1.By the Petition dated November 8, 2022 which was first filed in the Constitutional Division but transferred to this Division on November 9, 2022, the Petitioner sought orders that: -
2.The petition is supported by the affidavit of the Petitioner sworn on November 8, 2022.
3.The facts constituting the case are stated to be:-
4.The Petition was opposed by the Respondent vide a replying affidavit sworn by John Wambugu, A senior Legal Officer of the Respondent. The Respondent states, inter alia: -
5.Thereafter the petition proceeded by way of written submissions.
6.In his submissions the petitioner quoted extensively from several cases then urged this court to find that the Respondent has a public duty to follow the law; that the Respondent has violated the human rights of the Kenyan public; that the Respondent’s action show complicity with their customer, an act that meets the threshold of abetting for benefits (sic) and invites the compliance of the orders sought; that the Respondent’s actions require lifting of the corporate veil and hence the Petitioner has proved his case and this court ought to grant the reliefs sought.
7.In regard to the injury caused to the public the Petitioner stated as follows:-
8.On its part, the Respondent submitted that the Petitioner had not proved his case on a balance of probabilities and the petition should therefore be dismissed with costs to the Respondent.
Analysis and Determination
9.I have carefully considered the petition the grounds thereof, the Replying affidavit and the rival submissions. In my view, the gravamen of this petition was to compel the Respondent to comply with its obligations as a reporting institution under Part IV of the Proceeds of Crime and Anti-Money Laundering Act and more specifically Section 44 which requires it to on an ongoing basis to monitor all complex, unusual, suspicious, or large transactions whether completed or not, paying special attention to unusual patterns of the transactions and to report suspicion, if any be found, to the Financial Reporting Centre. The Petitioner also alleges that the Respondent failed to verify its customer’s identity under Sections 45A hence occasioning loss of revenue to the State and prejudice to the public.
10.Section 11 of the Proceeds of Crime and Anti-Money Laundering creates an offence of failure to comply with the requirements of Section 44, 45 and 46 of the Act. The obligation to oversee compliance by reporting institutions is placed on the Financial Reporting Center and it has power to impose civil penalties for noncompliance (Section 24(b)) to take administrative action for non-compliance (Section 24c). It is for the above reason that my view is that the orders sought in this case were within the purview of the Financial Reporting Centre but not the Petitioner.
11.Indeed, Section 39(2) of the Proceeds of Crime and Anti-Money Laundering Act clothes the Financial Reporting Centre with the power to obtain orders to enforce compliance with the obligations under the Act. The Section states:-Clearly if there was any wrong doing disclosed on the part of the Respondent the Financial Reporting Centre would have been the one to approach this court. The fact that it did not implies there was no wrong doing. Moreover, a suit filed in this court against the Respondent’s client (KiwiPay) by the Assets Recovery Agency was withdrawn by the Agency for reasons that it had investigated the entity and come to the conclusion that the business it was involved in was legitimate.
12.Accordingly, I find no merit in this petition and proceed to dismiss it with costs to the Respondent.
It is so ordered.