In the High Court of Kenya at Nairobi; Anti-corruption and Economic Crimes Division; ACEC Miscellaneous Application No. 73 OF 2017; Asset Recovery Agency vs Pamela Aboo and Ethics and Anti-Corruption Commission (Interested Party)
An application seeking forfeiture orders against Kshs 19,688,152.35 as proceeds of crime and shift of evidentiary burden in prosecuting the case against forfeiture. The Court found that the Originating Motion was merited and allowed it in favour of the Applicant by declaring the said funds unlawfully acquired and subsequently issuing forfeiture orders.
Applicable laws:
Sections 81, 82, 90 and 92 of the Proceeds of Crime and Anti Money Laundering Act, 2009 (POCAMLA)
Brief Facts:
The Applicant (ARA) and Interested Party (EACC) carried out investigations and found that three bank accounts held at Equity Bank and operated by the Respondent were holding a total sum of Kshs. 19,688,152.35 deposited between 2015 and 2017, which funds were suspected to be proceeds of crime. There were no withdrawals made within the said period from the three bank accounts. The explanation given by the Respondent on the source of the huge sums of money in her bank accounts was not satisfactory to the Interested Party. The Applicant suspected that the Respondentās husband, one Alex Mukhwana who was an employee of Kenya Revenue Authority, was making the said deposits. When called upon to explain the sources of the funds, the Respondent failed to produce any documents which linked the funds in question to the existence of a legal business or trade.
Issues for Determination:
Whether the Applicant and the Interested Party had proved a case for forfeiture of the stated funds under POCAMLA and/or ACECA.
Holding:
The Court analyzed the deposits made by the Respondent in her bank accounts and held that the Respondent had not attempted to explain the source of her money either through the replying or supplementary affidavits filed. No evidence was tendered to demonstrate that the Respondent was doing business with Samson Waweru or Jonathan Kimindu as alleged and nothing stopped Samson Waweru and other business partners from swearing affidavits to support the Respondentās claims.
Further, the Court observed that as one fails to withdraw money from their bank account, it must be shown how they are surviving and the person must be ready to share the source of such huge deposits with the relevant authorities. When no satisfactory explanation is forthcoming, the Court will take it that the same was not lawfully acquired.
The Court opined that the moment the Applicant established through the bank statements that there were huge cash deposits, the burden shifted to the Respondent to explain the source. The Respondent had a clear duty to explain the source or sources of these huge deposits into her account which she has failed to do.
In referring to section 92(1) of POCAMLA and case of Director of Assets Recovery and Others, Republic vs Green & Others [2005] EWHC 3168 the court stated that forfeiture proceedings are civil in nature and therefore the standard of proof is on a balance of probabilities and quoted the said case as follows:
āIn civil proceedings for recovery under part 5 of the Act the Director need not allege the commission of any specific criminal offence but must set out the matter that are alleged to constitute the particular kind or kinds of unlawful conduct by or in return for which the property was obtained.ā
The Court also held that forfeiture under POCAMLA is not a violation of an individualās right to property under Article 40(6) of the Constitution as the rights acquired under Article 40 of the Constitution do not extend to any property that is found to have been unlawfully acquired.
The Court found the Originating Motion merited and allowed it by entering a judgment in favour of the Applicant. Kshs 19,688,152.35 held in the Respondentās bank account was declared proceeds of crime and forfeiture orders issued in terms of all the funds held in said bank accounts. The Court ordered forfeiture of the said funds to the Government of Kenya by transfer to the Applicant.ā
