Assets Recovery Agency v Samuel Wachenje & 7 others [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi, Anti-Corruption & Economic Crimes Division
Category
Civil
Judge(s)
Justice Mumbi Ngugi
Judgment Date
July 25, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Assets Recovery Agency v Samuel Wachenje & 7 others [2020] eKLR. Gain insights into key legal findings and implications in asset recovery law.

Case Brief: Assets Recovery Agency v Samuel Wachenje & 7 others [2020] eKLR

1. Case Information:
- Name of the Case: The Assets Recovery Agency v. Samuel Wachenje alias Sam Mwadime & Others
- Case Number: Miscellaneous Application No 13 of 2016
- Court: High Court of Kenya at Nairobi, Anti-Corruption and Economic Crimes Division
- Date Delivered: 23rd July 2020
- Category of Law: Civil
- Judge(s): Justice Mumbi Ngugi
- Country: Kenya

2. Questions Presented:
The court was tasked with resolving the following central legal issues:
1. Whether the properties subject to the forfeiture application owned directly or indirectly by the respondents are proceeds of crime.
2. If so, whether these properties should be forfeited to the state.
3. Whether the application for civil forfeiture violates the respondents’ rights to property under Article 40 of the Constitution.
4. Whether a conviction is a precondition for civil proceedings under Part VIII of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA).

3. Facts of the Case:
The applicant, the Assets Recovery Agency (ARA), filed an application seeking forfeiture of various properties allegedly acquired through proceeds of crime, specifically from funds embezzled from the National Youth Service (NYS) amounting to Kshs. 791,385,000. The respondents included Samuel Wachenje (alias Sam Mwadime), Susan Mkiwa Mndanyi, and others, who were implicated in the fraudulent activities surrounding the embezzlement. The investigation revealed that public officials and private persons colluded to siphon funds from the NYS, leading to the acquisition of properties and vehicles listed in the forfeiture application.

4. Procedural History:
The ARA filed the application on 20th April 2016, seeking orders for forfeiture of specified assets. The application was supported by affidavits detailing the fraudulent activities and the financial trail of the embezzled funds. Despite being duly served, the respondents did not file any response or participate in the proceedings. The court issued a preservation order for the assets on 31st December 2015, which was gazetted on 22nd January 2016. The case progressed with the applicant serving hearing notices to the respondents, who continued to remain unresponsive.

5. Analysis:
- Rules: The court considered sections 81, 90, 92, and 100 of POCAMLA, which govern the civil forfeiture of assets believed to be proceeds of crime. The court also referenced Article 40 of the Kenyan Constitution regarding the right to property.

- Case Law: The court cited *Kenya Anti-Corruption Commission v. Stanley Mombo Amuti* and *Director of Assets Recovery Agency & Ors, Republic v. Green & Ors* to establish that civil recovery does not require a criminal conviction and that the burden of proof shifts to the respondents once the applicant establishes a prima facie case.

- Application: The court found that the applicant had successfully demonstrated, on a balance of probabilities, that the properties were acquired using funds stolen from the NYS. The respondents failed to provide any evidence or explanation regarding the lawful acquisition of the assets, leading the court to conclude that the assets were indeed proceeds of crime.

6. Conclusion:
The court ruled in favor of the Assets Recovery Agency, ordering the forfeiture of the specified properties to the government. The decision underscored the importance of addressing corruption and the recovery of assets obtained through illegal means, reinforcing the public's interest in reclaiming stolen resources.

7. Dissent:
There were no dissenting opinions recorded in this case, as the respondents did not participate in the proceedings to present any counterarguments.

8. Summary:
The High Court of Kenya ruled in favor of the Assets Recovery Agency, ordering the forfeiture of properties acquired through embezzled funds from the National Youth Service. The ruling emphasized the civil nature of forfeiture proceedings under POCAMLA, clarifying that a conviction is not a prerequisite for such actions. This case highlights the court's commitment to combatting corruption and recovering assets for the benefit of the public.

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