Ethics and Anti-Corruption Commission v Thomas Gitau Njogu & 4 others [2019] eKLR

Case Caption:

ACEC Suit No. 21 of 2018; Ethics and Anti-Corruption Commission v Thomas Gitau Njogu, Teresia Njeri Gitau, Njegit Investments Limited, Teresia Njeri Gitau T/A Wangmug Enterprises, Teresia Njeri Gitau T/A Njetash Enterprises.

Case URL:

http://kenyalaw.org/caselaw/cases/view/187127

Summary Significance:

In unexplained assets suits, the law is not strictly looking at direct punishment of the property owner but rather, it is looking at the guilty property and not the property owner’s guilt or innocence in the strict criminal sense.

Applicable laws:

●Article 252 of the Constitution of Kenya 2010.
●Section 2 and 55 of the Anti-Corruption and Economic Crimes Act (ACECA) of 2003.
●Section 11(1)(j) of the Ethics and Anti-Corruption Commission Act (EACCA) of 2011.

Brief Facts:

The Plaintiff received information that the 1st Defendant had engaged in corrupt conduct leading to acquisition of assets beyond his known legitimate sources of income. An investigation was commenced particularly following allegations of embezzlement and/or misappropriation of public funds through accessing unauthorized petty cash (“buffer cash”) by virtue of his position as a Senior Assistant Accountant General. It was established that between 1st January 2016 and 31st August 2017, the 1st Defendant had made cash deposits into various bank accounts held by the 2nd, 3rd, 4th and 5th respondents totaling to Kshs 111,681,931.98 an amount that exceeded his salary or legitimate sources of income. Further and during the same period, the 1st Defendant had acquired in his name or through proxies or agents various landed properties, a motor vehicle and money all of which according the Plaintiff, amounted to unexplained assets. Upon completion of investigations, the Plaintiff issued a statutory notice to the 1st, 2nd and 3rd Defendants, requesting them pursuant to the provisions of Section 26 and 55 of the ACECA, to furnish the Plaintiff with written statements enumerating their properties. They further sought documentation supporting how and when they were acquired. That in response, the 1st, 2nd and 3rd Defendants through their letters dated 16th April 2018 declined to explain the said disproportion It is on that basis that the Plaintiff filed the presented suit seeking a determination whether the respondents are in possession of unexplained assets pursuant to the provisions of the Anti-Corruption and Economic Crimes Act No. 3 of 2003.

Issues for Determination:

I.Whether the plaintiff has proved to the required degree that the subject assets/funds constitute or amount to unexplained properties/assets in accordance with Section 55 of ACECA.
II.If the answer to (1) above is yes, whether the court should forfeit them to the State.

Holding:

The Court held that in suits for forfeiture of unexplained assets, it does not matter whether the assets in question had a direct link to a criminal conduct. It does not matter that there was no complaint from the Defendant’s office. It is also immaterial that there was no allegation of any misconduct capable of disciplinary action or otherwise. One can be clean on the face of it like a pope but behind the scenes, there are invisible and untold negative stories. The key objective in legislating ACECA was informed from the view point that some actors in the criminal world are smart in the manner in which they carry out their criminal activities leaving no trail of evidence to secure a conviction in a criminal case whose threshold on a burden of proof is higher than in a civil case. Under ACECA, you cannot escape criminal prosecution and continue enjoying the fruits of your criminal activities. Once the Commission establishes reasonable grounds to suspect that the property in one’s possession cannot be explained, the burden easily shifts to the possessor of the property to justify the means by which he or she acquired the targeted assets. Further, the key objective of forfeiture proceedings principally is to cripple or inhibit criminal activity and therefore has an effective remedial effect. It is also intended to counter the rapid growth of crime both nationally and internationally, organized crime, money laundering, criminal gang activities and racketeering which present a danger to public order and safety and therefore, threaten economic stability and the rights of all. In this case the law is not strictly looking at direct punishment of the property owner but rather, it is looking at the guilty property and not the property owner’s guilt or innocence in the strict criminal sense. The court found that the Plaintiff had proved its case on a balance of probability in relation to unexplained properties held by the Defendants and made orders for forfeiture as prayed.

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