BY SAM ALFAN.

A relative of former Treasury Cabinet Minister Ukuru Yattani has suffered a blow after a judge declined to allow him access hundreds of dollars seized from him five months ago.

High Court judge Patrick Otieno dismissed the application by Ibrae Doko Yattani, for lack of merit.

The businessman, a nephew to the former CS wanted the court to lift the order freezing the 460,000 pieces of US dollars (equivalent to Sh59.4 million).

But Judge Otieno dismissed the application saying it lacked merit and the failure to meet the required threshold.

“The preserved sum in the courts assessment is a small fraction of the company’s worth incapable of crippling its operations. In any event, by the time the seizure was done, more than five months had lapsed since the tender award and the seizure cannot be singled out as the only reason for the delay to commence the works,” said judge Otieno.

The judge said to lift such an order, the court must be satisfied that there was no legal basis to maintain reasonable suspicion against the person targeted by the investigations and the source of the money.

Justice Otieno noted that the law lays the burden on Yattani to demonstrate that the preservation order ought not to have been issued by tabling material that wasn’t available when the ex-parte order was made.

“Like other ex-parte orders, a preservation order is amenable to be set aside where it is shown that the legal thresholds were never met or were just side-stepped or the court was misled in issuing the orders or that on the material availed by the applicant, the order stands to be set aside as of right, to avoid a hardship or prejudice that has been visited upon the applicant by the ex-parte order,” said the judge.

The judge said the preservation order is time-bound and in his view, the anti-graft body should be afforded the opportunity to prove its case.

“It is at this point in time not so clear to court, hence the court has not been satisfied, on a balance of probabilities, as to displace reasonable suspicion, that the foreign currency was indeed the same money withdrawn from the financial system exchanged,” added the judge.

The court takes the view that corruption is a very versatile and complex activity which calls for complex and in-depth investigation.

The judge added that it would be against public good to reduce the time allocated to the commission in the preservation order.

“In coming to this conclusion, the court has appreciated that the law grants to the applicant the right to be heard and afforded a fair hearing before the asset can be taken away. That will have to be done if the commission was to persist in the position that the money was a proceed of corrupt conduct,” said the judge.

Ibrae sought the lifting of the order stating that he was aggrieved by the freeze as he has never been asked to explain the source of the funds but the order was leaked to the press before being brought to his attention with the design to disparage him in the eyes of the family, neighbours, friends, clients and business associates.

He submitted that the preservation order was granted through misrepresentation of facts as no indication was made on the offence he allegedly committed.

Ibrae narrated how his house was raided on the 24th April 2024 pursuant to warrants of search issued on the 22 April.2024 disclosing that there were active investigations touching on embezzlement of public funds, procurement irregularities and irregular award of tenders by the County Government of Marsabit which had resulted in the loss of 1.2 billion.

The raid, he said, ended in the seizure of phones, laptops, several documents and the money for which an inventory was prepared and signed.

He added that none of the things seized was connected to the allegations against the company then added that the sun of money was withdrawn from the account operated in the name of Habib Enterprises Itd at Al Habib National Bank of Kenya Ltd on diverse dates between 6th November and 9th December 2023 and converted into USD in order to cushion him from depreciation of the Kenyan Shilling.

He added that part of the money was received from M/s Springhills Estates Ltd who had agreed to advance to the company a sum of USD 600, 000 towards the execution of the KERRA project. It is then asserted that the seized money is genuine money legitimately withdrawn from the financial system and converted into foreign currency to help execute the KERRA project.

Ibrae conceded that his company, Habib Enterprises, had a contract awarded by the Marsabit County Government for which was paid Kshs 66,338,616 and not the sum of 71,790,897 as alleged by the Commission.

“With the seizure the applicant’s fears that it is exposed to breach terms of the contract by failure to perform the KERRA contract among others and thus be exposed to litigation for such breaches. He fears suffering financial harm unless the order for discharge is made and the money ordered released,” his lawyer told the court.