Assets Recovery Agency v James Thuita Nderitu & 6 others [2020] eKLR
Case Caption:
In the High Court of Kenya at Nairobi; Anti-Corruption and Economic Crimes Division at Milimani; Civil Case 2 of 2019; Assets Recovery Agency v James Thuita Nderitu, Flagstone Merchants, FirstLing Supplies Ltd, Excella Supplies Ltd, Betty Martha Wajewa Omondi, Flagstone Co. Ltd & Interscope Tech & Services.
To expand the parameters of review under Order 45 of the Civil Procedure Rules, 2010 to circumstances in which parties wish to re-open their defenses would open floodgates for unsuccessful litigants.
Applicable laws:
Article 50 of the Constitution;
Sections 3, 3A, 63 (e), and 80 of the Civil Procedure Act.
Order 45 of the Civil Procedure Rules, 2010.
Brief Facts:
This was an application for review and setting aside of the Courtās judgment and order issued on 22nd April 2020 against the Applicants, that the money held in their various accounts as set out in the application dated 12th March 2019 was proceeds of crime and should be forfeited to the state. During the hearing of the application for forfeiture, the Applicant (ARA) established on a balance of probability that the money preserved in the Respondentās accounts was proceeds of crime. The Application for review was therefore premised on the ground that the Applicants lost an opportunity to adduce evidence showing that the funds were legitimate and not proceeds of crime on account of their counselās negligence.
Issues for Determination:
Whether the court should review its ruling dated 22nd April 2020 as prayed by the Applicants.
Holding:
The court held that, the Applicantsā argument, that the law on asset forfeiture was in its nascent stages and they should be excused for their previous advocateās failure to present evidence before the court, and given a chance to present that evidence in the matter afresh was untenable as the same did not fall within the ambit of āsufficient reasonā under Order 45(1) of the Civil Procedure Rules.
The court further stated that the Applicants elected not to address the factual basis of the application, confining themselves to the technical argument that the application was premature. That election, could not constitute āsufficient reasonā to justify a court reviewing its decision to admit the evidence that the Applicants were at liberty to present, but elected not to.
The second argument advanced in support of the application for review, was that the Applicants had new and important evidence that they could not have produced at trial with the exercise of due diligence because they were advised against producing it by their advocate. They further stated that they allegedly found documentary evidence, in their offices, on 20th April 2020. The Court however, considering the provisions of Order 45 of the Civil Procedure Rules which provides that an application for review may be made āfrom the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order madeā, noted that all the evidence was available and within the reach of the Applicants during the hearing of the suit for forfeiture.
The court further opined that the Applicants had every opportunity to present their case, and hence the application was an attempt to re-litigate a matter that had already been determined. The court was of the opinion that; this was being used as a chance to present a new line of defense after failing to do so when they had the opportunity. The court therefore held that expanding the parameters of review under Order 45 of the Civil Procedure Rules to circumstances in which parties wish to re-open their defenses would open floodgates for unsuccessful litigants.
The Application was therefore dismissed.
