BY SAM ALFAN.
A Nairobi Court has heard that there was no shred of evidence to warrant the freezing of Nairobi Governor Mike Mbuvi Sonko’s accounts, which had been flagged off over claims of money laundering.
The Governor through his lawyer Harrison Kinyanjui informed the Milimani Chief Magistrate Martha Mutuku that Asset Recovery Agency continues to freeze the Governor’s accounts including mortgage accounts despite the expiry of exparte court orders obtained by the Assets Recovery Agency last year.
The bank itself expressly requested the Court to unfreeze the mortgage accounts. Governor Sonko is still servicing the said mortgage account.
“The orders that the assets recovery agency had obtained exparte on the December 11,2019, before magistrate Electer Rianyi
had a life of 14 days only.” Said Kinyajui.
Lawyer Kinyanjui further told the court that the ex Parte Orders obtained by the Asset Recovery Agency expired on December 27 last year and they did not make any application to extend the orders as required.
“These orders were never extended after they lapsed on the December 27,2019. The Asset Recovery never made an application to renew or revive them. Consequently,the default position is that the account stand unfrozen.”Lawyer Kinyanjui told the court.
The court also heard that there was a bundle of statements of accounts numbering 500 pages and none of which bore any evidence of a transaction of a criminal nature or constituting money laundering.
The lawyer added that there was no evidence tabled by the agency investigating officer Corporal Isaac Mwaura to prove beyond reasonable doubts that the Governor’s accounts have a penny of corruptly obtained money as alleged at all.
“Even after ARA obtained the statement of accounts from all these banks it was not able to pinpoint a single shilling that has been flagged off as constituting proceeds of crime or money laundering. There was a bundle of statements of accounts numbering 500 pages. None of which bore any evidence of a transaction of a criminal nature or constituting money laundering.” Kinyanjui told the court.
He said that the court ought to have indicated in the order granting the warrants as opposed to the usual practice of granting the warrants in generalized orders that appear to give an open cheque to the police officers.
He said despite the agency not citing any bank accounts in its application dated December 10,2019, that would be the subject of such a ” freeze order” as was obtained exparte , the said CPL Isaac Nakitare in his replying affidavit dated January 7,2020 cites specific bank accounts that belong to the Governor which he accessed using the unlawful order.
” It was shocking that ARA could freeze a mortgage account operated by the Governor when there was not a shred of evidence that such a mortgage account had any suspicious or criminal transactions. The bank itself expressed the unfreezing of this account which ARA could not contest. From the forgoing it’s clear that the agency was on fishing expedition obtaining exparte orders without specifying a single account belonging to the Governor that had any such alleged suspicions.” Added lawyer Kinyanjui.
The Governor said the agency has not denied the orders they obtained last year expired on December 27. He adds that there was no orders extended in favour of the Assets Recovery Agency.
” It is not open to the agency to abuse it statutory powers and appear before the magistrate to procure ex parte orders to freeze unspecified bank accounts of the Governor and proceed with that order to the cited respondents banks and force them effectively to disclose whatever bank accounts the Governor holds.” Submitted Kinyanjui.
He added that the Governor rights of privacy was violated under Article 31 and the exparte order was effectively obtained by fraud and material nondisclosure that Asset Recovery Agency did not know any of the Governor’s bank accounts.
“The Assets Recovery Agency never lodged an application to renew or revive them. Consequently, the default position is that the accounts stand unfrozen.” Kinyanjui told the court.
Lawyer Kinyanjui further told the court that the draconian actions of the Asset Recovery Agency have not been justified in applying the principle of proportionality and the paper trial of monies held in a bank account can be obtained from the bank without having recourse to a freezing order to establish criminal transactions over the ” suspected” period and it is not the freezing of monies held in a “suspected” bank account that ought to be the focus of the agency where there is no evidence of such criminal activity.
