Assests Recovery Agency VS SWALEH YUSUF AHMED AND ASMA ABDALLA MOHAMED AND 2 Others

</><><>></><><>></><><>></><><>></><><>></><><>></><><>>> ></><><>>> ></><><>>> ></><><>>> ></><><>></><><>><>><>>> >> ><>>> >> ><>><>><>><>><>>> >> >> >> ><>><>><>><>>> ><>>>, >> >> >> >> >> >> >> >> >> >> ><>>> >> ><>>> >> >> ><>>> >> >> ><>>> ></><><>></><><>>> >> >> >> >> >> ><>><>><>>>><>>> >> ><>>> >> >> ><>>> ><>>> >> ><>>> ><>>> >> >> ><>>> <>> ><>>> ><>>> >> ><>>> ><>>>><>>> >> >>>> ><>>> >> >> >> >> >> >> ><>>> >> >> ><>>> >> >> ><>>> >> >> ><>>> >> >> ></><><>></><><>< id>In the course of dealing with the matter, there have been numerous back and forth applications to transfer the matter and the question of the 1^st and the 4^th respondent having died. The applicant opted to withdraw the application against the 1^st respondent because none of the assets that it seeks forfeited was registered in his name but maintained the forfeiture proceedings against the 4^th respondent because some of the assets that the applicant seeks to be forfeited are registered in the name of that 4^th respondent. Despite the fact of death, the applicant submitted that the proceedings were in rem and therefore the claim against the property of the 4^th respondent could proceed, his death notwithstanding. This then becomes a threshold issue which this court must address before going into the merits of the case.

“…the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.”

1. Despite the fact that all the respondents are close relatives, none has stepped forth to represent the estate and substitute the the 4^th respondent.. The respondents have also on numerous occasions been asked by the court to substitute the 4^th respondent but have adamantly declined and squandered that opportunity. The court appreciates the right to a fair hearing to be beyond limitation just as it appreciates that the right belongs to the individual who may choose to insist on it or just abandon it. It does not follow that if a party for own reasons chose to abandon his right to be heard the court becomes helpless and must remain held at ransom whichever the level the case has progressed. The court still has the duty to handle the case with the required timeliness.
2. The court have just faced instances where parties fail to utilize their right to be heard by either absconding court proceedings or behaving in a manner as to scuttle the proceedings.  The issue arose before the Court of Appeal in the case of Union Insurance Co. of Kenya Ltd. vs. Ramzan Abdul Dhanji Civil Application No. Nai. 179 of 1998 and the court said: -

“Whereas the right to be heard is a basic natural-justice concept  and ought not to be taken away lightly, looking at the record  before the court, the court is not impressed by the point that the  applicant was denied the right to defend itself….Clearly the  applicant was given a chance to be heard and the court is not  convinced that the issue of failure by the High Court to hear the  applicant will be such an arguable point in the appeal. The law is  not that a party must be heard in every litigation. The law is that  parties must be given a reasonable opportunity of being heard  and once that opportunity is given and is not utilised, then the  only point on which the party not utilising the opportunity can be  heard is why he did not utilise it.”

1. In this matter the court is fully satisfied that it gave to the 4^th respondents known relatives, being the 2nd and 3^rd respondents, to have the estate be joined to the proceedings for purposes of being heard but the chance and opportunity was never seized and utilised. The court had the duty to give the chance to be heard but no right to coerce the estate to be heard.
2. That notwithstanding, the 4^th respondent had participated in these proceedings by filing a response to the originating motion in the form of a replying affidavit sworn on 13^th March, 2024 and submissions dated 9^th October, 2024. In proceedings such as this, where the dispute is capable of resolution by affidavit evidence only, the participation of a respondent is to the extent of filing a replying affidavit and where need be, to cross examine the applicant’s witness and filing of submissions.  The court is assured that the 4^th respondent fully participated in the in the proceeding by availing to court the material it desired the court to access. By the time his death was brought to the attention of the court, the only remaining task was upon the court to prepare and pronounce a judgment.
3. That was the observation of the Court of Appeal in the case of John Omondi Nallo (the administrator of the Estate of the late Jared Nallo Otieno) v Francis Aliaro Mapesa [2018] eKLR where it was held;
4. “There is no doubt that the cause of action survived the death of the deceased defendant as it related to title to land. The judgment delivered determined title to property and thus it was a judgment in rem. Moreover, the deceased had no further role to play after the conclusion of the trial. What remained was a judicial function of pronouncing the judgment. The estate of the deceased could be represented at the delivery of the judgment by a legal representative of the deceased or by a counsel instructed by the estate.”
5. The court thus finds that the death of the 4^th respondent coming as it did at the stage the matter had reached does not forestall the matter from being progressed towards conclusion. The matter shall thus be progressed with the court delving into the merits of the claim.   
6. On the merits, and after the court has resolved the preliminary issue raised by the Respondents, and there being no outstanding question on the propriety of the proceedings or jurisdiction of the court, the court is of the learning that every suit seeking forfeiture orders attracts only two issues for determination; whether the subject asset is a proceed of crime, which if answered in this affirmative, then invites the question whether or not the same is subject to forfeiture.
7. In this matter the applicant has established that the 1^st and 2^nd Respondents being spouses, were jointly with others not parties to these proceedings, charged with the offence of trafficking in cocaine.  It was also demonstrated that investigation raised reasonable suspicion that the transactions revealed in the Respondents bank and Mpesa accounts were not supported with any disclosed legitimate earnings or sources of income.  It was highlighted that there were consistent structured deposits and withdrawals from their accounts which are viewed to be consistent with camouflage of a complex dealing in illicit income.  That raises reasonable suspicion on a prima-facie basis which then shifted the evidential burden to the Respondents.
8. As designed, POCAMLA must be seen to protect the right of reply upon the Respondents before and even after the institution of the proceedings.  Before the proceedings, the applicant has a duty to call upon the Respondents, then just targets of investigation, to record a statement and explain the sources of income suspected to be illicit income.
9. In this matter, when that chance was availed to the Respondent, all declined and exercised their undoubted rights to remain silent.  The assertion by the applicant that it invited the Respondents to record statements but the invitation was snubbed has not been denied by any of the Respondents.  The court thus finds that the right to answer was duly availed but the Respondents chose not to seize the same.
10. Even after these proceedings were instituted and the summons duly served upon the deponents, only the 4^th Respondent filed a replying affidavit and offered an explanation that she engaged in the legitimate business of selling water and chicken and that the notable substantial two deposits of Kshs.780,000/= were the proceeds of a land sale.  She in fact exhibited a sale agreement to that effect.
11. To the contrary, the 3^rd Respondent despite being given a chance to respond to the originating motion squandered the chance to counter the accusation of reasonable suspicion of that income.  He not only failed to file a response but equally declined to file submissions even on points of law only.
12. It is thus plain to the court that the 2^nd and 3^rd Respondents have not offered any material to controvert the prima facie demonstration by the applicant that there is no legitimate source of income to have derived the deposits and withdrawals made on their respective accounts which were then equally employed to acquire the real property registered in the 3^rd Respondents name.  In particular, the 3^rd Respondent left unanswered the assertion that his account opened upon a declaration that he operated a tuk tuk, received sums in excess of Kshs.3,000,000 within one month yet he made no payment as returns for tax obligations in such income.  In addition, the assertion by the applicant that the 3^rd Respondents account held at cooperative Bank transacted sums of Kshs 3,085,000 between 30/6/2013 and 16/4/2014 remain uncontroverted.
13. Being so uncontroverted, the court finds and holds that the evidence availed by the applicant establishes on a balance of probabilities that the 2^nd and 4^th Respondent’s accounts received unexplained source of money in a style and fashion that raises the reasonable suspicion that the same were proceeds of crime.  The prima facie proof was due for rebuttal but the Respondents failed to do so. 
14. Accordingly all the sums identified to be held on the bank accounts operated by the 2^nd and 4^th Respondents which were preserved by the preservation orders issued by the court in Misc Cr. Application No.E020/2023 are adjudged to be proceeds of crime. 
15. On the same note and basis, the 3^rd Respondent’s landed property known as LR NO. Kilifi/Mtwapa/2598, 2599 and 2600 as well as Kilifi/Kikambala Block 285/3/Parcel No.45 have been demonstrated to have been purchased from unexplained sources of funds.  Unexplained because the 3^rd Respondent had the opportunity and chance to explain how he earned the sums of money deposited into his two accounts in amounting disproportionate to his disclosed legitimate engagement but he failed to do so.
16. Being unexplained the money and the acquired asset from such unexplained money pass as illicit earnings and thus proceeds of crime.
17. As said before, only the 4^th Respondent offered an explanation about her sources of income to be business of selling chicken and water and also sale of an inheritance. The court has taken its time to study the documents filed by the said Respondent in line with those by the applicant.  In particular, the court has analysed the bank statements exhibited in the Replying Affidavit sworn by the 4^th Respondent.  From the analysis, it is noted that the transfers of the purchase price for the alleged sale having were effected on the 5^th and 6^th of September, 2022, a total of about 2,560,000 had been withdrawn by the 17/3/2023.  That’s a period of just six months.  It is the opinion of the court that if indeed, the sum of Kshs.1,560,000 deposited on 5^th and 6^th September, 2022, were indeed proceeds of sale of the inherited land, then that sum had been withdrawn from the account as at 17/3/2023 and was not part of the sum preserved in the account by orders of the court.
18. To this court, however, when a grave order like forfeiture is sought against a citizen who has legitimately acquired a valuable property like land in the prime area like Likoni, Mombasa, by inheritance faces the orders of losing same, the right to own property of any kind enshrined in the Constitution imports upon such a citizen proportionate duty to demonstrate the legitimacy of acquisition of the asset.  The court takes the view that a document like search, a copy of title or even certificate of confirmation of grant would not have been very difficult to exhibit.
19. For her case, the 4^th Respondent was content with a bare agreement for sale with nothing else to show that she had a disposable inheritance in the cited parcel of land.
20. The court finds that the 4^th Respondent failed to demonstrate that she in fact had a disposable interest in parcel of land No. Mombasa/Likoni/2028 which she sold and legitimately earned the sum of Kshs.1,560,000 transferred to her account on the 5^th and 6^th September, 2024.
21. In any event, even if there had been a demonstration of title to the land there has not been an explanation of sources of the structured and consistent deposits of Kshs.100,000, effected 14 times between July 2022 and June 2023.  The consistency, uniformity and structured deposits, without disclosure of legitimate sources, does not escape the reasonable suspicion that there was a deliberate and deceitful camouflage of illicit flow for purpose of laundering by injunction into the financial systems.  That goes for the 4^th Respondents accountant ABSA Bank, Nyali Branch.
22. It is therefore the ultimate finding by the court that the sum held in the 4^th Respondents two accounts at KCB Nyali and ABSA Bank Nyali Branch are proceeds of crime and were property preserved by the court order exhibited in these proceedings.
23. On the first of the issues isolated for determination, the court finds that the sums of money held in account No.01109138072800 at Cooperative Bank in the name of the 2^nd Respondent and in accounts No.1272392473, at KCB Bank Nyali Branch and Account No.0165242831 at ABSA Bank, Nyali Branch, both in the names of the 4^th Respondent are proceeds of crime. On the same vain, the immovable property known as Kilifi/Mtwapa/2598, 2599 and 2600 and Kilifi/Kikambala/Block 285/3 parcel No.45 are also proceeds of crime.
24. Having found that the said assets are proceeds of crime, the spirit and object of the law in Proceeds of Crime and Anti-Money Laundering Act is that none should be allowed to keep, enjoy and benefit from proceeds of crime.  The rationale is that crime hurts the society especially those who are law abiding.  In this matter where it is demonstrated that the assets here are proceeds from trafficking in narcotics, with known devastating effect on society, especially youth who get rendered zombies, the dictate is even more compelling.
25. To the court once a property is adjudged and declared a proceed of crime, the spirit of the statute anchored on the international statutes and other legal instruments, give no liberty to court to render otherwise, but that it becomes axiomatic, that such property be forfeited to the state on behalf of the injured and those other citizens threatened with injury by the crime, trafficking in narcotic.  It follows thus, every property identified by the application in this matter as unexplained and adjudged by court as a proceed of crime is subject to and ordered forfeited.
26. The court thus considers the following as the appropriate orders to make:-
27. An order is hereby issued declaring that all the money held in Commercial Banks and listed as follows are proceeds of crime: -
28. Kshs.739,234.00 held at KCB Bank account No.1272392473 in the name of Jauria Yusuf Ahmed.
29. Kshs.875,484.69 held at Cooperative Bank account No.01109138072800 in the name of Asma Abdalla Mohamed.
30. Kshs.424,824.95 held at ABSA Bank account No.0165242831 in the name of Jauria Yusuf Ahmed.
31. An order declaring that all the land parcels listed below and all developments thereon are proceeds of crime.  That is to say
32. L/R NO. Kilifi/Mtwapa/2598
33. L.R NO. Kilifi/Mtwapa/2599
34. L.R No. Kilifi/Mtwapa/2600
35. L.R NO. Kilifi/Kikambala Block 285/3 parcel No.45 are all proceeds of crime.
36. An order that all the money held in Commercial Banks listed in Prayer 1 (a), (b) and(c) and declared proceeds of crime are hereby ordered forfeited to the Applicant on the behalf of the state.
37. An order that the properties, developments and income therefrom listed in rendition 2(a), (b), (c) and (d), having declared proceeds of crime, are ordered forfeited to the Assets Recovery Agency (the applicant herein) on behalf of the state.
38. Thus, a consequential vesting order is hereby issued  directing the Chief Land Registrar/Land Registrar Mombasa, to effect transfer of Land Parcels in Prayer 2 above to the applicant (Assets Recovery Agency) on behalf of the state.
39. As the applicant has succeeded, the costs of the originating motion is awarded to it.

Dated, signed and delivered at Nairobi, this 28th day of March, 2025.

Amended, pursuant to section 99, CPA, this 10^th day of April, 2025, pursuant to the request by the applicant dated 9.4.2025

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