Ethics & Anti-Corruption Commission Vs Jimmy Mutuku Kiamba & 3 others; Equity Bank Ltd (Interested Party) [2019] eKLR
Case Caption:
ACEC No. 1 of 2016; (formerly Civil Suit No. 33 OF 2016 (O.S)); Ethics and Anti-Corruption Commission v Jimmy Mutuku Kiamba, Tracy Mbinyu Musau, Jimbise Limited, Muthaiga Green Acres Limited, Equity Bank Limited (Interested Party).
The court upheld the threshold for existence of unexplained assets as set out under section 2 and 55 (2) of the Act
Applicable laws:
Section 2, 26 and 55 of the Anti-Corruption and Economic Crimes Act of 2003.
Brief Facts:
The Plaintiff commenced a suit for forfeiture of the 1st Defendant’ assets accumulated within the period he served as city treasurer, city council of Mombasa (2009 – 2011) and City Council of Nairobi (between 2011 and 2013), and Chief Officer Finance at Nairobi City County whose value was disproportionate to his know legitimate sources of income.
During the period under investigation, the 1st Defendant is alleged to have accumulated assets to the tune of over Kshs. 1billion whereas his known legitimate income – largely salary from the Government amounted to Kshs. 5,821,309/=
In view of this apparent disproportion, the Plaintiff issued a statutory Notice under Section 26 of ACECA. The 1st Defendant gave an explanation of what he called perceived disproportion via his letter to EACC dated 30/03/2015. Dissatisfied with the explanation provided, the Plaintiff moved the court seeking forfeiture of Kshs. 872,094,147/- which it considered as unexplained.
Issues for Determination:
Whether the Defendants are in possession of unexplained assets.
Holding:
The court in making its determination adopted the criteria laid down in the case of Stanley Mombo Amuti vs Kenya Anti-Corruption Commission (2018) eKLR. In the stated case, the Court of Appeal was of the view that a reading of section 2 and 55 (2) of the Act establishes the threshold for existence of unexplained assets and stated that; there must be a set time period for the investigation of a person, the person must be reasonably suspected of corruption or economic crime, the person must have assets whose value is disproportionate to his known sources of income at or around the period of investigation, and that here is no satisfactory explanation for the disproportionate asset.
The Court held that the Plaintiff had established on a balance of probability, that the cash deposits attributed to business proceeds from cattle, wheat, maize, and transport and quarry by the 1st Defendant constituted unexplained assets. Further, the payment of Kshs. 3,000,000/- allegedly from the firm of Kwanga Mboya Advocates also form part of the assets that were to be forfeited to the State.
Subsequently, the following items were ordered by the court to be forfeited to the state by the 1st Defendant: the sum of Kshs. 282,648,604/=; the sum of Kshs. 35,000,000/=, in whose default the property LR.No.7785/605 (original Number 7785/10/430 I.R 56556 Runda Water Estate) would accrue. While giving its verdict, the Court emphasized that a person has a right to own assets and property of their choice but they should be able to explain their source when called upon.
