmations or bank statements, the existence of a signed acknowledgment receipt cannot be entirely ignored at this interlocutory stage. 30. For an order of preservation to be effective, there must be a res (a subject matter) capable of being preserved. If the funds have indeed left the hands of the advocates and reached the decree-holder as suggested by the receipt an order restraining the advocates from "transferring or releasing" said funds would be a senseless. 31. The Appellant bears the ultimate burden of proving that the funds are still available for preservation. In the face of the Respondent’s assertion of disbursement supported by an acknowledgment of receipt, the Appellant has failed to demonstrate that the funds are available and within the control of the Respondent's advocates and that this Court can effectively freeze or order the same to be moved into a joint account. 32. Consequently, the Appellant has failed to place before the Court sufficient evidence to demonstrate that the funds/decretal sum remain capable of preservation. (c.) Whether preservation is necessary 33. Consequently, having found that the Appellant has failed to demonstrate the availability of the funds/decretal sum capable of preservation to issue preservatory orders over funds that, on a balance of probabilities, have already been applied to the decree, would be an exercise in futility and would not serve the interests of justice. 34. In view of the foregoing considerations and having carefully considered the application, the affidavits on record, the rival submissions and the applicable law, I arrive at the following conclusions; 1) The Preliminary Objection dated 29th June 2026 is hereby dismissed. 2) The Appellant’s Notice of Motion dated 24th June 2026 is hereby dismissed. 3) Costs of the application shall abide by the outcome of the appeal. 35. It is so ordered. Delivered, Dated and Signed at MERU on this 7th day of July 2026. Ruling delivered through Microsoft Teams Online Platform Page 5 of 6

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DK RONO JUDGE Page 6 of 6

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