BY SAM ALFAN.
A Nairobi Court has ordered Asset Recovery Agency to unfreeze frozen Nairobi Governor banks accounts.
Milimani Chief Magistrate Martha Mutuku dismissed ARA application saying move by the agency to continuing using an order illegal that lapsed on December 23,2019 to freeze Governor Mike Sonko bank accounts was done on bad faith by the agency.
“The application by the Governor is allowed and the agency are directed to unfreeze the respective accounts and earlier application by the asset recovery is hereby dismissed”, ruled Mutuku.
She said that some of the bank accounts does not even belong to Governor himself but to the people alleged to be associated with him and the continued freezing of the said bank accounts is prejudicial to Governor and others.
The court further said that it was great violation of Sonko’s rights by the agency for proceeding to rely on a lapsed order that has no basis in law.
The Magistrate n that the agency was granted a period of 14 days with an option to extend these orders from December 23 ,2019 pursuant to inter parties hearing but for whatever reason the agency did not seek for the orders to be extended as required by the law.
“The orders lapsed automatically by December 23,2019 and as such the agency had no legal basis to rely on the said order as they didn’t not seek further orders from the court or seek nor didn’t they seek for the said money to be preserved”, ruled Mutuku.
The court said the agency didn’t not honor the order to appear for inter parties hearing on December 23.
The accounts were frozen in late December but Sonko has challenged the orders, which also allowed the agency to look at his statements of accounts, account opening statements, cash and cheque deposit slip, withdrawals and RTGS from January 2017 to date.
The magistrate allowed ARA 14 days to investigate the accounts together with those of two other persons and companies, both of who are facing graft charges together with Sonko in the Sh 350 million garbage tender case.
Among the banks which the accounts were frozen are KCB Group, Diamond Trust Bank, DTB, I&M Bank, Sidian Bank, National Bank of Kenya, Bank of Africa, Equity Bank, Co-operative Bank and Credit Bank.
During the hearing the court 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.