REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION MILIMANI
ACEC SUIT NO. E004 OF 2024
ASSETS RECOVERY AGENCY ……………………………….………………. APPELLANT
VERSUS
MUHSAN SHARIFF ABDIKADIR …………..…………….………………… RESPONDENT
JUDGMENT
Pursuant to the provisions of sections 90 and 92 of the Proceeds of Crime and Anti – Money laundering Act (No.9 of 2009), the Asset Recovery Agency, (hereinafter, the Agency) filed the originating summons dated 20/2/2024 and made a prayer in the main, that the motor vehicle Registration No. KCU 595H, CHASIS/FRAMENO JT ELB 71520 – 7723469, registered in the name of the Respondent is a proceed of crime and liable for forfeiture; that the said motor vehicle be forfeited to the Agency on behalf of the Government; that an order be issued directed at the Director, National Transport and Safety Authority, to transfer the ownership of the motor vehicle in favour of the government; that any other ancillary order be made as deemed necessary for the proper and effective execution of court’s orders and lastly that costs be provided for.
The application was supported by an affidavit sworn by one Bedford Muriuki, the investigating officer attached with the agency whose gist was that on receipt of information in the year 2022, the agency opened an inquiry file No.52 of 2022 to inquire and investigate into the activities of the Respondent in connection with the offence of trafficking in persons using motor vehicle number KCU 585H. The inquiry led to the arrest, and charge in Kahawa Law Courts, Cr Case No. E048 of 2022 of the people suspected to be employees of the Respondent. The two faced the charge of Trafficking 21 Eritreans for purposes of exploitation by means of deception.
Further investigation revealed that accounts associated with the Respondent received suspicious cash deposits from unknown individual with some suspected to be money obtained from illegitimate business of trafficking in persons and therefore the motor vehicle was itself a proceed of crime obtained from illegitimate business of trafficking in persons.
There was filed on the 18/3/2024, an affidavit sworn by one Vincent Osako Oichoe to demonstrate that the originating summons was served upon the Respondent by way of WhatsApp, after the Respondent failed to answer his phone, through Telephone No.0715 300888 at 11.54am.
On the 5/4/2024, MS Albert M Wakori & Co. Advocate filed a notice of appointment of advocate to come on record as representing the Respondent. On the same date the counsel equally filed a notice of preliminary objection asserting that there having been a previous suit over the same asset, this matter was abusive of the court process. That objection was disposed by the directions of the court made on the 5.6.2024 that determined it meritless.
After a considerable period of time of back and forth on the Respondent filling a replying affidavit, the same was at long last sworn on 5th November 2024 and another supplementary affidavit on sworn on 24th January 2025.
In the replying affidavit, the Respondent asserts that despite the fact that he applied to the trial court in Kahawa Law Courts, CR. E048 of 2022 and obtained an order for the release of his motor vehicle KCU 595H, the applicant totally refused to have same the released hence disobeying the court order.
It is also contended that the forfeiture order having been issued on 21/11/2023 had a life span of 90 days and had to be served upon him within 21 days after issue but was never served till the 9/2/2024 hence the current application was filed when the preservative order had lapsed. Further contention is that no leave was sought and obtained to serve the order out of time and that he had never been involved in any money laundering crime. He asserted being a businessman running a wholesale business in Marsabit selling foodstuff and everyday goods besides executing Government contracts which continue as pending bills.
On that basis he asserts that motor vehicle KCU 595H was legitimately acquired from hard earned money from retirement dues, operation of a shop and the tender proceeds, and way before the investigations against him commenced.
He faults the suspicion against him as baseless and merely based on the letter by DCI, Transitional Organised Crime Unit as contrasted with the decision of a court of competent jurisdiction in Kahala CR. C NO E048/2022, in which the Respondent was never a party but the applicant has not revealed to him the outcome.
Criminal case No. E313 was pointed out to have been never against the Respondent but that the parties therein were eventually acquitted of any wrong doing. It was stressed that even though motor vehicle KAU 599H was registered in 2021, it was in fact acquired long before then and well before the investigations in this matter commenced and that he was never aware that the employees were using the motor vehicle as alleged but that he had since reprimanded them.
On the sums received from Sharifadin Abdda Sharriff, it was asserted that the same were daily by sale proceeds of an employee of the Respondent in Marsabit. He then exhibited shop sales records and averred that his customers were widespread throughout North Eastern area and he was incapable of tracking all of them hence the use of Mpesa in most transactions. He reiterated that his money was legitimately derived and that the suspicion by the applicant were but just suspicious without grounds and prayed that the application be dismissed.
With the leave of the court, the Applicant filed a supplementary affidavit and explained that the application for release of the motor vehicle was done contrary to the preservation order and that when that fact was brought to the courts attention the court, it downed its tools.
On the contention that the application was filed after the lapse of 90 days, the applicant takes the view that the 90 days is reckoned from the date of gazettement.
On service upon the Respondent, it was pointed out that once the Respondent was summoned to record statements, he abandoned the use of his known telephone numbers and resorted to using phone numbers registered in other people’s names, became evasive and elusive thus making it near impossible to serve documents upon him.
On the legitimacy of the sources of income, the applicant points out that the business permits exhibited were only for the year 2023 yet the investigation covered 2019 to 2023. It was further pointed out that the documents exhibited in the replying Affidavit disclose no connection with the Respondent for the telephone numbers revealed belong to Philip Onyapidi and Ali Orto. Further investigators revealed that Philip Onyapidi is neither known to Respondent nor was he ever his employee nor an employee of the Marsabit County hence the use of his telephone number was forgery. On the other end, Ali also admitted knowing the Respondent but denied any business transactions with him.
It was then posted that the investigation and analysis of the suspect’s Mpesa accounts revealed that one Guyo Marta sent to and received money from one Mohammed Sahem Sharriff, a convict of trafficking in the sum of Kshs.110,000, just as the same Guyo sent money to the Respondent, thus establishing an intricate web of illicit financial flow. That the Respondent relied on Mpesa numbers belonging to people involved in illegal business of human trafficking to demonstrate that the Respondent is using the wholesale shop as a decoy to hide the true business and source of the funds deposited in his accounts. In any event, the documents marked MS6 show that purchases were made in September 2022 while the suspected transactions were for the month of June, 2022 hence those transactions have not been demonstrated to be legitimate.
On whether the Respondent has been adjudged culpable, the applicant contends and asserts that being civil in nature, it is immaterial whether the Respondent has been charged and tried of any crime and that it is sufficient that the Respondent received huge deposits into his bank and Mpesa accounts. Stress was made on its fact that the period under investigations was between 2010 and 2013, when the subject motor vehicle was registered and within the control of the Respondent hence it was an instrumentality of crime. In addition, it was reiterated that there had been established that there was a commercial relationship between the Respondent and the two convicts, Sharifdin Abdala and Mohammed Salim Samal, in Kahawa CR. C No. E048 of 2022 and the Respondent failed to demonstrate what legitimate transactions were taking place between them. It was thus underscored that not even a letter of employment was exhibited to support the allegation that Sharifudin was a store keeper.
On further allegation that there was income from the shop sales, it is pointed out that the documents marked MSA 11 depicts no single purchase by persons named in prayer 16 of the supporting affidavit hence no reliable evidence exists. Moreover, a confirmation from the KRA show that the Respondent had never filed any returns thus proving the true sources of his funds to be illicit. From the material availed in the supplementary affidavit and the affidavit in support, the applicant prays that the application be allowed as prayed.
When served with the supplementary Affidavit, the respondent file his own supplementary affidavit, rather than a Replying Affidavit, sworn on the 24th January, 2025 whose purpose was to respond to the Applicant’s supplementary Affidavit. In the Affidavit, the respondent asserts that he bought the subject motor vehicle before the year 2020 and that the applicant does not contest having illegally held the motor vehicle contrary to the court orders for a period of 60 days. He reiterates being a retiree who accumulated the money to purchase the vehicle from years of work, business and supply tenders. He adds that if there had been any illegality on his part, he would not have supplied tenders to the government and that all the transactions were verified to be above board a fact the applicant had concealed from the court.
It was then contended that the information allegedly received from Phillip Onyapidi, Ali Orto, Safia Orto and Guyo Mata needed to be subjected to cross examination or at least ought to have been put in an affidavit. He asserts that it is not the law that the 90 days period be computed from the date of the gazettement rather than the date of the order. He also denied having been elusive after recording the statement with the applicant and insisted that he maintains the number to date. He again denied having been involved in crime, asserted that purchase of the property was as a result of accumulation of wealth and prayed that the motor vehicle be spared from being forfeited.
As ordered by the court, both sides filed sets of submissions which the court has had a chance to read and appreciate and will only summarise the highlights in this decision.
The applicant filed two sets of submissions; the submissions and supplementary submissions which are evidently a response to the respondent’s submissions.
In the main submissions, the applicant having set out the background facts of the case, the standards of proof and what asset qualifies for forfeiture and the two issues desired to be decided by the court, cites to court the decisions in William Kabogo vs George Thuo(2010)1 KLR on what amounts to proof on a balance of probabilities, Pamela Aboo vs Asset Recvery Urgency , Civil Appeal No 452 of 2019, on the incidences of legal and evidential burden and the consequence of failure to discharge , Schabir Shaik & others vs State Case CCT 86/06/(2008) ZACC 7 on rational for the very wide definition of the term proceeds of crime being to obviate the possibilities of sophisticated criminals avoiding confiscation by camouflage, National Director of Public Prosecutions Vs R Cook Properties(PTY) Ltd must be interpreted to mean that for a property to be an instrumentality of a crime , it must have been employed in a reasonably direct role in the commission of the offence and National Director of Public Prosecutions Vs Samuel & Others (9863/2016) (2023) ZAKZDHC 38 for the proposition that the object of forfeiture is to deny the criminal the benefit of the illicit wealth.
For the respondent, the submissions dated 4/11/2024 prays that the application for forfeiture be dismissed on two points; that the forfeiture application doesn’t lie for there is in existence no valid preservation order and secondly that the applicant has failed to discharge its burden under section 92 of POCAMLA by proving that the property sought to be forfeited was intended for use in commission of an offence or is a proceed of crime.
On the validity of the preservation order, the Respondent submits that it is an imperative of section 90 of POCAMLA, that the forfeiture order be sought only when there is a preservation order in force. Put in the context of this matter, the Respondent contends that the preservation order having been issued on the 21/11/2022, to last for 90 days, the same lapsed on 21/2/2023 hence when the forfeiture application was made on 26/2/2023, the preservatory order had lapsed and the forfeiture application thus has no pedestal upon which to rest and was thus incompetent and void.
In addition, it is asserted that the preservation order having not been served within 21days, the same stood quashed by such default and thus the application is made void ab initio.
The decision in Asset Recovery Agency – vs – Hamed [2022] KEHC 16392 was cited for the proposition that where the Respondent proves the sources of the Asset, the application for forfeiture fails. The decision in Asset Recovery Agency – VS – Charity Wangui Getti [2018] KEHC 1421(KLR) was also cited for the proposition that it is the applicant’s duty to prove that the motor vehicle is a proceed of crime.
The decisions are cited to support the Respondents case that he is a retiree who worked in Saudi Arabia for more than a decade and on retirement engaged in a business of operating a wholesale shop in Marsabit as well as the supply of milk and meat to various vendors besides the business of selling camels and goats. He asserts that his money is legitimately earned and the money is traceable from the said streams of business.
In the submissions, the Respondent took the view that the only issue for determination in the matter is whether motor vehicle KCU 599H Was directly or indirectly used or acquired from the commission of the offence or in connection with one, on a proportionate basis or if the same had been converted or transformed with or intermingled with proceeds of crime.
Issues, Analysis and determination
Having studied the papers filed including the submissions, the court discerns the sole issue for determination to be whether motor vehicle KCU 599H is amenable for forfeiture under the provisions of Proceeds of Crime And Anti-Money Laundering Act?
Before delving into the issue isolated, the court observes that the respondent has raised a technical issue of whether the application was filed in time or outside. The respondent urges that having been filed beyond the 90 days after the preservation order was issued, the application was bad because the preservation order lapsed on the 90th day and therefore when the forfeiture application was filed, there was no preservation order in place and this application thus ought to be struck out for having been filed out of time.
The court is of the opinion that the object of section 83 of the Act is to safeguard the right of every person, who may be interested in the preserved property including the respondent named, to be heard before further adverse orders are made in relation to the said property. The respondent’s attack on the validity of the preservation order and the application for forfeiture is on computation of the period of 90 days. He contends that the time is reckoned with from the date of issue of the order while the applicant asserts that the computation begins on the day the order is gazetted.
While the question whether there was a preservation order in force as at the date the application for forfeiture was filed is a germane, on the basis of section 90 of the Act, and going to the root and propriety of the matter, when the time starts to run should not be an issue on the plain reading of section 84 of the Act. The provision sets the clock to start ticking on the date the order is published in the gazette.
By the documents annexed and marked by the applicant as annextures BM4 and 5, it is not in doubt that the order was made on the 21.11.2023 and gazetted on the 08.12.2023.
Having been so gazetted on the 8th of December, 2024, the preservation order remained valid until about the 9th March 2024. It thus follows that when the instant application was filed on the 26th February 2024, it was filed on the strength and during the validity of the preservation order. The court finds no merit or ingenuity on the fault against the application. That challenge fails and is dismissed.
On the merits, by dint of section 90 of the Act, the court has jurisdiction to make any appropriate orders provided the court gets satisfied that there was sufficient service upon the Respondent and that the Agency has demonstrated by evidence sufficient material to merit the order sought.
As in all civil cases, every order of the court must be made judiciously; upon reasons and for final orders like a forfeiture order, upon establishment of a case within the balance of probabilities that the subject property has been used or intended in the use for commission of an offence of if it is proved to be a proceed of crime.
In this matter, the applicant targets the motor vehicle as an instrumentality of a crime rather than a proceed of crime. By the Affidavit in support of the originating Summons, the applicant’s deponent, Bedford Muriuki, as the investigator for the applicant deponed and has exhibited documents, including witness statements by two Eritreans who were arrested while aboard the subject motor vehicle. The two were later established to have been victims of human trafficking. They gave a detailed account how they boarded the motor vehicle at the Ethiopian border and were transported up to where they were intercepted by the police. The Eritreans disclosed that they had each been charged Kshs 13,000 as facilitation fees from the border to Nairobi. They recounted having been driven on a rough road and through the bushes in Motor vehicle Reg KCU 595H.
When asked to give his side of the story, the respondent recorded a statement dated 27.9.2023 and admitted having sent his workers for some assignment in Rumuruti and that the victims were carried in the motor vehicle without his consent.
The said two workers of the respondent were charged, tried and convicted of the offence of trafficking in persons. When the respondent’s bank and Mpesa accounts were investigated and analysed, suspicious deposits were noted including a sum of Kshs 497,000 from Sharifadin Abdala Shariff, one of the workers who was convicted for trafficking in persons, on the day the foreigners were intercepted while being ferried by Shariffadin in the subject motor vehicle. The respondent equally sent to the two convicts a sum of Kshs 233,450 allegedly for checking on his livestock and for food for other workers.
It is thus the position of the applicant that the respondent had received money into his account as proceeds of crime and the motor vehicle was demonstrated to have been used in the commission of the crime of trafficking in persons.
Even though there was serious demonstration that some tainted money could have found its way into the bank and Mpesa accounts and possession of the respondent, the originating motion only targets the motor vehicle KCU 595H and no more.
Based on the evidence on record, including the statements by the respondent that the two convicts were indeed his employees who indeed ferried the victims of trafficking in persons in the subject motor vehicle, albeit without his authority, the court finds that, the employment of the motor vehicle in the commission of the crime has been sufficiently proved on a balance of probabilities. The court finds that the threshold of granting order for forfeiture under section 92 have been met by the applicant who is thus entitled to the reliefs sought.
In coming to this conclusion, the court appreciates that there is no direct nexus between the respondent and the offence. However, the court equally appreciates the provision of sections 82(2) and 92(1) to target the property used as an instrumentality without necessarily the involvement of the owner in such commission. It is enough that the property was in the possession of the person committing the offence with the knowledge and authority of the owner.
The court thus grants the orders of forfeiture as well as ancillary orders as follows: -
Motor Vehicle Registration Number KCU 595H, CHASIS/FRAME NO. JTELB71J20-7723469, TOYOTA Pick-up, registered in the name of the respondent, MUHSAN SHARIFF ABDIKADIR, having been used for the commission of the criminal offence of Trafficking in persons, is liable for forfeiture and thus forfeited to the Applicant on behalf of the Government.
The Director, National Transport and Safety Authority, is directed and ordered to effect transfer of the motor vehicle in favour of the Agency.
Having succeeded, the applicant is awarded the costs of the suit.
Dated, signed and delivered Virtually, this 27th day of January, 2025
Patrick J O Otieno
Judge
IN THE HIGH COURT OF KENYA AT NAIROBI
ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION MILIMANI
ACEC SUIT NO. E004 OF 2024
ASSETS RECOVERY AGENCY ……………………………….………………. APPELLANT
VERSUS
MUHSAN SHARIFF ABDIKADIR …………..…………….………………… RESPONDENT
JUDGMENT
Pursuant to the provisions of sections 90 and 92 of the Proceeds of Crime and Anti – Money laundering Act (No.9 of 2009), the Asset Recovery Agency, (hereinafter, the Agency) filed the originating summons dated 20/2/2024 and made a prayer in the main, that the motor vehicle Registration No. KCU 595H, CHASIS/FRAMENO JT ELB 71520 – 7723469, registered in the name of the Respondent is a proceed of crime and liable for forfeiture; that the said motor vehicle be forfeited to the Agency on behalf of the Government; that an order be issued directed at the Director, National Transport and Safety Authority, to transfer the ownership of the motor vehicle in favour of the government; that any other ancillary order be made as deemed necessary for the proper and effective execution of court’s orders and lastly that costs be provided for.
The application was supported by an affidavit sworn by one Bedford Muriuki, the investigating officer attached with the agency whose gist was that on receipt of information in the year 2022, the agency opened an inquiry file No.52 of 2022 to inquire and investigate into the activities of the Respondent in connection with the offence of trafficking in persons using motor vehicle number KCU 585H. The inquiry led to the arrest, and charge in Kahawa Law Courts, Cr Case No. E048 of 2022 of the people suspected to be employees of the Respondent. The two faced the charge of Trafficking 21 Eritreans for purposes of exploitation by means of deception.
Further investigation revealed that accounts associated with the Respondent received suspicious cash deposits from unknown individual with some suspected to be money obtained from illegitimate business of trafficking in persons and therefore the motor vehicle was itself a proceed of crime obtained from illegitimate business of trafficking in persons.
There was filed on the 18/3/2024, an affidavit sworn by one Vincent Osako Oichoe to demonstrate that the originating summons was served upon the Respondent by way of WhatsApp, after the Respondent failed to answer his phone, through Telephone No.0715 300888 at 11.54am.
On the 5/4/2024, MS Albert M Wakori & Co. Advocate filed a notice of appointment of advocate to come on record as representing the Respondent. On the same date the counsel equally filed a notice of preliminary objection asserting that there having been a previous suit over the same asset, this matter was abusive of the court process. That objection was disposed by the directions of the court made on the 5.6.2024 that determined it meritless.
After a considerable period of time of back and forth on the Respondent filling a replying affidavit, the same was at long last sworn on 5th November 2024 and another supplementary affidavit on sworn on 24th January 2025.
In the replying affidavit, the Respondent asserts that despite the fact that he applied to the trial court in Kahawa Law Courts, CR. E048 of 2022 and obtained an order for the release of his motor vehicle KCU 595H, the applicant totally refused to have same the released hence disobeying the court order.
It is also contended that the forfeiture order having been issued on 21/11/2023 had a life span of 90 days and had to be served upon him within 21 days after issue but was never served till the 9/2/2024 hence the current application was filed when the preservative order had lapsed. Further contention is that no leave was sought and obtained to serve the order out of time and that he had never been involved in any money laundering crime. He asserted being a businessman running a wholesale business in Marsabit selling foodstuff and everyday goods besides executing Government contracts which continue as pending bills.
On that basis he asserts that motor vehicle KCU 595H was legitimately acquired from hard earned money from retirement dues, operation of a shop and the tender proceeds, and way before the investigations against him commenced.
He faults the suspicion against him as baseless and merely based on the letter by DCI, Transitional Organised Crime Unit as contrasted with the decision of a court of competent jurisdiction in Kahala CR. C NO E048/2022, in which the Respondent was never a party but the applicant has not revealed to him the outcome.
Criminal case No. E313 was pointed out to have been never against the Respondent but that the parties therein were eventually acquitted of any wrong doing. It was stressed that even though motor vehicle KAU 599H was registered in 2021, it was in fact acquired long before then and well before the investigations in this matter commenced and that he was never aware that the employees were using the motor vehicle as alleged but that he had since reprimanded them.
On the sums received from Sharifadin Abdda Sharriff, it was asserted that the same were daily by sale proceeds of an employee of the Respondent in Marsabit. He then exhibited shop sales records and averred that his customers were widespread throughout North Eastern area and he was incapable of tracking all of them hence the use of Mpesa in most transactions. He reiterated that his money was legitimately derived and that the suspicion by the applicant were but just suspicious without grounds and prayed that the application be dismissed.
With the leave of the court, the Applicant filed a supplementary affidavit and explained that the application for release of the motor vehicle was done contrary to the preservation order and that when that fact was brought to the courts attention the court, it downed its tools.
On the contention that the application was filed after the lapse of 90 days, the applicant takes the view that the 90 days is reckoned from the date of gazettement.
On service upon the Respondent, it was pointed out that once the Respondent was summoned to record statements, he abandoned the use of his known telephone numbers and resorted to using phone numbers registered in other people’s names, became evasive and elusive thus making it near impossible to serve documents upon him.
On the legitimacy of the sources of income, the applicant points out that the business permits exhibited were only for the year 2023 yet the investigation covered 2019 to 2023. It was further pointed out that the documents exhibited in the replying Affidavit disclose no connection with the Respondent for the telephone numbers revealed belong to Philip Onyapidi and Ali Orto. Further investigators revealed that Philip Onyapidi is neither known to Respondent nor was he ever his employee nor an employee of the Marsabit County hence the use of his telephone number was forgery. On the other end, Ali also admitted knowing the Respondent but denied any business transactions with him.
It was then posted that the investigation and analysis of the suspect’s Mpesa accounts revealed that one Guyo Marta sent to and received money from one Mohammed Sahem Sharriff, a convict of trafficking in the sum of Kshs.110,000, just as the same Guyo sent money to the Respondent, thus establishing an intricate web of illicit financial flow. That the Respondent relied on Mpesa numbers belonging to people involved in illegal business of human trafficking to demonstrate that the Respondent is using the wholesale shop as a decoy to hide the true business and source of the funds deposited in his accounts. In any event, the documents marked MS6 show that purchases were made in September 2022 while the suspected transactions were for the month of June, 2022 hence those transactions have not been demonstrated to be legitimate.
On whether the Respondent has been adjudged culpable, the applicant contends and asserts that being civil in nature, it is immaterial whether the Respondent has been charged and tried of any crime and that it is sufficient that the Respondent received huge deposits into his bank and Mpesa accounts. Stress was made on its fact that the period under investigations was between 2010 and 2013, when the subject motor vehicle was registered and within the control of the Respondent hence it was an instrumentality of crime. In addition, it was reiterated that there had been established that there was a commercial relationship between the Respondent and the two convicts, Sharifdin Abdala and Mohammed Salim Samal, in Kahawa CR. C No. E048 of 2022 and the Respondent failed to demonstrate what legitimate transactions were taking place between them. It was thus underscored that not even a letter of employment was exhibited to support the allegation that Sharifudin was a store keeper.
On further allegation that there was income from the shop sales, it is pointed out that the documents marked MSA 11 depicts no single purchase by persons named in prayer 16 of the supporting affidavit hence no reliable evidence exists. Moreover, a confirmation from the KRA show that the Respondent had never filed any returns thus proving the true sources of his funds to be illicit. From the material availed in the supplementary affidavit and the affidavit in support, the applicant prays that the application be allowed as prayed.
When served with the supplementary Affidavit, the respondent file his own supplementary affidavit, rather than a Replying Affidavit, sworn on the 24th January, 2025 whose purpose was to respond to the Applicant’s supplementary Affidavit. In the Affidavit, the respondent asserts that he bought the subject motor vehicle before the year 2020 and that the applicant does not contest having illegally held the motor vehicle contrary to the court orders for a period of 60 days. He reiterates being a retiree who accumulated the money to purchase the vehicle from years of work, business and supply tenders. He adds that if there had been any illegality on his part, he would not have supplied tenders to the government and that all the transactions were verified to be above board a fact the applicant had concealed from the court.
It was then contended that the information allegedly received from Phillip Onyapidi, Ali Orto, Safia Orto and Guyo Mata needed to be subjected to cross examination or at least ought to have been put in an affidavit. He asserts that it is not the law that the 90 days period be computed from the date of the gazettement rather than the date of the order. He also denied having been elusive after recording the statement with the applicant and insisted that he maintains the number to date. He again denied having been involved in crime, asserted that purchase of the property was as a result of accumulation of wealth and prayed that the motor vehicle be spared from being forfeited.
As ordered by the court, both sides filed sets of submissions which the court has had a chance to read and appreciate and will only summarise the highlights in this decision.
The applicant filed two sets of submissions; the submissions and supplementary submissions which are evidently a response to the respondent’s submissions.
In the main submissions, the applicant having set out the background facts of the case, the standards of proof and what asset qualifies for forfeiture and the two issues desired to be decided by the court, cites to court the decisions in William Kabogo vs George Thuo(2010)1 KLR on what amounts to proof on a balance of probabilities, Pamela Aboo vs Asset Recvery Urgency , Civil Appeal No 452 of 2019, on the incidences of legal and evidential burden and the consequence of failure to discharge , Schabir Shaik & others vs State Case CCT 86/06/(2008) ZACC 7 on rational for the very wide definition of the term proceeds of crime being to obviate the possibilities of sophisticated criminals avoiding confiscation by camouflage, National Director of Public Prosecutions Vs R Cook Properties(PTY) Ltd must be interpreted to mean that for a property to be an instrumentality of a crime , it must have been employed in a reasonably direct role in the commission of the offence and National Director of Public Prosecutions Vs Samuel & Others (9863/2016) (2023) ZAKZDHC 38 for the proposition that the object of forfeiture is to deny the criminal the benefit of the illicit wealth.
For the respondent, the submissions dated 4/11/2024 prays that the application for forfeiture be dismissed on two points; that the forfeiture application doesn’t lie for there is in existence no valid preservation order and secondly that the applicant has failed to discharge its burden under section 92 of POCAMLA by proving that the property sought to be forfeited was intended for use in commission of an offence or is a proceed of crime.
On the validity of the preservation order, the Respondent submits that it is an imperative of section 90 of POCAMLA, that the forfeiture order be sought only when there is a preservation order in force. Put in the context of this matter, the Respondent contends that the preservation order having been issued on the 21/11/2022, to last for 90 days, the same lapsed on 21/2/2023 hence when the forfeiture application was made on 26/2/2023, the preservatory order had lapsed and the forfeiture application thus has no pedestal upon which to rest and was thus incompetent and void.
In addition, it is asserted that the preservation order having not been served within 21days, the same stood quashed by such default and thus the application is made void ab initio.
The decision in Asset Recovery Agency – vs – Hamed [2022] KEHC 16392 was cited for the proposition that where the Respondent proves the sources of the Asset, the application for forfeiture fails. The decision in Asset Recovery Agency – VS – Charity Wangui Getti [2018] KEHC 1421(KLR) was also cited for the proposition that it is the applicant’s duty to prove that the motor vehicle is a proceed of crime.
The decisions are cited to support the Respondents case that he is a retiree who worked in Saudi Arabia for more than a decade and on retirement engaged in a business of operating a wholesale shop in Marsabit as well as the supply of milk and meat to various vendors besides the business of selling camels and goats. He asserts that his money is legitimately earned and the money is traceable from the said streams of business.
In the submissions, the Respondent took the view that the only issue for determination in the matter is whether motor vehicle KCU 599H Was directly or indirectly used or acquired from the commission of the offence or in connection with one, on a proportionate basis or if the same had been converted or transformed with or intermingled with proceeds of crime.
Issues, Analysis and determination
Having studied the papers filed including the submissions, the court discerns the sole issue for determination to be whether motor vehicle KCU 599H is amenable for forfeiture under the provisions of Proceeds of Crime And Anti-Money Laundering Act?
Before delving into the issue isolated, the court observes that the respondent has raised a technical issue of whether the application was filed in time or outside. The respondent urges that having been filed beyond the 90 days after the preservation order was issued, the application was bad because the preservation order lapsed on the 90th day and therefore when the forfeiture application was filed, there was no preservation order in place and this application thus ought to be struck out for having been filed out of time.
The court is of the opinion that the object of section 83 of the Act is to safeguard the right of every person, who may be interested in the preserved property including the respondent named, to be heard before further adverse orders are made in relation to the said property. The respondent’s attack on the validity of the preservation order and the application for forfeiture is on computation of the period of 90 days. He contends that the time is reckoned with from the date of issue of the order while the applicant asserts that the computation begins on the day the order is gazetted.
While the question whether there was a preservation order in force as at the date the application for forfeiture was filed is a germane, on the basis of section 90 of the Act, and going to the root and propriety of the matter, when the time starts to run should not be an issue on the plain reading of section 84 of the Act. The provision sets the clock to start ticking on the date the order is published in the gazette.
By the documents annexed and marked by the applicant as annextures BM4 and 5, it is not in doubt that the order was made on the 21.11.2023 and gazetted on the 08.12.2023.
Having been so gazetted on the 8th of December, 2024, the preservation order remained valid until about the 9th March 2024. It thus follows that when the instant application was filed on the 26th February 2024, it was filed on the strength and during the validity of the preservation order. The court finds no merit or ingenuity on the fault against the application. That challenge fails and is dismissed.
On the merits, by dint of section 90 of the Act, the court has jurisdiction to make any appropriate orders provided the court gets satisfied that there was sufficient service upon the Respondent and that the Agency has demonstrated by evidence sufficient material to merit the order sought.
As in all civil cases, every order of the court must be made judiciously; upon reasons and for final orders like a forfeiture order, upon establishment of a case within the balance of probabilities that the subject property has been used or intended in the use for commission of an offence of if it is proved to be a proceed of crime.
In this matter, the applicant targets the motor vehicle as an instrumentality of a crime rather than a proceed of crime. By the Affidavit in support of the originating Summons, the applicant’s deponent, Bedford Muriuki, as the investigator for the applicant deponed and has exhibited documents, including witness statements by two Eritreans who were arrested while aboard the subject motor vehicle. The two were later established to have been victims of human trafficking. They gave a detailed account how they boarded the motor vehicle at the Ethiopian border and were transported up to where they were intercepted by the police. The Eritreans disclosed that they had each been charged Kshs 13,000 as facilitation fees from the border to Nairobi. They recounted having been driven on a rough road and through the bushes in Motor vehicle Reg KCU 595H.
When asked to give his side of the story, the respondent recorded a statement dated 27.9.2023 and admitted having sent his workers for some assignment in Rumuruti and that the victims were carried in the motor vehicle without his consent.
The said two workers of the respondent were charged, tried and convicted of the offence of trafficking in persons. When the respondent’s bank and Mpesa accounts were investigated and analysed, suspicious deposits were noted including a sum of Kshs 497,000 from Sharifadin Abdala Shariff, one of the workers who was convicted for trafficking in persons, on the day the foreigners were intercepted while being ferried by Shariffadin in the subject motor vehicle. The respondent equally sent to the two convicts a sum of Kshs 233,450 allegedly for checking on his livestock and for food for other workers.
It is thus the position of the applicant that the respondent had received money into his account as proceeds of crime and the motor vehicle was demonstrated to have been used in the commission of the crime of trafficking in persons.
Even though there was serious demonstration that some tainted money could have found its way into the bank and Mpesa accounts and possession of the respondent, the originating motion only targets the motor vehicle KCU 595H and no more.
Based on the evidence on record, including the statements by the respondent that the two convicts were indeed his employees who indeed ferried the victims of trafficking in persons in the subject motor vehicle, albeit without his authority, the court finds that, the employment of the motor vehicle in the commission of the crime has been sufficiently proved on a balance of probabilities. The court finds that the threshold of granting order for forfeiture under section 92 have been met by the applicant who is thus entitled to the reliefs sought.
In coming to this conclusion, the court appreciates that there is no direct nexus between the respondent and the offence. However, the court equally appreciates the provision of sections 82(2) and 92(1) to target the property used as an instrumentality without necessarily the involvement of the owner in such commission. It is enough that the property was in the possession of the person committing the offence with the knowledge and authority of the owner.
The court thus grants the orders of forfeiture as well as ancillary orders as follows: -
Motor Vehicle Registration Number KCU 595H, CHASIS/FRAME NO. JTELB71J20-7723469, TOYOTA Pick-up, registered in the name of the respondent, MUHSAN SHARIFF ABDIKADIR, having been used for the commission of the criminal offence of Trafficking in persons, is liable for forfeiture and thus forfeited to the Applicant on behalf of the Government.
The Director, National Transport and Safety Authority, is directed and ordered to effect transfer of the motor vehicle in favour of the Agency.
Having succeeded, the applicant is awarded the costs of the suit.
Dated, signed and delivered Virtually, this 27th day of January, 2025
Patrick J O Otieno
Judge