Asset Recovery Agency v Jane Wambui Wanjiru & 2 others [2019] eKLR

Case Caption:

In the High Court of Kenya at Nairobi; Anti-Corruption and Economic Crimes Division at Milimani; Miscellaneous application 53 of 2018; Asset Recovery Agency v Jane Wambui Wanjiru, Joseph Wanjohi, Sidjoe Manufacturers & Suppliers.

Case URL:

http://kenyalaw.org/caselaw/cases/view/172483/

Summary Significance:

In determining an application for review of preservation orders, the risk of dissipation of the asset(s) outweighs the inconvenience caused by the said orders to the Respondent.

Applicable laws:

Sections 81, 82, 89 & 90 of the Proceeds of Crime and Anti Money Laundering Act (POCAMLA)
Order 50 Rule 1 of the Civil procedure rules.

Brief Facts:

This was an application for review and to set aside ex-parte preservation orders issued on November 16th, 2018 against the Applicants in relation to funds and properties believed to be proceeds of crime, specifically involving illegal trade in wildlife trophies and narcotics from 2009 to 2018. The application was premised on the grounds that; the respondent failed to prove reasonable grounds to meet the requirements set out in section 82 of the POCAMLA 2009; that freezing of the accounts led to hardship and untold suffering in running their business operations; that the preservation orders were open-ended hence did not provide a specific time frame for conducting investigations.

Issues for Determination:

I.Whether the ex-parte orders were properly issued or merited.
II.Whether the Respondent (ARA) met the requisite statutory threshold to warrant issuance of the orders under Section 82 (2) POCAMLA.
III.Whether the Applicant had met the criterion for revision as set out under Section 89 (1) of the POCAMLA.

Holding:

The court held that the ex-parte orders issued were lawful and sanctioned by section 82 of the POCAMLA. The court emphasized that at the ex-parte stage, the judge’s duty is to determine whether there is prima facie evidence presented to warrant the issuance of such orders. The facts need not specifically describe corrupt conduct but must point to the probability of it. Therefore, the grant of the order does not require other pre-conditions and is meant to prevent the disposal, transfer, or concealment of the property in question. In this particular case, the court found that the undisclosed source of information leading to a search on the Applicant’s house resulting in the recovery of four elephant tusks was sufficient proof and that there was reasonable suspicion that the Applicants were involved in illegal trade whose proceeds are cleaned by their legal and legitimate trade. At this stage, the Respondents are not duty-bound to prove beyond reasonable doubt that the money in the frozen accounts is proceeds of crime. Regarding the variation, revision, or setting aside of the order, the court considered sections 90 and 89 of the POCAMLA. The court noted that freezing of the accounts did not halt the business as other accounts were still accessible, although insufficient to sustain the full value of the importation and wholesale business. The court also observed that the prohibition against the sale of land was not affected as forfeiture proceedings were ongoing. Consequently, the court did not find sufficient evidence of hardships that outweighed the risks contemplated in the preservation order. The application was dismissed with no orders as to cost.

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