BY SAM ALFAN
Rigathi Gachagua now wants the court to forbid a take over of his Sh.200 million.
Mr Gachagua has challenged the decision issued by Justice Maina of the High Court Anti-Corruption Division ordering him to forfeit the funds to the state.
He petitioned the court of appeal to suspend the execution of the Judgement pending hearing and determination of his intended appeal.
“Pending the lodgement , hearing and determination of the intended appeal ,the preservation orders issued on June 25, 2020 against the funds in Gachagua’s account remain in force, pending the outcome of the pending appeal,” seeks Gachagua.
“Unless this Court intervenes urgently and issues orders soughts, he stands to suffer irreparable loss and damage as consequence of the orders of the of High Court,” says Gachagua.
He adds that he has an arguable case with probability of success and unless stay of execution is urgently granted in the Interim , the appeal will be rendered nugatory.
In his application, Gachagua says that he was aggrieved by Justice Maina decision that the funds in his accounts are proceeds of crime which should be forfeited to the state and he intends to challenge the judge findings.
High Court ruled that the money held in four accounts at Rafiki Microfinance is proceeds of corruption.
In her decision,Justice Esther Maina ruled that the MP admitted that he received the funds form government agencies but there was no evidence that he supplied any services or goods to the government.
The funds, at Rafiki Microfiinance Bank, are held in three accounts with one holding Sh165 million, a second account holds Sh35 million and the other holding Sh773,228.
All three are registered in the MP’s names. A fourth account, holding Sh1,138,142, is registered in the name of Jenne Enterprises.
Through Senior Counsel Kioko Kilukumi, e told the appellate court that his memorandum of appeal demonstrates he has an arguable appeal.
In his court documents, DP Ruto runningmate argue that the Judge erred in failing to appreciate the strict tenets of section 92 of proceeds of Crime and Anti-Money Laundering Act (“POCAMLA”) which direct that an order of forfeiture may only be made in two instances where the fund or property has been used or is intended for use in the commission of offence or is proceeds of crime and Asset Recovery Agency(ARA) failed two prove any of the two conditions.
SC Kilukumi told the court that the Judge erred in finding that ARA had discharged their legal burden with regard to forfeiture sought when the evidence submitted the Gachagua illustrated fully the source of his funds and spelt out how the money had neither been used in the commission of any offences nor was proceeds crime.
“I will suffer irreparable harm if the money in the account is surrounded to the Asset Recovery Agency and the agency may at anytime, commence the execution to appropriate the funds in their accounts and gazettement of the forfeiture order as contemplated by section 92(5) of POCAMLA,” says Gachagua.
He said ARA will suffer no prejudice whatsoever as the funds will be secured in place since the preservation orders will remain in place throughout the pendency of appeal and there is no risk of loss of funds in his accounts as the funds the subject of preservation orders issued by the High Court pursuant to section 97 of POCAMLA.
