The Supreme Court has dismissed appeals by the Ethics and Anti-Corruption Commission (EACC) and the Assets Recovery Agency (ARA), affirming that state agencies must establish a clear connection between property and criminal activity before seeking forfeiture under the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA).
In a landmark judgment, the apex court upheld an earlier Court of Appeal decision that had overturned orders forfeiting Sh19.6 million held in three bank accounts belonging to Pamela Aboo.
The case stemmed from investigations launched in 2017 after ARA received information alleging that funds in Aboo’s Equity Bank accounts were proceeds of crime.
Investigators suspected the accounts were being used to channel illegal funds linked to her husband, Alex Mukhwana Khisa, a Kenya Revenue Authority (KRA) officer who had been investigated over alleged bribery and tax-related corruption claims.
The agencies argued that Aboo had failed to provide sufficient proof that the money originated from legitimate businesses. The High Court agreed and ordered the forfeiture of the Sh19,688,152.35 to the government.
However, the Court of Appeal reversed that decision, finding that investigators had failed to prove a connection between the money and any criminal activity.
The matter eventually reached the Supreme Court. In its ruling, the Supreme Court emphasised that suspicion alone is not enough to justify forfeiture.
“The property in question must be connected to some criminal offence or constitute proceeds of crime,” the judges held.
The court further stated that under POCAMLA, ARA must establish “a nexus between the subject matter of forfeiture and a crime or its intended commission” before a forfeiture order can be granted.
The judges found that while investigators were suspicious of the large deposits in Aboo’s accounts, they failed to demonstrate that the money was obtained through criminal conduct.
“There is nothing on record to show that the funds were used in the commission of a crime,” the court said.
The bench noted that Aboo had explained that the funds came from her businesses dealing in agricultural produce, transport, perfumes and cereals, and had provided details of her business associates. The agencies, the court observed, did not adequately investigate those explanations.
Questioning the evidentiary basis of the forfeiture claim, the court asked: “Where is the incidence of crime in the entire chain of events that triggered the forfeiture proceedings?”
The judges concluded that there was no evidence linking the Sh20 million to criminal activity and held that the forfeiture proceedings should not have succeeded.
The ruling now sets a significant precedent on the burden of proof required in civil asset recovery cases, drawing a distinction between proceeds of crime cases under POCAMLA and unexplained wealth proceedings under the Anti-Corruption and Economic Crimes Act.
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