Ethics and Anti-Corruption Commission v Jamal Bare Mohamed [2019] eKLR

Case Caption:

The High Court of Kenya at Nairobi; Anti-Corruption and Economic Crimes Division; ACEC No. 63 of 2017; Ethics and Anti-Corruption Commission v Jamal Bare Mohamed.

Case URL:

http://kenyalaw.org/caselaw/cases/view/173008

Summary Significance:

Forfeiture of unexplained assets is a civil process provided under Section 55 of ACECA and unlike forfeiture under section 54 of the act, it does not require a conviction to succeed.

Applicable laws:

Article 20 of the United Nations Convention Against Corruption.
Sections 54 & 55 of the Anti-Corruption and Economic Crimes Act.

Brief Facts:

The Plaintiff (EACC) filed a suit for forfeiture of unexplained Assets by way of Originating Summons under section 55 of the Anti-Corruption and Economic Crimes Act (ACECA) against the Defendant. The defendant filed a preliminary objection challenging the court’s jurisdiction to hear the matter on the grounds that the Applicant had not satisfied all the mandatory conditions precedent to bringing a claim under section 55 of ACECA and that Article 20 of the United Nations Convention Against Corruption suggested that proceedings of this nature could not be initiated without a conviction for illicit enrichment.

Issues for Determination:

I.Whether the court had jurisdiction to hear the matter.
II.Whether the plaintiff satisfied the mandatory conditions precedent to bring a claim under section 55 of the Anti-Corruption and Economic Crimes Act.

Holding:

The court noted that the wording of this article is very simple and clear. The key words are “subject to its constitution and fundamental principles of its legal system” This phrase does not in any way show that the application is compulsory. Each State has to consider its constitution and fundamental principles of its legal system before criminalizing illicit enrichment. The state has enacted a robust legal regime for dealing with illicitly acquired assets which is no different from illicit enrichment. When one is in possession of illicitly acquired assets it means the person has illicitly enriched himself or herself. On the other hand, Section 55 of ACECA which is the provision under which the suit has been brought deals with forfeiture of un explained assets. This is clearly a civil forfeiture and the procedure is set out under the said section. It does not require a conviction for this action to be undertaken. Had that been the case the ACECA would have clearly stated so. The court was therefore persuaded that the civil forfeiture is different from criminal forfeiture. In the former the court deals with the element of possession of unexplained illicitly acquired assets. In the latter the court deals with the commission of a crime which resulted in the acquisition of the illicitly acquired assets. That being the case there must be a conviction for the operation of section 54 of ACECA to take off. On the other hand, section 55 of the ACECA is not founded on any conviction. The court found that the suit was properly before it and dismissed the preliminary objection with costs.

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