BY SAM ALFAN.
Former PS Lilian Omollo has challenged a decision by anti-corruption court allowing the state to seize her Sh32 million which a judge found to be unexplained wealth.
Justice Mumbi Ngugi found that the money, which was deposited in Omollo’s accounts, her children and her companies- Sahara Consultants, LIDI holdings limited and LIDI Estates limited were proceeds of crime.
But the former PS now wants the entire judgement quashed arguing that the court erred in law by allowing the forfeiture application without evidence and without legal soundness thereby causing a total failure of justice.
She argues that the Judge erred in law and misapplied the court’s discretion by failing to consider its own stated position that civil forfeiture applications are not meant to penalize her.
She also claims that the judge erred and applied the wrong statutory test thereby reaching the wrong decision by adopting the wrong test exclusive to the Anti-Corruption and Economic Crimes Act (ACECA) regime ‘legitimacy of source of funds”, which latter test is not prescribed anywhere in POCAMLA as consideration in a forfeiture application.
She claims the judge ignored evidence on record and deciding the matter based on extraneous, irrelevant or unproven consideration particularly by predetermining her guilt without any evidence of loss of public funds.
It is her argument Asset Recovery Agency failed to show that public funds were lost at NYS because no such proof was adduced by the agency, whether an investigative report or by other evidence.
According to her, Judge Ngugi erred in fact by funding that she allegedly tacitly conceded in submissions that funds are lost at NYS yet the submissions bear no such concession whether tacit or explicit and and the judge erred by finding the judgement on the said alleged tacit concession that could not in law form basis for any judgement as it was not unequivocal or unconditional as required by law.
She claims the judge ignored the proven fact by ignoring the fact that auditor general’s report dated April 24,2018 confirming that there were no unresolved audit matters or pending audit queries within subject state development of public service and youth for the year ended June 30, 2017 which report was not challenged by ARA
She said the judge was also wrong to conclude that her funds were deposited in trenches of between Ksh 500,000 to Ksh950,000, which contradicts the evidence on record.
“The judge erred by ignoring and failing to consider the appellant pleaded and proved economic viability and income derived from the Uyoma farm and further erred by failing to contempt from the forfeiture order the approx sum of Ksh 390,000 proven as legitimate farm income ” she added.
While forfeiting the money to the state, Justice Ngugi said, “A declaration is hereby issued that a total of USD 105,293.7 and Kshs. 22,445,487.74 million held in bank accounts in the name of Lilian Wanja Omollo Mbogo T/A sahara consultants, Lidi Holdings limited, Lidi Estates limited and her three children at Equity bank, Community bank in Nairobi and Diamond Trust Bank limited, capital centre and village market branches are proceeds of crime and therefore liable for forfeiture to the state, ” Judge Ngugi declared.
The judge also declared that USD 67,331.9 in the name of Lilian Omollo trading as Sahara consultants and USD 28,981.97 belonging to Lidi Estates limited at Equity bank are proceeds of crime.
The Anti-Corruption Judge agreed with Assets Recovery Agency that criminal conviction is not a condition that must be met before making an order for forfeiture is made. The judge found that ARA did not violate any of her rights.
“Their argument seems to be that it is only the criminal court that can determine whether or not they hold funds which are the proceeds of crime,” the Judge said.
