Muazu Bala v Asset Recovery Agency; Chief Executive Officer, Kenya Airways (Interested Party) [2020] eKLR

The court opined that forfeiture suits are independent of any criminal proceedings which may be instituted or ongoing against the person and are not dependent upon conviction. They are proceedings in rem against the property as opposed to proceedings against the person. The ARA need not prove any predicate offense so as to succeed at the civil forfeiture stage. The court further held that the Respondent was only supposed to satisfy the court that there were reasonable grounds to believe that the property in question was a proceeds of crime and or was to be used in a criminal activity. For the avoidance of doubt, paragraph 3 of the affidavit in support of the application for preservation of the cash, the subject matter of this application, disclosed the existence of a lower court matter. It stated as follows; ‘THAT on 7th December 2020 I filed an application before the Chief Magistrate Court pursuant to sections 118, 118A 119, and 121 (1) of the Criminal Procedure Code, Section 180 of the Evidence Act, and Section 53A(5) of the Proceeds of Crime and Anti-Money Laundering Act for search and seizure warrants to investigate and take into custody of the cash vide MISC. CRIMINAL APPLICATION NO. E028 of 2020 ASSET RECOVERY AGENCY v. MUAZU BALA AND KENYA AIRWAYS’. From the affidavit before the court, it was clear that the Respondent had made adequate disclosure of the existence of the case before the Chief Magistrates Court and therefore the Applicant’s contention on the material non-disclosure was devoid of merit. Based on the above analysis, the court found and held that the Applicant’s contention that the order was obtained on the basis of material non-disclosure lacked merit, as the court would still have issued the preservation orders even if the proceedings before the Chief Magistrate’s Court were ongoing, as the proceedings were civil in nature. The issue of whether or not the Applicant had made the required declaration was not relevant at that stage, as the application was before the court for the preservation of the subject matter therein, the source and legality thereof could only be determined during forfeiture proceedings if and when the same is filed by the Respondent. The application was therefore dismissed.