It is a blow for the Assets Recovery Agency after the Court of Appeal declined to issue stay orders of a High Court decision unfreezing former Governor Mike Sonko’s accounts.
The appellate court ruled that it lacked jurisdiction to stay a negative order issued by the High Court.
ARA was challenging a decision by Justice Nixon Sifuna dismissing an application seeking to forfeit Sonko’s money.
The three-judge bench, Justice Kathurima M’inoti, Chacha Mwita and Bryam Ongaya held that there was nothing that could be stayed under Rule 5(2)(b) of the Court of Appeal Rules.
“You are aware of consistent decisions of this Court that it cannot issue an order of stay of execution in respect of a dismissal,” Justice M’Inoti said.
According to bench, the appellate court has, in about ten previous decisions, maintained that it cannot stay a negative order — one that does not command a party to do or refrain from doing anything, but simply dismisses a claim.
The judges noted that they could not stay a dismissal order and that Section 97 did not clothe them with jurisdiction in the present application.
The agency had moved to court seeking forfeiture of Sonko’s funds on grounds that they were proceeds of crime.
ARA sought orders to have his assets frozen on suspicious money transactions believed to be proceeds of crime from the alleged theft of over Sh 337 million.
Sonko is alleged to have received millions in kickbacks wired through proxies to his bank accounts.
While dismissing the application, the High Court ruled that the agency failed to adduce sufficient evidence to prove the funds were proceeds of crime
Justice Sifuna noted several issues that led to the dismissal of the application including unverified property sale documents, lack of witnesses, selective investigations among others.
The judge faulted the agency for failing to investigate Sonko’s accounts before he became the county boss.
Sonko’s lawyer Harrison Kinyanjui had argued that the funds by the former governor were legitimately acquired over the years.
It was his submission that the case was nothing more than political witch-hunt of the impeachment process initiated by the former government.
