Ethics and Anti-Corruption Commission & another v Aboo
The bottom line
#Supreme Court: government cannot seize assets under POCAMLA without proving a link to crime.
What this practically means
#The Supreme Court dismissed appeals by EACC and ARA, upholding the Court of Appeal. The Court ruled that under POCAMLA, the agency must prove the money is linked to a crime before forfeiting it. The agency cannot simply ask the owner to explain. The owner gave a reasonable explanation, but the agency failed to investigate. If the money came from someone else, that person must be part of the case.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether it is incumbent upon EACC or ARA to prove/establish a connection between the crime and money/property sought to be forfeited under civil forfeiture proceedings.
- 2.Whether the evidentiary burden shifts to a person in possession of property suspected to be proceeds of crime or unlawfully acquired to explain the source/origin of the property; and if so, at what point in time?
- 3.Under what circumstances is a person considered to have provided a reasonable explanation for the origin/source of his/her property?
- 4.What reliefs should issue?
Key legal issues
#Whether a link between crime and property is required under POCAMLA civil forfeiture.
A nexus between the property and a crime or its intended commission is required under Section 92(1) of POCAMLA. The agency must prove on a balance of probabilities that the property has been used or intended for use in the commission of an offence, or is proceeds of crime.
The court examined Section 2 and Section 92(1) of POCAMLA, noting that the definition of 'proceeds of crime' requires property to be derived or realized as a result of or in connection with an offence. The court distinguished POCAMLA from ACECA, holding that under POCAMLA the incidence of crime remains central, whereas under ACECA forfeiture of unexplained assets does not require proof of a specific crime. The court rejected the appellants' argument that no link is required, finding that the record disclosed no evidence linking the Kshs 19 million to any crime.
Whether and at what point the evidentiary burden shifts in POCAMLA forfeiture proceedings.
The legal burden rests on the agency to adduce credible evidence that the property is proceeds of crime. Once that initial burden is discharged, the evidentiary burden shifts to the respondent to provide a reasonable explanation. If the respondent provides a credible explanation, the burden shifts back to the agency.
The court relied on Sections 107 and 112 of the Evidence Act and the Supreme Court's decisions in Odinga v IEBC (2013) and (2017), applying the principle that the evidential burden keeps shifting depending on the effectiveness with which a party discharges it. The court found that the respondent had provided a satisfactory explanation by identifying her business associates, and the appellants failed to investigate or rebut that explanation.
Under what circumstances is a person considered to have provided a reasonable explanation for the source of property?
There is no uniform standard; it depends on the case and evidence. The guiding standard is a balance of probabilities. If the respondent provides an explanation credible enough to create doubt in the court's mind regarding the petitioner's case, the burden shifts back to the petitioner.
The court cited with approval the English Court of Appeal decision in Szepietowski and the Privy Council decision in Assets Recovery Agency (Jamaica), holding that the agency must establish clearly that the property was obtained by unlawful conduct, but need not prove a specific criminal offence. The court found that the respondent's explanation was specific and capable of proof, and the appellants failed to investigate it.
Legal principles established
#- Under POCAMLA, the agency must prove a nexus between the property and a crime or its intended commission.
- The legal burden of proof in civil forfeiture remains on the agency; the evidentiary burden shifts only after credible evidence is adduced.
- If the respondent provides a credible explanation, the burden shifts back to the agency to rebut it.
- A third party alleged to have generated the proceeds of crime must be joined to the forfeiture proceedings.
- There is no uniform standard for a reasonable explanation; it depends on the case and evidence on a balance of probabilities.
- POCAMLA forfeiture requires proof of crime, unlike ACECA which allows forfeiture of unexplained assets without proof of a specific crime.
Court orders
#- 1.The appeals dated 18th December 2024 are hereby dismissed.
- 2.The Judgment of the Court of Appeal dated 15th December 2023 is hereby upheld.
- 3.The sum of Kshs. 6,000/- deposited as security be released to the appellants.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. 452 of 2018
- Jurisdiction invoked
- Articles 163(4)(b) and 163(5) of the Constitution
- Consolidated with
- Petition No. E044 of 2024, Petition No. E046 of 2024
Relief refused
#Setting aside the Court of Appeal judgment and substituting it with an order dismissing the respondent's appeal
The Supreme Court found that the record disclosed no evidence to link the monies to the commission of a crime or that they were proceeds of crime, and therefore the forfeiture proceedings ought not to have stood.
An order for payment of the sum of Kshs. 19,688,152.35 with interest if withdrawn
The appeals were dismissed, so this consequential relief was not granted.
Costs
the costs of this and first appeals to be borne by the appellants
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is therefore a requirement that the ARA has to establish a nexus between the subject matter of forfeiture and a crime or its intended commission when seeking an order of forfeiture.
the record discloses no evidence to link the monies in question to the commission of a crime, or that they were proceeds of crime
the costs of this and first appeals to be borne by the appellants
Key timeline
#Practical implications
#Burden of proof and joinder requirements
When handling civil forfeiture under POCAMLA, ensure your client (agency) has evidence linking property to a specific crime before filing. If the property allegedly came from a third party, join that party. For respondents, provide a detailed, verifiable explanation early to shift the burden back to the agency.
Asset forfeiture risk management
Maintain clear records of all transactions and sources of funds. If faced with a forfeiture claim, provide a credible explanation with supporting documents. The agency must prove a link to crime; mere suspicion is not enough. Also, identify any third-party contributors to ensure they are part of the proceedings.
Protecting your assets from forfeiture
If the government targets your money, you have the right to demand proof that it is linked to a crime. You can explain the source with evidence. The agency cannot just ask you to prove innocence. If the money came from someone else, they should be part of the case. Keep records of all income sources.
Frequently asked questions
#What is the difference between POCAMLA and ACECA in Kenya regarding asset forfeiture?+
Under POCAMLA, the government must prove the property is linked to a crime. Under ACECA, unexplained assets can be forfeited without proving a specific crime. This case clarifies that distinction.
Can the government seize my money without proof of crime in Kenya?+
Not under POCAMLA. The Supreme Court ruled that the agency must establish a nexus between the money and a crime. If they cannot, they cannot forfeit. However, under ACECA, different rules apply.
What is the burden of proof in asset forfeiture cases in Kenya?+
The legal burden is on the agency to prove on a balance of probabilities that the property is proceeds of crime. Only after they provide credible evidence does the owner need to explain. If the owner gives a reasonable explanation, the burden shifts back.
Do I need to join a third party if my money came from them in a forfeiture case in Kenya?+
Yes, according to this Supreme Court decision. If the agency alleges the money came from a third party, that person must be joined to the proceedings to contest the allegation.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbogo t/a Sahara Consultants & 5 others v Assets Recovery Agency (Civil Appeal E221 of 2020) [2026] KECA 1534 (KLR)[2026] KECA 1534 (KLR)31 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission & another v Aboo", Case Analysis (2026). Petition E044 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/44/eng@2026-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.