Joseph Wanjohi & 3 others v Assets Recovery Agency [2020] KECA 83 (KLR)
The bottom line
#The Court of Appeal froze the forfeiture of properties declared proceeds of crime, preserving them until the owners' appeal is heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The appeal is arguable because it raises the novel question of the burden of proof in asset recovery cases, which is new jurisprudence of importance beyond the present case.
The Court applied the settled test that an arguable appeal need only raise one bona fide, non-frivolous issue. It found the question of the burden of proof in asset recovery cases to be of utmost importance and of impact on other cases, satisfying the arguability limb without needing to determine the merits.
Whether the appeal would be rendered nugatory if stay is not granted
The nugatory limb was satisfied: the respondent did not rebut the applicants' deposition of irreparable loss, and disposal of the seized properties would make restoration onerous should the appeal succeed.
The respondent filed no replying affidavit, so the applicants' uncontroverted depositions stood. The Court reasoned that if the respondent were allowed to dispose of the seized properties, it would be difficult to return them to the applicants if the appeal succeeded, rendering the appeal nugatory.
The evidentiary weight of counsel's submissions in the absence of a replying affidavit
Submissions of counsel cannot substitute for a replying affidavit; uncontroverted depositions in an applicant's affidavit remain unrebutted despite opposing submissions.
The respondent filed only brief submissions and no replying affidavit or grounds of opposition. The Court reiterated that submissions address matters of law only and cannot replace sworn evidence, so the applicants' depositions that they would suffer irreparable loss were unrebutted.
Legal principles established
#- Submissions of counsel, which address matters of law only, cannot replace a replying affidavit which is evidence tendered on oath.
- To obtain stay of execution pending appeal under Rule 5(2)(b), an applicant must satisfy both limbs: that the appeal is arguable and that it would be rendered nugatory if stay is not granted.
- An arguable appeal is one that is not frivolous but raises a bona fide issue deserving determination by a Court, and a single bona fide issue suffices.
- A duly filed notice of appeal bestows upon the Court of Appeal jurisdiction to entertain an application for stay pending appeal.
Court orders
#- 1.The application for stay of execution is allowed
- 2.The impugned judgment of 21st February 2020 is stayed
- 3.The status quo prevailing as at the time of delivery of the ruling shall be maintained
- 4.The seized properties shall be preserved pending the hearing and determination of the applicants' appeal
- On appeal from
- High Court of Kenya at Nairobi, Anti-Corruption and Economic Crimes Division
- H.C. A.C.E.C. Application No. 7 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (jurisdiction over applications for stay of execution pending appeal, founded on a duly filed Notice of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Wanjohi & 3 others v Assets Recovery Agency [2020] KECA 83 (KLR)", Case Analysis (2020). Civil Application No. 66 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/83/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.