The applicant, a statutory body established under Section 53 of Proceeds of Crime and Anti-Money Laundering Act (hereinafter referred to as ‘POCAMLA’) with mandate of identifying, tracing, seizing and recovering proceeds of crime has brought originating motion dated 13-11-2025 pursuant to Section 81, 90, and 92 of POCAMLA praying for orders that: - 1. T his Honourable Court be pleased to declare the motor vehicle registration number KBJ 679M and chassis number ACM215033828 registered in the name of the respondent as an instrumentality of crime.
2. This Honourable Court be pleased to issue orders forfeiting the motor vehicle in prayer 1 above to the applicant on behalf of the state.
3. T his Honourable Court be pleased to issue an order directing the Director National Transport and Safety Authority to effect transfer of the motor vehicle in prayer 1 above to the applicant herein on behalf of the state.
4. Costs of this suit be provided for.
The application was supported by the affidavits of Duncan Odhiambo, its investigating officer sworn on 13 th November 2025 and 2 nd April 2026 and based on grounds on the face of it. Duncan avers that the applicant received information about a drug trafficking case involving motor vehicle registration No. KBJ 679M (hereinafter referred to as ‘the vehicle’) upon which they opened an inquiry file.
He adds that, the applicant’s inquiry established that in April 2024, officers from the Anti-Narcotics Unit intercepted the vehicle at Samburu trading centre along the Mombasa-Nairobi Highway in Kwale County and upon searching the vehicle, they recovered 10 sacks containing dry plant material, which was later confirmed by the Government Chemist to be cannabis sativa weighing 389.45 kilograms and valued at Ksh. 11,683,500. The driver of the vehicle at the time one Elisha Omondi Njeiya (hereinafter referred to as ‘the driver’) was arrested and charged with trafficking in narcotic drugs in Mariakani court criminal case number E224 of 2024.
The deponent added that the investigations established that the vehicle was registered in the respondent’s name who is the first wife of one David Otieno Maira and co-wife to Irene Auma Odero. The vehicle was under the control of the said husband, who had been charged in multiple drugs trafficking cases, including Malindi Courts criminal case no. E375 of 2025 and Narok Courts criminal Case No. 1326 of 2021. Further investigations revealed that Irene Auma Odero (the respondent’s co-wife) had also been arrested and charged with trafficking offences in criminal case number E374 of 2024 and during a search of her residence in Kona Musa in Diani in which she lived with the husband, officers recovered the log book for the vehicle and another one being registration number KDJ 890X and charge sheets in the aforementioned criminal cases and another criminal case E620 of 2024 among other items.
Following the above discoveries, the applicant obtained warrants to examine the mpesa account of Elisha Omondi Njeiya. Upon obtaining the mpesa statement, the deponent conducted an analysis of the transactions which revealed that between 24-10-2023 and 1-02-2025, David Otieno Maira (the respondent’s husband) had sent the driver a total of Kshs 198,400.00 through multiple transactions. Notably, there was a transaction of Ksh. 12,000.00 on 7-07-2024 which was shortly before the driver’s arrest on 19-07-2024, which in the deponent’s view suggested that the funds were used to facilitate the movement of narcotics drugs. He added that their investigations also revealed that David Otieno Maira was the insured of the vehicle which was an indication that he had an insurable interest and actual control over it.
The applicant contended that the respondent did not have physical possession or control of the vehicle and that her name was used to disguise her husband’s ownership and control. The investigator proposed that the recovery of the charge sheets and log book from the residence of David Otieno Maira and Irene Auma Odero combined with the financial link between the husband and the driver demonstrated that, the respondent knew or ought to have known the vehicle was being used in trafficking narcotic drugs.
Respondent’s response
In opposition to the application, the respondent filed a replying affidavit sworn on 6-03-2026 in which she stated that she was the legal and beneficial owner of the vehicle which she had lawfully acquired as a gift from her father, one William Smith. She contended that there was no factual, legal, or evidential link between the vehicle and any alleged criminal conduct and claimed that she had cooperated with investigators by providing her father’s contact details which the applicant had deliberately omitted from the application.
She stated further that the applicant’s case against her was improperly based solely on her marital relationship with her husband and co-wife without any credible evidence connecting her to the alleged criminal activities. She emphasized that she was a businesswoman engaged in legitimate ventures including retail, wholesale, distribution and mining and that her substantial financial transactions were conducted through formal banking and regulated mobile money platforms. She further explained that she and her husband pooled their lawful incomes for family investments and some of the funds used to acquire the vehicle came from their joint financial resources which predated the alleged offences.
The respondent denied being in possession or control of the vehicle at the time of its alleged impoundment, stating that the individuals reportedly driving or in possession of it were strangers to her. She pointed out that her ownership of the vehicle dated back to 22-06-2020, well before the allegations arose and that she had never been arrested or charged with drug trafficking offences. She averred further that pending charges against her husband and co-wife did not automatically render her property as proceeds of crime.
She maintained that the applicant had failed to provide forensic accounting evidence, transactional analysis or any financial trail linking the vehicle to criminal proceeds and that the application was based on suspicion and conjecture rather than proof. She invoked her constitutional rights under Articles 40 and 27 of the Constitution arguing that forfeiture without strict evidentiary compliance would amount to arbitrary deprivation of property. She concluded that the forfeiture application was untenable and an abuse of court process.
Applicant’s supplementary affidavit
The applicant in rebuttal filed a supplementary affidavit sworn on 2-04-2026 in which Duncan Odhiambo stated that the applicant was seeking forfeiture of the vehicle for being an instrumentality of crime. He stated that he had conducted William Otieno Mwana who the respondent claimed had gifted her Kshs. 500,000.00 for the purchase of the vehicle but the alleged father avoided meeting him and failed to honour summons issued to compel his attendance. He added that investigations from National Transport and Safety Authority revealed that the said William Otieno Mwana did not own the vehicle and therefore could not have passed title to the respondent.
He reiterated his earlier averments and noted that the respondent had not provided any business permits or licenses to support her claim that she and her husband were engaged in legitimate business. He added that investigations in a related case had established that some permits supplied by the respondent’s husband and co-wife in this courts civil case number E040 of 2025 were forged, as confirmed by letters from the County Governments of Migori, Homabay and Kilifi which indicated that the permits did not originate from their systems or were fake.
The investigator pointed out inconsistencies in the respondent’s statements regarding the driver of the vehicle. He claimed that in her recorded statement, the respondent first claimed that she gave the vehicle to a person known as Omondi for taxi operations but could not trace his contacts or whereabouts while in a separate statement recorded at the Directorate of Criminal Investigations, she stated that Calvin Omondi had requested to use the vehicle to take a patient to hospital in Migori. He argued that these contradictions suggested that she was deliberately concealing the driver’s identity and she had not demonstrated any proceeds from the alleged taxi business.
He further contended that, it was immaterial when the respondent acquired the vehicle as it was subsequently used in the commission of a crime. He maintained that civil forfeiture did not require a criminal charge or conviction but only a demonstration of unlawful conduct which the applicant had shown. He asserted that there was sufficient evidence that the vehicle was used to ferry narcotic drugs making it realizable property under POCAMLA.
Analysis and determination
The applicant filed submissions dated 2 nd April 2026 while the respondent filed her submissions dated 20 th April 2026. In their respective submissions, the parties principally reiterated what was contained in their affidavits and cited authorities they considered supportive to their cases. The applicant maintained that it had met the threshold for forfeiture orders while the respondent as expected argued that the applicant had not proved its case to the required standard.
I have considered the originating motion, the affidavits filed and the submissions of the parties. Having done so, I have identified the following issues for determination;
a) Whether motor vehicle KBJ 679M was used to commit an offence.
b) Whether the vehicle should be forfeited to the government.
c) Who should bear the costs of the suit?
The jurisdiction of this court in civil forfeiture proceedings derives principally from Sections 90 and 92 of POCAMLA. Section 90 permits the Director General of the applicant, where a preservation order is in force, to apply for forfeiture to the government, while Section 92(1) requires the court to make a forfeiture order where, on a balance of probabilities, it finds that the property has been used or is intended for use in the commission of an offence or constitutes proceeds of crime.
Reading from the Act and going by judicial precedents, forfeiture proceedings are civil in nature and as such the standard of proof is on a balance of probabilities. In Assets Recovery Agency v Pamela Aboo; Ethics & Anti Corruption Commission (Interested Party) [2018] KEHC 1845 (KLR) , the court affirmed that: -
‘Forfeiture proceedings are Civil in nature and that is why the standard of proof is on a balance of probabilities .’
The applicant bears the burden of establishing basis for forfeiture. Section 107 of the Evidence Act places the legal burden upon the party asserting a fact. The Court of Appeal in Assets Recovery Agency v Gethi [2026] KECA 473 (KLR) this by holding that;
‘We note that forfeiture under POCAMLA is civil in nature and requires proof on a balance of probabilities. In Pamela Aboo v Assets Recovery Agency & Another [2018] KEHC 1845 (KLR), this court underscored the proper construction of sections 92 and 94 of POCAMLA . The court affirmed that these provisions empower the trial court to issue an order of forfeiture where, on a balance of probabilities, it is demonstrated that the property in question has either been used or is intended for use in the commission of an offence, or constitutes proceeds of crime. The court clarified that the applicable standard of proof in such forfeiture proceedings is the civil standard namely, proof on a balance of probabilities.’
In the present matter, there is no dispute that the vehicle was intercepted while being used to convey a substantial quantity of cannabis sativa . The evidence produced by the applicant before this court shows that 389.45 kilograms of cannabis sativa was recovered from the vehicle. The driver, Elisha Omondi Njeiya, was arrested and charged with trafficking in narcotic drugs. The respondent has not made any attempt to challenge the applicant’s averments that the vehicle was intercepted while conveying plant material which after being tested turned out to be cannabis sativa . Although the criminal charge against the driver was not, by itself, determinative of the civil forfeiture proceedings, it constitutes significant evidence regarding the actual use to which the vehicle was put.
More importantly, the applicant did not rely solely on the fact of interception. It placed before this court evidence connecting the vehicle to David Otieno Mahira. The vehicle’s logbook was recovered from premises associated with David Maira and Irene Auma Odero. David Mahira was the insured of the vehicle and financial investigations revealed repeated transfers from David Mahira to Elisha Omondi Njeiya, including a payment of Kshs. 12,000/= a few days before the driver’s arrest. Considered cumulatively, these circumstances establish more than mere association or suspicion. They demonstrate a functional relationship between the vehicle, its actual controller, the driver and the narcotics trafficking activity.
The respondent has argued that she did not know the persons who were allegedly in possession of the vehicle when it was intercepted. It has been demonstrated that the person found in possession of the vehicle had dealings and business association with David Mahira who the respondent has confirmed to be her husband. The said David lives in the same house with Irene Auma Odero who has also been linked and charged in court with dealing in narcotics drugs. The applicant produced a letter from Africa Merchant Assurance Co Ltd as annexure ‘DO-14’ which confirmed that the vehicle was insured by David Mahira vide certificate number C28096915 which means that he had insurable interest in the same.
In addition to the above, this court finds it unbelievable and actually absurd that an owner of a precious asset as a motor vehicle would sit still, comfortable and peaceful while the same is roaming outside there in possession of people she is not associated with. It cannot be sheer coincidence that the vehicle’s log book and insurance certificate were found in the home of the respondent’s husband and co-wife who have been charged and associated with drug trafficking.
The respondent has also submitted that there was no proof that she was involved in the stated criminal activities. It is trite that forfeiture proceedings are not interested in the perpetrators of the alleged offences but set their eyes on the property derived from or used in the criminal enterprise. The reason behind this is that, the proceedings are aimed at constricting the criminal industry and deny the criminals the benefits and opportunities of enjoying the fruits of their illegal operations. That is why the standard of proof required in the proceedings is balance of probabilities rather than beyond any reasonable doubt.
I am in agreement with the holding of Honourable Lady Justice E.N. Maina in Assets Recovery Agency v Wanjiru; Kimuri Housing Company Limited (Interested Party) [2023] KEHC 25985 (KLR) where she stated that;
‘The rationale behind forfeiture of proceeds of crime is to deter crime by denying those involved from benefitting from it, for the good of the society. In the case of Abdurahman Mahmoud Sheikh & 6 others v Republic & ot hers (2016) eKLR the court stated that;
“The letter, spirit purpose and gravamen of the Proceeds of Crime and Anti-Money laundering Act is to ensure that one doesn’t benefit from criminal conduct and that should any proceeds of criminal conduct be traced then it ought to be forfeited, after due process, to the State, on behalf of the public which is deemed to have suffered some injury by the criminal conduct”
The respondent’s personal criminal culpability is not the issue before this court. Even if it were, the court would not be concerned with the outcome of or the status of the criminal case. Section 92(4) of POCAMLA provides that, the validity of an order of forfeiture is not affected by the outcome of criminal proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the property concerned is in some way associated . That means that not even the acquittal of the respondent or the driver would compel, influence or have a bearing on this court in arriving at its decision. The evidence produced in this forfeiture suit is the sole determinant of the outcome and not the outcome of or evidence produced in the criminal case.
It was held in Assets Recovery Agency v Active Electrons Africa Limited & 3 others [2023] KEHC 1766 (KLR) that;
‘The intention or purpose of Sections 92(4) of the Proceeds of Crime and Anti-Money Laundering Act is to ensure that people do not benefit from illicit wealth; that the Agency is able to deal with the incidence of illicit enrichment whether or not the persons involved have been found guilty of criminal offences. Part VII of the Proceeds of Crime and Anti-Money Laundering Act provides for the alternative avenue of criminal forfeiture (forfeiture upon conviction of a criminal offence) and it is therefore clear that the legislature was aware that there are instances where the Agency could move to recover illicit wealth without having to await the outcome of a criminal prosecution. It is left to the Assets Recovery Agency to determine the manner in which to institute recovery proceedings. It then behoves it to prove on a balance of probabilities that the Respondents are in possession of property or cash whose source is not legitimate. The evidential burden then shifts to the Respondents to prove the source of the funds or property.’
I also find the respondent’s explanations concerning possession of the vehicle unsatisfactory. The applicant pointed to material inconsistencies in the respondent’s statements in respect of the identity and purpose of the person to whom she entrusted the vehicle. In one account, she referred to a person known as Omondi whom she allegedly allowed to use the vehicle for taxi operations. In another statement recorded at the Directorate of Criminal Investigations, she referred to Calvin Omondi, who allegedly sought to use the vehicle to transport a patient to hospital in Migori. She did not provide sufficient evidence establishing the identity, whereabouts or legitimate purpose of the person who possessed the vehicle when it was used to transport the narcotics.
I find it interesting that the respondent has concentrated more in attempting to explain her acquisition of the vehicle and distancing herself from the commission of the alleged offence. The applicant having sought forfeiture on account of the vehicle having been used in commission of an offence and not as proceeds of crime, I expected the respondent to mount a defence distancing the vehicle (and not herself) from the allegations of conveying the narcotics drugs. That notwithstanding, I have considered her explanation concerning acquisition of the vehicle.
The respondent alleges that her father, one William Smith, gifted her the vehicle. She however does not expound on how and when the same was gifted. It is not clear from her affidavit whether the father financed her acquisition of the vehicle she used or he transferred it from himself to her. In the supplementary affidavit, the applicant’s investigator stated that their investigations into the alleged gift revealed that the father who he names as William Otieno Mwana and not William Smith, never owned the vehicle and therefore could not have transferred title to the respondent. The father also failed to honour the investigator’s summons or otherwise provide the explanation sought. It is my opinion that the onus of proving the gifting was on the respondent. She did not place before this court sufficient documentary evidence demonstrating the circumstances under which she acquired the vehicle.
The respondent has submitted that the application is based on mere suspicion. It is true as she has stated that suspicion, however strong, cannot substitute proof. However, in my considered opinion, the applicant’s case was not founded upon mere suspicion but on actual, cogent and consistent discoveries of material evidence. The uncontroverted physical recovery of narcotics from the vehicle, the criminal charge against the driver, the recovery of the vehicle’s logbook from premises associated with persons linked to narcotics trafficking, evidence of David Mahira’s control and insurance interest in the vehicle and the financial transactions between David Mahira and the driver and failure by the respondent’s to demonstrate how she acquired the vehicle taken together establish on a balance of probabilities, that the vehicle was used in the commission of an offence and most likely proceeds of crime.
The respondent invoked Article 40 of the Constitution which protects the right to acquire and own property and prohibits arbitrary deprivation of property. My answer to that issue is found in Article 40(6) which expressly provides that the protection under Article 40 does not extend to property that is found to have been unlawfully acquired. Since the respondent has failed to demonstrate how she acquired the vehicle, this court has no alternative but to take it that it was acquired using funds derived from a criminal conduct and hence the acquisition was through unlawful means. In addition, I take position that the where a property is found to have been encumbered through a statutory or legal process, its forfeiture or seizure cannot be said to be arbitrary deprivation. It is a lawful process which does not entitle the owner of the property to protection under Article 40 of the Constitution.
In Assets Recovery Agency v Pamela Aboo; Ethics & Anti-Corruption Commission (Interested Party) [supra], the court emphasizes that: -
‘ Forfeiture under POCAMLA is not a violation of an individual’s right to property. Article 40(6) of the Constitution is clear that rights acquired under article 40 do not extend to any property that is found to have been unlawfully acquired.’
I accordingly and in conclusion of the above discussion, find that the applicant has established the necessary nexus between motor vehicle and the commission of the offence of trafficking in narcotics drugs. The upshot of the above is that, I enter judgment in favour of the applicant in the following terms;
a) An order of declaration is hereby issued that motor vehicle registration number KBJ 679M, chassis number ACM215033828, is an instrumentality of crime.
b) The said motor vehicle registration number KBJ 679M, chassis number ACM215033828, is hereby forfeited to the applicant on behalf of the Government of Kenya.
c) The Director-General of the National Transport and Safety Authority is hereby directed to effect transfer of ownership of motor vehicle registration number KBJ 679M chassis number ACM215033828 to the applicant, Assets Recovery Agency on behalf of the Government of Kenya.
d) The respondent shall pay the costs of this application.
Dated, signed and delivered at Nairobi this 18 th day of September 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Judgment delivered in presence of Mr. Kandie for the applicant and Mr. Ogutu for the respondent.
2 | Page
2. This Honourable Court be pleased to issue orders forfeiting the motor vehicle in prayer 1 above to the applicant on behalf of the state.
3. T his Honourable Court be pleased to issue an order directing the Director National Transport and Safety Authority to effect transfer of the motor vehicle in prayer 1 above to the applicant herein on behalf of the state.
4. Costs of this suit be provided for.
The application was supported by the affidavits of Duncan Odhiambo, its investigating officer sworn on 13 th November 2025 and 2 nd April 2026 and based on grounds on the face of it. Duncan avers that the applicant received information about a drug trafficking case involving motor vehicle registration No. KBJ 679M (hereinafter referred to as ‘the vehicle’) upon which they opened an inquiry file.
He adds that, the applicant’s inquiry established that in April 2024, officers from the Anti-Narcotics Unit intercepted the vehicle at Samburu trading centre along the Mombasa-Nairobi Highway in Kwale County and upon searching the vehicle, they recovered 10 sacks containing dry plant material, which was later confirmed by the Government Chemist to be cannabis sativa weighing 389.45 kilograms and valued at Ksh. 11,683,500. The driver of the vehicle at the time one Elisha Omondi Njeiya (hereinafter referred to as ‘the driver’) was arrested and charged with trafficking in narcotic drugs in Mariakani court criminal case number E224 of 2024.
The deponent added that the investigations established that the vehicle was registered in the respondent’s name who is the first wife of one David Otieno Maira and co-wife to Irene Auma Odero. The vehicle was under the control of the said husband, who had been charged in multiple drugs trafficking cases, including Malindi Courts criminal case no. E375 of 2025 and Narok Courts criminal Case No. 1326 of 2021. Further investigations revealed that Irene Auma Odero (the respondent’s co-wife) had also been arrested and charged with trafficking offences in criminal case number E374 of 2024 and during a search of her residence in Kona Musa in Diani in which she lived with the husband, officers recovered the log book for the vehicle and another one being registration number KDJ 890X and charge sheets in the aforementioned criminal cases and another criminal case E620 of 2024 among other items.
Following the above discoveries, the applicant obtained warrants to examine the mpesa account of Elisha Omondi Njeiya. Upon obtaining the mpesa statement, the deponent conducted an analysis of the transactions which revealed that between 24-10-2023 and 1-02-2025, David Otieno Maira (the respondent’s husband) had sent the driver a total of Kshs 198,400.00 through multiple transactions. Notably, there was a transaction of Ksh. 12,000.00 on 7-07-2024 which was shortly before the driver’s arrest on 19-07-2024, which in the deponent’s view suggested that the funds were used to facilitate the movement of narcotics drugs. He added that their investigations also revealed that David Otieno Maira was the insured of the vehicle which was an indication that he had an insurable interest and actual control over it.
The applicant contended that the respondent did not have physical possession or control of the vehicle and that her name was used to disguise her husband’s ownership and control. The investigator proposed that the recovery of the charge sheets and log book from the residence of David Otieno Maira and Irene Auma Odero combined with the financial link between the husband and the driver demonstrated that, the respondent knew or ought to have known the vehicle was being used in trafficking narcotic drugs.
Respondent’s response
In opposition to the application, the respondent filed a replying affidavit sworn on 6-03-2026 in which she stated that she was the legal and beneficial owner of the vehicle which she had lawfully acquired as a gift from her father, one William Smith. She contended that there was no factual, legal, or evidential link between the vehicle and any alleged criminal conduct and claimed that she had cooperated with investigators by providing her father’s contact details which the applicant had deliberately omitted from the application.
She stated further that the applicant’s case against her was improperly based solely on her marital relationship with her husband and co-wife without any credible evidence connecting her to the alleged criminal activities. She emphasized that she was a businesswoman engaged in legitimate ventures including retail, wholesale, distribution and mining and that her substantial financial transactions were conducted through formal banking and regulated mobile money platforms. She further explained that she and her husband pooled their lawful incomes for family investments and some of the funds used to acquire the vehicle came from their joint financial resources which predated the alleged offences.
The respondent denied being in possession or control of the vehicle at the time of its alleged impoundment, stating that the individuals reportedly driving or in possession of it were strangers to her. She pointed out that her ownership of the vehicle dated back to 22-06-2020, well before the allegations arose and that she had never been arrested or charged with drug trafficking offences. She averred further that pending charges against her husband and co-wife did not automatically render her property as proceeds of crime.
She maintained that the applicant had failed to provide forensic accounting evidence, transactional analysis or any financial trail linking the vehicle to criminal proceeds and that the application was based on suspicion and conjecture rather than proof. She invoked her constitutional rights under Articles 40 and 27 of the Constitution arguing that forfeiture without strict evidentiary compliance would amount to arbitrary deprivation of property. She concluded that the forfeiture application was untenable and an abuse of court process.
Applicant’s supplementary affidavit
The applicant in rebuttal filed a supplementary affidavit sworn on 2-04-2026 in which Duncan Odhiambo stated that the applicant was seeking forfeiture of the vehicle for being an instrumentality of crime. He stated that he had conducted William Otieno Mwana who the respondent claimed had gifted her Kshs. 500,000.00 for the purchase of the vehicle but the alleged father avoided meeting him and failed to honour summons issued to compel his attendance. He added that investigations from National Transport and Safety Authority revealed that the said William Otieno Mwana did not own the vehicle and therefore could not have passed title to the respondent.
He reiterated his earlier averments and noted that the respondent had not provided any business permits or licenses to support her claim that she and her husband were engaged in legitimate business. He added that investigations in a related case had established that some permits supplied by the respondent’s husband and co-wife in this courts civil case number E040 of 2025 were forged, as confirmed by letters from the County Governments of Migori, Homabay and Kilifi which indicated that the permits did not originate from their systems or were fake.
The investigator pointed out inconsistencies in the respondent’s statements regarding the driver of the vehicle. He claimed that in her recorded statement, the respondent first claimed that she gave the vehicle to a person known as Omondi for taxi operations but could not trace his contacts or whereabouts while in a separate statement recorded at the Directorate of Criminal Investigations, she stated that Calvin Omondi had requested to use the vehicle to take a patient to hospital in Migori. He argued that these contradictions suggested that she was deliberately concealing the driver’s identity and she had not demonstrated any proceeds from the alleged taxi business.
He further contended that, it was immaterial when the respondent acquired the vehicle as it was subsequently used in the commission of a crime. He maintained that civil forfeiture did not require a criminal charge or conviction but only a demonstration of unlawful conduct which the applicant had shown. He asserted that there was sufficient evidence that the vehicle was used to ferry narcotic drugs making it realizable property under POCAMLA.
Analysis and determination
The applicant filed submissions dated 2 nd April 2026 while the respondent filed her submissions dated 20 th April 2026. In their respective submissions, the parties principally reiterated what was contained in their affidavits and cited authorities they considered supportive to their cases. The applicant maintained that it had met the threshold for forfeiture orders while the respondent as expected argued that the applicant had not proved its case to the required standard.
I have considered the originating motion, the affidavits filed and the submissions of the parties. Having done so, I have identified the following issues for determination;
a) Whether motor vehicle KBJ 679M was used to commit an offence.
b) Whether the vehicle should be forfeited to the government.
c) Who should bear the costs of the suit?
The jurisdiction of this court in civil forfeiture proceedings derives principally from Sections 90 and 92 of POCAMLA. Section 90 permits the Director General of the applicant, where a preservation order is in force, to apply for forfeiture to the government, while Section 92(1) requires the court to make a forfeiture order where, on a balance of probabilities, it finds that the property has been used or is intended for use in the commission of an offence or constitutes proceeds of crime.
Reading from the Act and going by judicial precedents, forfeiture proceedings are civil in nature and as such the standard of proof is on a balance of probabilities. In Assets Recovery Agency v Pamela Aboo; Ethics & Anti Corruption Commission (Interested Party) [2018] KEHC 1845 (KLR) , the court affirmed that: -
‘Forfeiture proceedings are Civil in nature and that is why the standard of proof is on a balance of probabilities .’
The applicant bears the burden of establishing basis for forfeiture. Section 107 of the Evidence Act places the legal burden upon the party asserting a fact. The Court of Appeal in Assets Recovery Agency v Gethi [2026] KECA 473 (KLR) this by holding that;
‘We note that forfeiture under POCAMLA is civil in nature and requires proof on a balance of probabilities. In Pamela Aboo v Assets Recovery Agency & Another [2018] KEHC 1845 (KLR), this court underscored the proper construction of sections 92 and 94 of POCAMLA . The court affirmed that these provisions empower the trial court to issue an order of forfeiture where, on a balance of probabilities, it is demonstrated that the property in question has either been used or is intended for use in the commission of an offence, or constitutes proceeds of crime. The court clarified that the applicable standard of proof in such forfeiture proceedings is the civil standard namely, proof on a balance of probabilities.’
In the present matter, there is no dispute that the vehicle was intercepted while being used to convey a substantial quantity of cannabis sativa . The evidence produced by the applicant before this court shows that 389.45 kilograms of cannabis sativa was recovered from the vehicle. The driver, Elisha Omondi Njeiya, was arrested and charged with trafficking in narcotic drugs. The respondent has not made any attempt to challenge the applicant’s averments that the vehicle was intercepted while conveying plant material which after being tested turned out to be cannabis sativa . Although the criminal charge against the driver was not, by itself, determinative of the civil forfeiture proceedings, it constitutes significant evidence regarding the actual use to which the vehicle was put.
More importantly, the applicant did not rely solely on the fact of interception. It placed before this court evidence connecting the vehicle to David Otieno Mahira. The vehicle’s logbook was recovered from premises associated with David Maira and Irene Auma Odero. David Mahira was the insured of the vehicle and financial investigations revealed repeated transfers from David Mahira to Elisha Omondi Njeiya, including a payment of Kshs. 12,000/= a few days before the driver’s arrest. Considered cumulatively, these circumstances establish more than mere association or suspicion. They demonstrate a functional relationship between the vehicle, its actual controller, the driver and the narcotics trafficking activity.
The respondent has argued that she did not know the persons who were allegedly in possession of the vehicle when it was intercepted. It has been demonstrated that the person found in possession of the vehicle had dealings and business association with David Mahira who the respondent has confirmed to be her husband. The said David lives in the same house with Irene Auma Odero who has also been linked and charged in court with dealing in narcotics drugs. The applicant produced a letter from Africa Merchant Assurance Co Ltd as annexure ‘DO-14’ which confirmed that the vehicle was insured by David Mahira vide certificate number C28096915 which means that he had insurable interest in the same.
In addition to the above, this court finds it unbelievable and actually absurd that an owner of a precious asset as a motor vehicle would sit still, comfortable and peaceful while the same is roaming outside there in possession of people she is not associated with. It cannot be sheer coincidence that the vehicle’s log book and insurance certificate were found in the home of the respondent’s husband and co-wife who have been charged and associated with drug trafficking.
The respondent has also submitted that there was no proof that she was involved in the stated criminal activities. It is trite that forfeiture proceedings are not interested in the perpetrators of the alleged offences but set their eyes on the property derived from or used in the criminal enterprise. The reason behind this is that, the proceedings are aimed at constricting the criminal industry and deny the criminals the benefits and opportunities of enjoying the fruits of their illegal operations. That is why the standard of proof required in the proceedings is balance of probabilities rather than beyond any reasonable doubt.
I am in agreement with the holding of Honourable Lady Justice E.N. Maina in Assets Recovery Agency v Wanjiru; Kimuri Housing Company Limited (Interested Party) [2023] KEHC 25985 (KLR) where she stated that;
‘The rationale behind forfeiture of proceeds of crime is to deter crime by denying those involved from benefitting from it, for the good of the society. In the case of Abdurahman Mahmoud Sheikh & 6 others v Republic & ot hers (2016) eKLR the court stated that;
“The letter, spirit purpose and gravamen of the Proceeds of Crime and Anti-Money laundering Act is to ensure that one doesn’t benefit from criminal conduct and that should any proceeds of criminal conduct be traced then it ought to be forfeited, after due process, to the State, on behalf of the public which is deemed to have suffered some injury by the criminal conduct”
The respondent’s personal criminal culpability is not the issue before this court. Even if it were, the court would not be concerned with the outcome of or the status of the criminal case. Section 92(4) of POCAMLA provides that, the validity of an order of forfeiture is not affected by the outcome of criminal proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the property concerned is in some way associated . That means that not even the acquittal of the respondent or the driver would compel, influence or have a bearing on this court in arriving at its decision. The evidence produced in this forfeiture suit is the sole determinant of the outcome and not the outcome of or evidence produced in the criminal case.
It was held in Assets Recovery Agency v Active Electrons Africa Limited & 3 others [2023] KEHC 1766 (KLR) that;
‘The intention or purpose of Sections 92(4) of the Proceeds of Crime and Anti-Money Laundering Act is to ensure that people do not benefit from illicit wealth; that the Agency is able to deal with the incidence of illicit enrichment whether or not the persons involved have been found guilty of criminal offences. Part VII of the Proceeds of Crime and Anti-Money Laundering Act provides for the alternative avenue of criminal forfeiture (forfeiture upon conviction of a criminal offence) and it is therefore clear that the legislature was aware that there are instances where the Agency could move to recover illicit wealth without having to await the outcome of a criminal prosecution. It is left to the Assets Recovery Agency to determine the manner in which to institute recovery proceedings. It then behoves it to prove on a balance of probabilities that the Respondents are in possession of property or cash whose source is not legitimate. The evidential burden then shifts to the Respondents to prove the source of the funds or property.’
I also find the respondent’s explanations concerning possession of the vehicle unsatisfactory. The applicant pointed to material inconsistencies in the respondent’s statements in respect of the identity and purpose of the person to whom she entrusted the vehicle. In one account, she referred to a person known as Omondi whom she allegedly allowed to use the vehicle for taxi operations. In another statement recorded at the Directorate of Criminal Investigations, she referred to Calvin Omondi, who allegedly sought to use the vehicle to transport a patient to hospital in Migori. She did not provide sufficient evidence establishing the identity, whereabouts or legitimate purpose of the person who possessed the vehicle when it was used to transport the narcotics.
I find it interesting that the respondent has concentrated more in attempting to explain her acquisition of the vehicle and distancing herself from the commission of the alleged offence. The applicant having sought forfeiture on account of the vehicle having been used in commission of an offence and not as proceeds of crime, I expected the respondent to mount a defence distancing the vehicle (and not herself) from the allegations of conveying the narcotics drugs. That notwithstanding, I have considered her explanation concerning acquisition of the vehicle.
The respondent alleges that her father, one William Smith, gifted her the vehicle. She however does not expound on how and when the same was gifted. It is not clear from her affidavit whether the father financed her acquisition of the vehicle she used or he transferred it from himself to her. In the supplementary affidavit, the applicant’s investigator stated that their investigations into the alleged gift revealed that the father who he names as William Otieno Mwana and not William Smith, never owned the vehicle and therefore could not have transferred title to the respondent. The father also failed to honour the investigator’s summons or otherwise provide the explanation sought. It is my opinion that the onus of proving the gifting was on the respondent. She did not place before this court sufficient documentary evidence demonstrating the circumstances under which she acquired the vehicle.
The respondent has submitted that the application is based on mere suspicion. It is true as she has stated that suspicion, however strong, cannot substitute proof. However, in my considered opinion, the applicant’s case was not founded upon mere suspicion but on actual, cogent and consistent discoveries of material evidence. The uncontroverted physical recovery of narcotics from the vehicle, the criminal charge against the driver, the recovery of the vehicle’s logbook from premises associated with persons linked to narcotics trafficking, evidence of David Mahira’s control and insurance interest in the vehicle and the financial transactions between David Mahira and the driver and failure by the respondent’s to demonstrate how she acquired the vehicle taken together establish on a balance of probabilities, that the vehicle was used in the commission of an offence and most likely proceeds of crime.
The respondent invoked Article 40 of the Constitution which protects the right to acquire and own property and prohibits arbitrary deprivation of property. My answer to that issue is found in Article 40(6) which expressly provides that the protection under Article 40 does not extend to property that is found to have been unlawfully acquired. Since the respondent has failed to demonstrate how she acquired the vehicle, this court has no alternative but to take it that it was acquired using funds derived from a criminal conduct and hence the acquisition was through unlawful means. In addition, I take position that the where a property is found to have been encumbered through a statutory or legal process, its forfeiture or seizure cannot be said to be arbitrary deprivation. It is a lawful process which does not entitle the owner of the property to protection under Article 40 of the Constitution.
In Assets Recovery Agency v Pamela Aboo; Ethics & Anti-Corruption Commission (Interested Party) [supra], the court emphasizes that: -
‘ Forfeiture under POCAMLA is not a violation of an individual’s right to property. Article 40(6) of the Constitution is clear that rights acquired under article 40 do not extend to any property that is found to have been unlawfully acquired.’
I accordingly and in conclusion of the above discussion, find that the applicant has established the necessary nexus between motor vehicle and the commission of the offence of trafficking in narcotics drugs. The upshot of the above is that, I enter judgment in favour of the applicant in the following terms;
a) An order of declaration is hereby issued that motor vehicle registration number KBJ 679M, chassis number ACM215033828, is an instrumentality of crime.
b) The said motor vehicle registration number KBJ 679M, chassis number ACM215033828, is hereby forfeited to the applicant on behalf of the Government of Kenya.
c) The Director-General of the National Transport and Safety Authority is hereby directed to effect transfer of ownership of motor vehicle registration number KBJ 679M chassis number ACM215033828 to the applicant, Assets Recovery Agency on behalf of the Government of Kenya.
d) The respondent shall pay the costs of this application.
Dated, signed and delivered at Nairobi this 18 th day of September 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Judgment delivered in presence of Mr. Kandie for the applicant and Mr. Ogutu for the respondent.
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