Assets Recovery Agency v Lilian Wanja Muthoni Mbogo t/a Sahara Consultants & 5 others [2020] eKLR

The making of an order of forfeiture under section 92 of POCAMLA was not dependent on the outcome of criminal proceedings or of an investigation done with a view to instituting such proceedings. All that was required was proof that a party had funds or assets which, on a balance of probabilities, were proceeds of crime. Once the Applicant established that, the onus was on the Respondents to show that the funds or assets had a legitimate source Section 92(4) of POCAMLA made it clear that the validity of a forfeiture order was not affected by the outcome of criminal proceedings or of an investigation with a view to institute such proceedings, in respect of an offence with which the property concerned was in some way associated. Therefore, the Applicant was not required to show on prima facie basis that an offence had been committed. The Applicant also demonstrated that the Respondents’ bank accounts received funds during the period to which the investigations and criminal proceedings related and that the Respondents were unable to show that the funds had a legitimate source. On a balance of probabilities, they had established that the Respondents had funds which were suspected to be proceeds of crime. The Respondents were accorded an opportunity to explain the source of their funds. The Respondents were unable to show a legitimate source for the funds deposited in the ten accounts that were the subject of the forfeiture application. Once the Applicant established on a balance of probabilities that the Respondents had funds in their accounts for which they not been able to show a legitimate source, the onus was on the Respondents to satisfy the court that the assets and funds held in their accounts were not the proceeds of crime. The Respondents had large sums of money in their bank accounts for which they were unable to show a legitimate source. The only conclusion that could be made under the circumstances, was that the funds were proceeds of crime as defined in POCAMLA. POCAMLA and the entire legal regime related to recovery of proceeds of crime and unexplained assets had the underlying premise that, crime and corruption were undertaken in a labyrinthine, secretive manner, that it was possible that the funds would not be directly traced to the crime. While investigations could be carried out and some alleged perpetrators charged and subjected to trial, a conviction was not always the result, yet, the Respondents could have in their possession substantial funds and assets for which they were not able to show a legitimate source Article 40 of the Constitution guaranteed the right to property. The making of a forfeiture order where the Respondents had money for which they were unable to show a legitimate source, and was therefore the proceeds of crime, did not violate the Respondents’ right to property. The forfeiture application was a process provided for in part VIII of POCAMLA and it was not dependent on the outcome of a criminal prosecution or investigation. There was therefore no violation of the right to a fair hearing or the right of access to justice. A conviction was not a precondition for civil proceedings under Part VIII of POCAMLA, or for the making of a forfeiture order. Section 92(4) of POCAMLA clearly stated that the validity of such an order was not affected by the outcome of criminal proceedings or investigations about the offence relating to the property in question. Application allowed. Costs to be borne by the Respondents.