Issues for determination:
11.The parties framed the following issues:a.Whether Kshs. 10,004,905 in account number 1284364968 at Kenya Commercial Bank Limited in the name of the Respondent are proceeds of crime and if so, whether they should be forfeited to the Stateb.Whether the civil forfeiture proceedings are in violation of the Respondent’s right to propertyAnalysis and determination
12.The Applicant invokes this court’s jurisdiction under Section 90(1) and 92 of the Proceeds of Crime and Anti-Money Laundering Act which state: -(a)has been used or is intended for use in the commission of an offence; or(b)is proceeds of crime”........92.Making of forfeiture order(1)The High Court shall, subject to section 94, make an order applied for under section 90(1) if it finds on a balance of probabilities that the property concerned—(a)has been used or is intended for use in the commission of an offence; or(b)is proceeds of crime.(2)The Court may, when it makes a forfeiture order or at any time thereafter, make any ancillary orders that it considers appropriate, including orders for and with respect to facilitating the transfer to the Government of property forfeited to it under such an order.(3)The absence of a person whose interest in property may be affected by a forfeiture order does not prevent the Court from making the order.(4)The validity of an order under subsection (1) 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”.
14.It is trite that in civil forfeiture proceedings, it is immaterial that the suspect has been charged, tried, or convicted of a criminal offence. (See Section 92 (4) of the POCAMLA). Provided that the Applicant proves on a balance of probabilities that the funds are proceeds of crime then a forfeiture order shall issue. Money laundering is a predicate offence and likewise the Applicant need not prove a conviction or the pendency of a charge of money laundering in order to succeed. In this respect, this court agrees with and reiterates the holding by Onguto J. in the case of Republic -Vs- Director of Public Prosecution & Others J.R Civil App' No 102 of 2016 that: -150.It would appear to me therefore, and I so hold, that the prosecution need not prove, prior to any charges of money laundering, that there has existed a conviction or an affirmation of a predicate offence. The prosecution need not consequently show a determination by a court of law that there was theft or forgery or fraud that led to the acquisition of the proceeds or property the subject of the money laundering proceedings.151.The criminal origins of the proceeds may be proved in the same way as any other elements of an offence can be proved. The offence of money laundering must be deemed as ‘stand alone’ offence. In proving that the proceeds or property are proceeds of crime even circumstantial evidence will be crucial. There is in my view no need to await any prior convictions of other offences before launching the prosecution of alleged money launderers. It is thus of little wonder that ‘proceeds of crime’ as defined under POCAMLA 2009 as “proceeds of crime” means any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis, property into which any property derived or realized directly from the offence was later successfully converted transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed” (emphasis)152.I have added the emphasis to illustrate that even the legislators appreciated instances when there may be no one to prosecute hence there may be no conviction for a predicate offence or crime. The need to prove a predicate offence before laying a charge of money laundering was effectively dispensed with.”
15.Annexed to the Originating Motion is a bank statement of the impugned account. The same shows various Mpesa deposits of Kshs.10,000,000/= followed by cash withdrawals always of less than Kshs 1 million which would give rise to suspicion as the sources of the deposits is not indicated and the withdrawals were in variously in cash. In a statement recorded on 30th August 2022 at Kirigicha Police Post Stephen Muchoka Kimenchu, who is registered as the sole director and signatory of the Respondent’s accounts, denied opening the KCB bank account No. 1284364968 or being privy to the account. He also denied having registered the Respondent company and stated that he only came to learn about the company and the bank account when he was asked by one Maxwell Mulonzi a former classmate to add a director and a signatory to the company accounts. He stated that during the period the company is alleged to have been registered and the account opened. He was hospitalized at the Coast General Hospital with serious ailments including meningitis, TB and a stroke and that thereafter he was transferred and admitted to Muranga Level Five Hospital. He denied the signatures in the account opening forms were his and said they were forgeries. He however stated that the passport photo used to open the account was his.
16.However, in his replying affidavit sworn on 23rd May 2023, the Respondent deposes that the funds subject of forfeiture were acquired from his business of buying and selling minerals and stones; that the allegations of fraud and money laundering were false and that the court ought to set aside the preservation orders of 20th September 2022 to enable him access the funds to buy medicine.
17.It is trite that once the Applicant has discharged the legal burden of proof the Respondent bears the evidential burden to demonstrate that the property in issue was lawfully acquired. This as was held in the case of Assets Recovery Agency –vs- Fisher, Rohan and Miller, Delores, Supreme Court of Jamaica, Claim No 2007 HCV003259 where it was held:-
18.From the circumstances of this case, it is clear that Stephen Muchoki Kimenchu, the director of the Respondent did not register the company and did not open the bank account No xxxx domiciled at the KCB Bank. This he totally denied. In a statement which he himself recorded when called upon by the Applicant, he also disputed having registered the company and stated he could not have done so as he was in hospital at the time. If the alleged director of the company disputes registering the company and opening the bank account then the only logical conclusion is that the account was opened by a person who had a criminal intent. This in itself is enough for this court to make a finding that the funds in the account opened using forged documents are proceeds of crime.
19.In any event, the Respondent did not provide any documents or evidence of the existence of the business, which he alleges to have derived the monies from. One would have expected him to provide this court with documents evidencing registration of the business and also proof of the person he traded with so as to earn the sums deposited in the account. There is no proof at all of transactional records such as receipts, invoices or books of accounts annexed to his affidavit. As was observed by Mumbi Ngugi J, (as she then was) in the case of Assets Recovery Agency v Lillian Wanja Muthoni Mbogo & others-ACEC MISC. APPL No. 58 of 2018:
20.The explanation by the deponent of the replying affidavit that he was prevented from availing the documents by reason of illness is not convincing more so given the contradiction between his stamen and the replying affidavit.
21.One of the indicators of money laundering, is large deposits followed by cash withdrawals within a short span of time. In this case, the bank statement shows that the impugned funds were deposited into the account through Mpesa on 5th May 2021 and 11th May 2021 in three tranches of Kshs. 10,000,000. The funds were then withdrawn between 5th and 11th May 2021 in tranches of Kshs 990,000 and Kshs 950,000 which tranches clearly were purposed to escape the Ksh. 1 million scrutiny imposed by the law. (See Section 34 of the POCAMLA).
22.The Respondent has not explained the source of the funds and the subsequent suspicious withdrawals. It is my finding therefore, that in the absence of an explanation as to the legitimacy of the source of the funds the logical conclusion is that the sum of Kshs 10,004,905 preserved by this court is proceeds of crime liable to be forfeited to the state.
23.The second issue is whether the making of forfeiture order would amount to a violation of the Respondents’ right to property under Article 40 of the Constitution.
24.Suffice it to say that while Article 40 does protect the right to property, this right does not extend to property that has been unlawfully acquired Article 40(6) of the Constitution clearly states that:-
25.The upshot is that the Originating Motion dated 6th December 2022 succeeds and it is hereby ordered that: -a.That a declaration be and is hereby issued that the Ksh. 10,004,905 in Account No. 1284364968 domiciled in the KCB Bank, Kilindini is proceeds of crime.b.That the said sum of Ksh. 10,004,905 be and is hereby forfeited to the state.c.That the said sum of Ksh. 10,004,905 be transferred to the Applicants account.d.That the Respondent shall bear the costs of these proceedings.