Lawyer Nyachoti seeks to withdraw from Sh145 billion KCB case

 

A lawyer representing an investment firm in a row over Sh145 billion cash with Kenya Commercial Bank (KCB) has moved to court, seeking to withdraw representation.

Phillip Nyachoti, in his application filed before the Commercial High Court, states that despite Foxcapital Investment Limited instructing him to pursue KCB on its behalf, the company had gone quiet, making it difficult to proceed with the case.

“Despite several requests, the plaintiff (Foxcapital) has failed to furnish the firm with further, accurate and sufficient instructions in the matter, in light of the contents of the several affidavits and documents in this case by the defendant, in response to the plaintiff’s application dated August 3, 2026,” argues Nyachoti, adding, “As such, the firm is not in a position to continue acting for and on behalf of the plaintiff for want of further, accurate and sufficient instructions; hence this application.”

The lawyer says his law firm filed the case on August 3, 2026, after which the court issued temporary orders in favour of Foxcapital and extended the same until September 17, 2026.

The Commercial Court in Nairobi barred Kenya Commercial Bank from interfering with the Sh145 billion at the centre of the dispute with the investment firm.

Justice Rhoda Ruto issued the orders after Foxcapital Investment Limited sued the lender, accusing it of withholding funds wired by a Swiss company for six months without explanation.

“Pending the hearing of this Application inter-parties, the defendant or respondent whether by itself, its servants, employees and/or agents be and is hereby restrained from trading with, interfering with, transferring, meddling and or dealing with any manner whatsoever and howsoever with the foreign inward EUR 978,675,835.00 remittance (being the equivalent of Sh145 billion at the prevailing exchange rates as at the time of filing this suit) being held by the defendant or respondent in a ‘held – pre-settlement suspense’ status under Incident No. KCB-FIN-IT-2026-0417 for the credit and benefit of the plaintiff or applicant,” ruled Justice Ruto.

However, the lawyer states that he has not received any further information to respond to the bank’s reply from the company.

The judge issued the orders as KCB claimed that it does not have the money.

Its lawyers, Renson Ondieki and Kiragu Kimani, argued that Fox Capital had not proved that the money had been received by the bank.

“The balance of convenience tilts against the grant or continuation of the orders sought, which would effectively require the defendant to treat and preserve EUR 978,675,835 as funds belonging to the plaintiff before the plaintiff has established that such funds

were ever received by or are held by the defendant,” argued Kimani.

At the same time, Kimani argued against issuing the orders saying that there was no suggestion that his client would be unable to pay damages in the event it is found culpable.

Foxcapital Investment Limited, in the case, accused the bank of illegally withholding Sh145 billion that was sent to it by Bay Bionics Limited, a firm based in Switzerland, to invest in Treasury bonds, public-private partnerships, and renewable energy projects.

According to Foxcapital, the money was allegedly wired to the bank on November 28, 2025, and the bank confirmed receipt of the money.

Foxcapital stated that it expected that the bank would remit the money after its internal banking fraud team cleared the transaction.

“The plaintiff avers that the defendant’s continued withholding of the funds, despite having successfully received the inward 978-million-Euro remittance, is unlawful, arbitrary, unreasonable, and in breach of its contractual and fiduciary obligations owed to the plaintiff as its customer,” said Foxcapital’s director David Dudi.

Dudi further said that the money was intended to fund time-sensitive investments.

He claimed that despite the lender being aware that UBS Switzerland AG, the remitting bank, was threatening to sue and escalate the issue to the Bank for International Settlements (BIS) and the European Central Bank, the lender remained mum.

“Despite receiving the funds, the respondent has, for over six months, without any lawful justification and/or reason, refused to credit the applicant’s account, notwithstanding that its own internal records confirm the transaction was duly cleared by its anti-money laundering compliance department and its IT security department, and that no adverse findings exist,” argued Dudi.

He said Foxcapital had agreed with Bay Bionics on October 21, 2025, for financing. Bay Bionics was incorporated in England and Wales.

Following the deal, Dudi said, KCB required that Foxcapital provide all the supporting

The case will be heard on September 17.