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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application No. Sup. E613 of 2023 (consolidated with Civil Application No. Sup. E005 of 2023)· [2024] KECA 1671 (KLR)

Ethics & Anti-corruption Commission v Pamela Aboo & 1 other

Court of Appeal
22 November 2024
2,019 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal has cleared the way for the Supreme Court to decide how courts treat unexplained wealth in civil asset forfeiture cases.

What this practically means

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Executive summary

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This Court of Appeal ruling (Asike-Makhandia, K. M'inoti and Mumbi Ngugi, JJ.A) deals with two consolidated applications, by the Ethics and Anti-Corruption Commission (Civil Application No. Sup. E613 of 2023, the running file) and the Asset Recovery Agency (Civil Application No. Sup. E005 of 2023), for a certificate that matters of general public importance arise in intended appeals to the Supreme Court under Article 163(4)(b) of the Constitution. The intended appeals challenge the Court of Appeal's majority decision of 15th December 2023 (Okwengu and Warsame, JJ.A; Mativo, JA dissenting), which allowed Pamela Aboo's appeal and reversed the High Court's forfeiture of Kshs. 19,688,152.35 found by Ong'undi, J. to be proceeds of crime. The majority held that the ARA bore the legal burden of proving a prima facie case, had not discharged it, that Pamela had adequately explained the source of the funds, and that failure to join her husband was fatal. The applicants contended the case turns the correct approach to onus and standard of proof in civil forfeiture and the treatment of 'unexplained assets' under the Proceeds of Crime and Anti-Money Laundering Act versus the Anti-Corruption and Economic Crimes Act. Applying the Supreme Court's test in Hermanus Phillipus Steyn, the Court found the issues transcend the parties, concern balancing individual rights against the fight against corruption and money laundering, and noted the Court's own divided opinion. It granted the certificate. The stay of execution prayer was abandoned on the basis of the Court's settled lack of jurisdiction, and costs were made to abide the outcome of the intended appeal in the Supreme Court.

Key legal issues

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Whether the intended appeals raise matters of general public importance

Holding

Yes. The issues concern the correct interpretation and application of statutes dealing with clandestine offences such as corruption, economic crimes and money laundering, transcend the parties, and bear significantly on the public interest; the Court also noted divided opinion within the Court of Appeal on the correct interpretation of the relevant statute.

Reasoning

The Court applied the Supreme Court's test in Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone, requiring that the issues transcend the case, involve a substantial point of law with significant bearing on public interest, and not rest on apprehended miscarriage of justice or contested facts. It found the intended appeal raises how to balance individual rights with the detection and prosecution of organised crime under relatively new legislation informed by an international convention.

p. 4

Legal principles established

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  • A certificate under Article 163(4)(b) is granted where the issues raised in the intended appeal transcend the circumstances of the particular case and have a significant bearing on the public interest; the Supreme Court was not designed to correct routine perceived errors of courts below.
  • The Court of Appeal has no jurisdiction to grant stay of execution in relation to its own decision in a certification application.

Court orders

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  1. 1.Certificate granted enabling the ARA and the EACC to appeal to the Supreme Court in terms of Article 163(4)(b) of the Constitution
  2. 2.Costs of the application to abide the outcome of the intended appeal in the Supreme Court
On appeal from
Court of Appeal
Jurisdiction invoked
Article 163(4)(b) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ethics & Anti-corruption Commission v Pamela Aboo & 1 other", Case Analysis (2024). Civil Application No. Sup. E613 of 2023 (consolidated with Civil Application No. Sup. E005 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1671/eng@2024-11-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.