Ethics and Anti-Corruption Commission v Salome Ludenyi Munubi & 2 others [2020] Eklr

Case Caption:

ACEC. No. 16 of 2018; Ethics and Anti-Corruption Commission v Dr. Salome Ludenyi Munubi, Sostenah Ogero Taracha, Priscilla Nyambura Kamande Alias Rispah Bwari.

Case URL:

http://kenyalaw.org/caselaw/cases/view/193147

Summary Significance:

Breach of some rules of procedure or omissions which do not affect or prejudice the substance of the suit or the interest of a party should not be allowed to curtail the attainment of substantive justice.

Applicable laws:

Sections 2, 26 and 55 of the Anti-Corruption and Economic Crimes Act 2003.

Brief Facts:

This was a case of irregular compensation of land following compulsory acquisition of land along the Standard Gauge Railway Line (SGR) by the Government through the National Land Commission (NLC). The Plaintiff commenced investigations against officers of the NLC on receipt of information that the officers engaged in fraudulent, fictitious and inflated compensation for land compulsorily acquired for the Government through the NLC for the SGR project. Investigations established that 1st Defendant, in her capacity as Director Valuation & Taxation, was involved in a case of fictitious acquisition and illegal compensation of parcels of land known as LR. No. 9085, LR. No. 9086, LR. No 9087 and, LR. No 9088 situate in Embakasi, Nairobi County which parcels of land fell within the Kenya Railway line reserve and therefore not subject of compulsory acquisition. Further, the 1st Defendant acted in concert with the Chairman of NLC to perpetrate the fraudulent compensation of the subject parcels, and facilitated the unlawful compensations by executing the impugned instructions from the Chairman of NLC by preparing and forwarding ‘Project Affected Persons (PAPs) Payment Schedule’ for compensation of the aforesaid parcels in complete defiance of the decision by the Committee of Grants and Disposition Committee to revoke the subject parcels. Additional finding indicate that the said parcels fell within the Kenya Railway line reserve and therefore not subject of compulsory acquisition. In furtherance of the investigations, the Plaintiff obtained a search warrants, conducted a search on the 1st Defendant’s residence and recovered cash. The 1st Defendant was issued with a Notice under Section 26 of ACECA dated 16th May 2018, requiring her to give an explanation of the source of her assets including the money seized during the search. However, the 1st Defendant’s explanation to the Plaintiff was not satisfactory as to the source of the money. Therefore, in exercise of its mandate, the Plaintiff instituted forfeiture proceedings brought under Section 55 of ACECA.

Issues for Determination:

I.Whether the suit herein is defective by virtue of the amended Originating Summons filed on 28th November 2018 being supported by an undated supplementary affidavit sworn by Mr. Pius Mathiya.
II.Whether the seizure of the assets the subject of these proceedings was legally and properly done.
III.Whether the notice was issued against the 2nd and 3rd Defendants.
IV.Whether assets the subject of these proceedings amount to unexplained assets.

Holding:

The court relied on Section 1A of the Civil Procedure Act on the oxygen Principle and the underlying objective of Article 159 of the Constitution on procedural technicality in making a determination, and held that failure to date the affidavit in question was not prejudicial to the Defendants in any way. The court relied on the search warrant which authorized the Plaintiff to; “… search and take possession of all documents relating to the irregular and unlawful compulsory acquisition and compensation scheme in respect of the Standard Gauge Railway (SGR) project and any other documents / information that can facilitate conclusion of the ongoing investigations.” The Court stated that the officers were allowed to collect any other relevant information including exhibits which could reasonably be used in the intended criminal or civil proceedings. As such, the search and seizure was within the bounds of the law. The court held that the notice was not prejudicial since the Defendants were given an opportunity to explain their sources of money before any action could be taken. The Court further noted the fact that the Defendants were given sufficient opportunity to respond to the allegations against them was sufficient to be notice thus satisfying the objective of Section 26 of ACECA. The judge relied on the decision in Stanley Mombo Amuti vs. Kenya Anti-Corruption Commission Civil Appeal No. 184/2018 (supra) where the Court of Appeal held that the evidentiary burden was on an individual to prove and offer a satisfactory explanation of the assets in question or forfeit such assets. Having found no sufficient or concrete explanation given as to the legitimate source of the money which was under normal circumstances unusual, it was held that the money in question was unlawfully obtained and the only nexus between these monies and the unlawful activity is that of money laundering. The Judge being satisfied that the Plaintiff has proved its case on a balance of probability against the 2nd and 3rd Defendants, judgment was entered against them jointly and severally. Further, that the money recovered from the 1st and 2nd Defendant’s house amounts to unexplained assets and that the same be forfeited to the state.

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