The Court of Appeal has allowed the Asset Recovery Agency and the EACC to challenge a decision that found Sh 19.6 million held in the account of former KRA Customs Department officer’s wife are not proceeds of crime.
Appellate judges Asike Makhandia, Kathurima M’Inoti and Mumbi Ngugi allowed the application by the two agencies to move to the Supreme Court to challenge the court’s majority decision that found the money in Pamela Aboo’s accounts to be legitimate.
The judges ruled that issues of corruption, economic crimes and money laundering pose existential threat to many nations and ours (Kenya) is not an exemption.
“We are satisfied that the ARA and EACC have demonstrated that the issues they wish to be considered by the apex Court transcend the circumstances of the parties herein and have a significant bearing on the public interest,” the bench ruled.
ARA and Ethics and Anti-Corruption Commission were aggrieved by the decision that reversed the forfeiture order of Sh 19,688,152.35.
The High Court had declared the said millions as proceeds of crime and forfeited them to the state. A move that triggered appeal by Pamela Aboo.
According to the Appellate judges, how to draw the correct balance between protecting the rights and freedoms of the individual and at the same time facilitating the detection and prosecution of debilitating crimes, in their view, deserves the benefit of the guidelines of the Apex Court.
“In particular, we bear in mind that the legislation in question is relatively new and is based on or informed by an international convention, thus raising the issues to matters of global interest,” the judges added.
The three judge-bench further noted that there was clearly divided opinion of the court on the correct interpretation and application of the statute.
“For the foregoing reasons, we are satisfied that this application has merit. We allow the same and grant a certificate to enable the ARA and the EACC appeal to the Supreme Court in terms of Article 163(4)(b) of the Constitution,” the judges ruled.
On or about 31st October 2017, ARA moved to the High Court seeking a declaration that the above sum which was held in Aboo’s three Equity Bank accounts were proceeds of crime.
The agency pleaded that the said sum of money constituted cash deposits made in Mombasa in Aboo’s accounts by third parties on behalf of her husband, Alex Mukhwana Kisa.
Kisa was at the material time an officer at the Customs Department, Kenya Revenue Authority and investigations indicated that there was no legitimate reason or justification for the said payments and deposits in favour of his wife.
In opposition to the originating motion, Aboo swore a replying affidavit on 11th July 2018 and a supplementary affidavit on 30th July 2018 in which she deposed that the ARA had not adduced any evidence to show that the money was deposited on behalf of her husband or that it was proceeds of crime.
Ong’undi, J. heard the motion and by a judgment dated 13th November 2018, allowed the application and forfeited the moneys in question.
The learned judge found that Pamela’s explanation of the source of the money, namely proceeds from her transport, banana and sugarcane business as well as trading in cereals in Busia, did not add up and that on average the daily deposits in her account were over Sh 100,000, sometimes over Sh 400,000.
Further, for the period in question, the judge found that there were no withdraws from the said accounts.
Accordingly, the learned judge concluded that in the absence of satisfactory explanation by Aboo regarding the source of the funds, the court concluded that the funds were not lawfully obtained.
