BY SAM ALFAN.
Asset Recovery Agency (ARA) wants the Supreme Court to overturn a judgment allowing a businesswoman to win back Sh19.6 million which she had been directed to forfeit to the state as unexplained wealth.
In the second appeal to the apex court, the state agency has faulted the court of appeal in a majority decision, handing back Pamela Aboo the money.
Justices Mohammed Warsame and Hannah Okwengu had overturned the High Court decision that found the money to be unexplained wealth.
“Supreme Court be pleased to substitute the majority decision of the Court of Appeal (Mohammed Warsame & Hannah Okwengu ) and affirm the minority decision of (John Mativo) upholding the judgment of the High Court dated 13th November 2018,” ARA hold the apex court.
The agency argues that the decision by the two judges was wrong as the court introduced and relied on an unknown principle they called causal link connection between the funds in issue and Aboo.
ARA said the court disregarded the chain of identification, tracing and acquisition of the proceeds of crime as demonstrated in accordance with the provisions of the Proceeds of Crime and Anti-Money Laundering Act, 2009.
The agency holds that in the absence of a real, genuine and logical explanation by the businesswoman on how she acquired the money, makes it suspect money as per the provisions of the Proceeds of Crime and Anti-Money Laundering Act.
ARA added that the appellate court majority judges erred by adopting interpretation of the provisions of the Proceeds of Crime and Laundering Act, 2009 and shifting evidential burden of proof unreasonably to the Agency beyond the law, thus limiting the purpose and intent of the Act and the mandate of the Agency.
The agency faulted the two appellate judges for setting unrealistically high burden of proof on the ARA, a decision which was not founded in the law and which ignores the labyrinthine and clandestine nature of corruption and economic crimes.
“The majority Judges erred in law and fact in failing to appreciate that Civil forfeiture under the Proceeds of Crime and Anti-Money Laundering Act, 2009 is an action against the proceeds of crime or assets and not the person,” ARA told the apex court.
ARA heard that the appellate judges erred in law and fact by creating concept of differential treatment of unexplained assets in civil forfeiture under the Proceeds of Crime and -10 Anti-Money Laundering Act and the Anti-Corruption and Economic Crimes Act.
“The majority went against the overwhelming evidence produced by the Agency and introduced and created inelastic principle unknown in civil forfeiture under the Proceeds of Crime and Anti-money laundering Act which they identified as causal link as a test of evidentiary burden of proof with no 10 regard to the chain- of identification, tracing and acquisition of the proceeds of crime or assets used or intended for the commission of crime beyond and contrary to the nature, import and purpose of the provisions of the Proceeds of Crime and Anti-Money Laundering Act, 2009,” ARA said in the appeal.
