Court extends interim orders preserving disputed Ksh.146.3B held by KCB bank

Justice Rhoda Rutto extended the orders after KCB sought additional time to file and serve its affidavits in response to Foxcapital’s application.

The orders bar KCB, its employees, servants and agents from transferring, trading with, interfering with or otherwise dealing with the amount held under a “HELD – PRE-SETTLEMENT SUSPENSE” status.

The funds are being held under Incident Number KCB-FIN-IT-2026-0417 and are said to have been received through an inward foreign remittance intended for the benefit of Foxcapital.

Foxcapital wants the court to compel KCB to release and credit the funds, or their equivalent in Kenya shillings, to its account at the bank’s Sarit Centre Branch.

According to court documents filed by lawyer Philip Nyachoti, Foxcapital entered into an agreement with Bay Bionics Limited, formerly BB Biotech AG Limited, for financing and implementation of strategic investment projects in Kenya.

The company says Bay Bionics undertook to provide EUR978,675,835 to finance high-impact national development projects, including infrastructure bonds, public-private partnership initiatives, renewable energy programmes and other strategic investments.

Foxcapital claims that on November 28, 2025, Bay Bionics, through UBS Switzerland AG, transmitted the funds to KCB for credit to its account number 1318634806 at the Sarit Centre Branch through a SWIFT MT103 transaction.

The company further claims that documents from UBS Switzerland AG confirmed the successful transmission, settlement and clearance of the funds.

According to Foxcapital, KCB’s own records show that the money was received by the bank on December 18, 2025, but was placed under a “HELD – PRE-SETTLEMENT SUSPENSE” status.

Foxcapital argues that despite providing KCB with documents relating to the transaction, the bank has failed or refused to credit the funds to its account.

The company accuses KCB of unlawfully and arbitrarily withholding the money, arguing that the bank is in breach of its contractual, statutory, fiduciary and common law obligations as its banker.

Foxcapital further alleges that KCB exposed it to substantial commercial and financial losses, reputational damage and potential litigation by failing to release the funds.

KCB, however, has opposed the application, arguing that Foxcapital has failed to establish a prima facie case with a probability of success.

The bank also argues that the losses alleged by Foxcapital are quantifiable and can adequately be compensated through damages should the company ultimately succeed in the suit.

KCB maintains there is no indication that it would be unable to satisfy any award of damages that may be made against it after the full hearing of the dispute.

The bank is therefore challenging the continued preservation of the funds pending determination of the substantive case.

For now, the court has maintained the interim protection over the EUR978.7 million, meaning the funds cannot be transferred, traded with or otherwise dealt with pending further directions.

The application will be heard on September 17, 2026, when the High Court is expected to consider the parties’ arguments on whether the funds should continue to be preserved pending determination of the dispute.