AFRICAN Spirits Limited is seeking recourse against the freezing their banks accounts and those of nine other companies through an order obtained in a Kiambu law court by the Director of Public Prosecution (DPP).
The firm says the order is not only illegal, unlawful and incorrect but has also been abused.
It contends further that the order freezing the accounts at Kenya Commercial Bank(KCB) and National Bank respectively for 90 days was issued after a similar request had been rejected at the Milimani law courts.
They were frozen on allegations of investigations into failure to pay tax amounting to Ksh41 billion which already formed the subject of a criminal case brought against billionaire businessman Humphrey Kariuki and his co- directors.
Veteran lawyer Cecil Miller told Justice Jessie Lessit the request is urgent and ought to be dispensed with “as the order obtained by the DPP, have affected parties who are not subject to the criminal case pending before the Chief Magistrate’s court.”
” The orders ought to be set aside as they have caused great prejudice to innocent parties and especially the workers who need to be paid their salaries and the same were issued without jurisdiction and through forum shopping,” he charged.
Miller said the DPP concealed material facts while making a presentation at the Kiambu court.
Africa Spirits Limited has moved to court challenging an order to freeze its accounts and those of nine other companies, arguing that the action was unlawful, incorrect, illegal and improper.
The firm contends that the order to freeze the accounts for 90 days was issued in Kiambu on August 16 2019 following a a rejection of a similar request by the Director of Public Prosecutions at the Milimani Law Courts.
In court papers filed by Oluoch Olunya and Associates, Africa Spirits declares that the DPP’s application to freeze the bank accounts before a magistrate’s court at the Milimani Law Courts was declined on August 9 2019.
Despite refusal to grant the order, the firm says the DPP served the orders on Kenya Commercial Bank restraining, freezing and preserving the accounts falsely implying that it was valid court order issued by the court.
The firm adds that the order in Kiambu was issued without the other affected parties being enjoined in the case.
The company says the application before the court in Kiambu was made without disclosing the existence of the application in Milimani – which was declined – and amounts to an abuse of the legal process by the DPP.
“The application in Kiambu was made on August 16, 2019, only seven days after a similar application to freeze the applicants bank accounts was denied ex-parte on August 9, 2019,” the suit papers state.
Africa Spirits contends that the order issued in Kiambu is illegal as it purports to freeze bank accounts of persons who are not parties to the application to freeze its accounts.
“The prayers sought did not include the preservation of bank accounts, yet the orders extracted included the preservation of bank accounts or persons not made parties to the application for a period of 90 days.”
Miller who was leading the team of advocates acting for Africa Spirits Limited told the court they were ready to proceed with the matter.
Assistant Director of Public Prosecution Catherine Mwaniki however told the court that magistrates from Nairobi and Kiambu who are listed as respondents in the matter were not represented in court by the Attorney General.
Miller told the court that all parties in the case had been served with the suit papers.
Justice Jessie Lessit ,however asked that all parties in the case to be served again with the suit papers, before the matter returns to court.
In the court papers, Africa Spirits Limited argues that unless the order to freeze accounts if the nine firms is lifted, it will cause damage to the companies in addition to the loss, harm and dignity the employees, supplies and creditors will suffer.
Africa Spirits says the police were purporting to be investigating its directors, yet they sought and obtained orders against parties that are neither directors not shareholders in the firm.
The matter is due back in court on September 17.