Kenya Anti-Corruption Commission v James Mwathethe Mulewa & another [2017] eKLR
Case Caption:
Misc. Application No. 93 OF 2011; Kenya Anti-Corruption Commision v James Mwathethe Mulewa, Shakrat Company Limited.
Case URL:
N/A
Summary Significance:
Standard of proof in asset recovery suits is on a balance of probability.
Applicable laws:
Section 26 and 55 of the ACECA
Brief Facts:
The Plaintiff received information to the effect that the 1st Defendant, the then Managing Director, Kenya Ports Authority (KPA) had assets well beyond his known legitimate sources of income. The Plaintiff carried out investigations into allegations that the 1st Defendant was engaged in corruption and economic crimes i.e. between 05/08/2008 to 20/05/2010 relating to allegations of irregularities of tenders valued at over Kshs. 1 Billion. Further, it suspected that the 1st Defendant was guilty of abuse of office in relation to his irregular approval of travel allowances together with other related offences.
The Plaintiff further contended that between August 2008 and May 2010, the 1st Defendant made deposits of Kshs. 41,290,000 in cash and Kshs. 24,601,274 in cheques totaling to Kshs. 65,891,274 in his various bank accounts excluding his salary. Further, the Plaintiff claims that the 1st Defendant during the aforementioned period also acquired the suit properties herein in his name and in the name of his son, these amounted to unexplained assets according to the law.
The Plaintiff then issued the 1st Defendant with two statutory notices pursuant to section 26 of ACECA requiring him to explain how he acquired the assets. The 1st Defendant’s explanation to the Plaintiff was not satisfactory and hence the present suit.
Issues for Determination:
I. Whether the 1st Defendant was in possession of unexplained assets.
II. Whether the unexplained assets should be forfeited to the state.
Holding:
The court held that the Plaintiff had proved their case on a balance of probability that MN/1/13483 Vacant Plot, Nyali valued at Kshs. 5,000,000 and MN/1/15351 Four Bedroom Maisonette Bandari Villas valued at Kshs. 6,000,000/= were unexplained assets. Therefore, their value should be paid to the Government of Kenya as required by Section 55 (6) of the Anti-Corruption and Economic Crimes Act.
It was further held that the 1st Defendant do pay the Government of Kenya Kshs. 63, 683,794 being the cumulative bank deposits made by the Defendant between 31st August 2008 and 20th May 2010 and Kshs. 11,000,000 being the value of immovable properties both of which constitute immovable property. The Plaintiff was also awarded costs of the suit.
