ARA AND EACC ALLOWED TO HEAD TO THE SUPREME COURT IN FIGHT WITH BUSINESSWOMAN OVER PROCEEDS OF CRIME.

Supreme Court of Kenya where Asset Recovery Agency has been allowed to challenge appellate court majority judges decision./PHOTO BY S.A.N.

BY SAM ALFAN.

The Court of Appeal has allowed Asset Recovery Agency (ARA) and the Ethics and Anti-corruption Commission (EACC) to challenge a judgement which the agencies argued would make the fight against corruption difficult, if permitted to stand.

Appellate judges Asike Makhandia, Kathurima M’Inoti and Mumbi Ngugi allowed the application by ARA and EACC to move to the Supreme Court, over a judgment in which a different bench of the court placed a higher burden of proof on the agencies on cases on unexplained wealth.

The agencies submitted that in overturning the judgment in which ARA had proved that Pamela Aboo had failed to explain the source of the 19.6 million that she had initially been ordered to forfeit it to the government, the Appellate court placed an “unrealistically high burden of proof” on the two institutions.

“We have no doubt in our minds that the issues involved in the intended appeal are not private matters relevant and important only to Pamela, ARA and EACC,” Justices Asike Makhandia, Kathurima M’Inoti and Mumbi Ngugi said.

ARA submitted that the unintended consequence of the judgment is to inhibit or cripple the country’s fight against corruption, economic crimes, organised crime and money laundering.

High Court judge Hedwig Ongundi found that Pamela’s explanation of the source of the money, namely proceeds from her transport, banana and sugarcane business as well as trading in cereals in Busia, did not add up.

The court had noted that on average the businesswoman made daily deposits of between Sh100,000 and 400,000 into her bank accounts.

Further, there were no withdraws from the said accounts, during the period ARA investigated the accounts.
Accordingly, the judge concluded that in the absence of satisfactory explanation by Pamela regarding the source of the funds, the funds were not lawfully obtained.

The agency said the source of the funds were deposits made by her husband- Alex Mukhwana Khisa- who then worked with the Kenya Revenue Authority (KRA), customs department.

Pamela successfully argued for the decision to be overturned.

ARA and EACC submitted that the Supreme Court should state the correct approach in determining the issues of onus and standard of proof in civil forfeiture arising from such cases.

In their opinion of ARA and EACC, the court erred fundamentally by holding that the agency had not discharged its burden of proof and that Pamela had explained the sources of the funds in the three bank accounts.

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