Whether the funds held in the respondents’ accounts are proceeds of crime;
45.Part VIII of POCAMLA, under which the present application has been lodged, provides for civil forfeiture of assets where there is reasonable ground to believe that the assets are proceeds of crime. Section 92(1) ofPOCAMLA provides that:
46.The burden placed on the Agency in an application such as this is to establish, on a balance of probabilities, that the assets at issue are proceeds of crime. It will have done so if it places before the court evidence that shows, on a balance of probabilities, that the respondents have funds or assets in excess of their known legitimate sources of income. Where the Agency meets this burden, the respondents are under an evidential duty to demonstrate that they have a legitimate source of the assets at issue. Should they fail to do this, then forfeiture orders would issue. The Court of Appeal explained this succinctly in its decision in Stanley Mombo Amuti v Kenya Anti-Corruption Commission  eKLR when it considered section 55 of the Anti-corruption and Economic Crimes Act and stated as follows:
47.Once the Agency has established, on a balance of probabilities, that a party has funds or other assets reasonably suspected to be proceeds of crime, such a party has to prove that the funds or assets are from a legitimate source. In the words of the Court of Appeal in Amuti: ‘prove it or lose it.’
48.The evidence placed before this court by the Agency is that on diverse dates between November 2013 and February 2020, the 1st respondent’s account number 100026128XXXX received suspicious funds in cash amounting to Kshs 51,413 495.50. Out of this amount, only Kshs 10,558,843.00 was from the 1st respondent’s salary with the County Government as an analysis of his bank statements revealed. The 1st respondent had, in the same period, withdrawn Kshs 10, 410,574.50. The inference that the Agency asks the court to draw, which I find reasonable, is that the 1st respondent had withdrawn and spent the entire amount that he legitimately earned from the Mandera County Government.
49.An analysis of the tabulation of the receipt of funds in the 1st respondent’s account set out in Cpl Musyoki’s affidavit, which has not been controverted, shows that the 1st respondent received into his account a total of Kshs 40,360,500 between November 2013 and December 2019 whose source is not indicated. A sampling of the deposits indicates that funds were deposited, sometimes only days apart, in tranches ranging from Kshs 50,000 to Kshs 5,000,500. During that same period, the 1st respondent, who was employed as the Director of Livestock Production by the Mandera County Government, received Kshs 10,558,843/- as salary and other emoluments.
50.It is the Agency’s evidence further that within a period of 19 months, the 1st and 2nd respondents’ bank account number 058027748XXXX held at Equity Bank, Mandera Branch, received suspicious cash deposits totaling to Kshs 21,448,100.00. This amount was received between July 27, 2018 and February 8, 2020. The evidence shows that on a single day, July 27, 2018, the same day that the account appears to have been opened, three deposits of Kshs 2,000,000 were made in the said account. On September 26, 2018, October 17, 2018, and November 20, 2018, Kshs 900,000 were deposited into the said account, while Kshs 800,000 was deposited into the account on October 26, 2018. Similar deposits were made throughout 2018 and 2019, the last deposit into the account being on February 8, 2020. From the time the account was opened and throughout this 19-month period, the evidence presented by the Agency shows that no single withdrawal was made from the account.
51.The 1st respondent explains the source of the funds in his account number 100026128XXXX as being from his salary from the Mandera County Government, his business as a livestock trader, bee keeper, a cereal agent and from the importation and selling of beans. The explanation with respect to the funds held in account number 058027748XXXX held jointly with his wife, the 2nd respondent, is that the funds are from her businesses. The 2nd respondent, he avers, is a clothes trader in Garisssa who specialises in wedding dresses imported from Dubai through agents in Nairobi. She is also a livestock trader and is an agent for export butchers in Nairobi and Mombasa. Regarding the Kshs 6 million deposited in the joint account on July 27, 2018, the explanation from the respondents is that it is an inheritance that the 2nd respondent received from her late father after the sale of 60 camels. No evidence is placed before the court to show that the estate of the 2nd respondent’s father was distributed and to whom, that part of the estate comprised 60 camels, and to whom the said camels were sold.
52.In support of their contentions that the funds in their accounts are from their livestock businesses, bee keeping and inheritance, the respondents have only placed before the court letters from the Mandera and Garissa County Government stating that they are known them. The letters are from the Ministry of Agriculture, Irrigation, Livestock and Fisheries, Mandera Country. As noted by the Agency in its deposition, this is where the 1st respondent used to work as the County Director of Livestock, and the probative value of such letters is highly debatable. That notwithstanding, however. such documentation, in my view, are not evidence of business, nor do they support the very substantial deposits made into the respondents’ accounts. There is nothing before me that shows that the respondents were engaged in any business that would generate the kind of funds deposited in their accounts.
53.The Agency seeks forfeiture of the funds in the two accounts the subject of this application on the basis that such funds are proceeds of crime. Section 2 of POCAMLA defines ‘proceeds of crime’ as follows:
55.In Schabir Shaik & Others v State Case CCT 86/06(2008) ZACC 7 it was held that:
56.In issuing an order for recovery of money found to be proceeds of crime, the court in Assets Recovery Agency –vs- Rohan Anthony Fisher and & Others (supra) observed that:
57.A burden is placed on a party against whom proceedings such as are presently before me are brought to show a legitimate source of funds once the agency places evidence before the court that shows, on a balance of probabilities, that the funds or assets at issue are proceeds of crime. In Asset Recovery Agency v Lillian Wanja Muthoni Mbogo & others  eKLR, this court observed that:
58.Having considered the respondents’ pleadings and documents in support of their case, I am constrained to find that they have been unable to place before the court any evidence that shows a legitimate source of the funds in their accounts. In support of their contention that they are livestock dealers, they have annexed letters from the County Governments of Mandera and Garissa, as well as livestock movement permits. These are not evidence of a business dealing in livestock, let alone such a lucrative one as would generate the funds in the subject accounts. The respondents have also claimed to be agents of Moyale Pulse and Cereals Distributors. If indeed the 1st respondent was an agent of this company or any other, nothing hindered their business associates from swearing affidavits to support the respondents’ claims and place evidence before the court that they pay them a commission.
60.The respondents have also deposed that the funds in their joint account are from the 2nd respondent’s business and other businesses that they engage in. A scrutiny of the statements of account in respect of this account reveals, however, that there have been no withdrawals from the said account since it was opened, which begs the question: how do the respondents purchase the goods that they allege that they trade in? A similar scenario played out in the case of Assets Recovery Agency v Pamela Aboo; Ethics & Anti Corruption Commission (Interested Party) (supra) in which the court made the following observation:
61.Having considered all the evidence and submissions on this issue, I am satisfied that the applicant established, on a balance of probabilities, that the funds in the respondents’ account are proceeds of crime. The respondents have not placed any evidence before me that would show that the funds have a legitimate source.
Whether an order for forfeiture violates the respondents’ constitutional right to property and presumption of innocence
68.The respondents contend that an order for forfeiture in respect of the funds held in their accounts violates their constitutional rights. They allege a violation of their right to property under Article 40 and the presumption of innocence under Article 50(2)(a).
69.It cannot be disputed that Article 40 of the Constitution guarantees to all the right to property. However, Article 40(6) provides that “The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.”
70.In the case of Teckla Nandjila Lameck vs President of Namibia (supra) the court held that:
71.A similar finding was made in the case of Martin Shalli vs-Attorney General of Namibia (supra) in which the court stated that:
73.As this court has found earlier in this analysis, the respondents have funds in their accounts which the Agency has shown, on a balance of probabilities, are proceeds of crime. The respondents have not been able to demonstrate that they have a legitimate source of these funds. Such funds are therefore not protected under the constitutional guarantee in Article 40. Their forfeiture to the state does not therefore violate the constitutionally guaranteed protection of property.
74.The respondents have also submitted that issuance of forfeiture orders will violate their constitutional guarantee to presumption of innocence. Again, there can be no dispute that under Article 50(2)(a), every accused person has the right to a fair trial, which includes the right to be presumed innocent until the contrary is proved. This right, however, like the other rights guaranteed under Article 50(2), relates to a criminal trial. It has no application in civil proceedings such as are currently before me, which are civil in nature. As stated earlier, the Agency is required to show, on a balance of probabilities, that the assets at issue are proceeds of crime, thereby casting the reverse burden on the respondents to show that the assets have a legitimate source- see Assets Recovery Agency v Pamela Aboo  eKLR).
76.In declining to find that the issuance of a forfeiture order would violate the constitutional right to be presumed innocent, Ong’udi J concluded that:
78.The Agency seeks in this application civil forfeiture of funds reasonably believed to be proceeds of crime. The respondents have been afforded an opportunity to explain the legitimate source of their funds as required under Part VIII ofPOCAMLA. The process of civil forfeiture, as expressly provided under section 92(4) of POCAMLA, is not dependent on the outcome of a criminal prosecution or investigation. It is therefore my finding and I so hold that there is no violation of the provisions of Article 50(2) (a).