Mozzartbet Kenya Limited v Assets Recovery Agency & 2 others

The court adopted Lord Stephens' exposition of the English POCA in Aquila Advisory and held that the same principle underlies section 93 of POCAMLA. A claimant such as Mozzartbet had to establish the twin limbs: non-involvement in the offence and acquisition for sufficient consideration without knowledge or circumstances arousing reasonable suspicion that the property was tainted. On the evidence, directors and persons associated with Mozzartbet received funds from Kimaco under unexplained circumstances, defeating the claim to innocence.

The court examined the statutory definition of money laundering, which ties it to offences under sections 3, 4 and 7 of POCAMLA. Section 4 covers acquisition, use or possession of proceeds of crime. The supporting affidavit of Snr. Sgt Musyoki expressly deponed to a complex money laundering scheme. The trial judge was therefore entitled to consider and find that the monies were laundered; the appellants were not tried on an unpleaded case.

The court contrasted the criminal standard of proof beyond reasonable doubt, relevant to the DCI's decision not to prosecute, with the civil threshold of balance of probabilities under section 92. A lower threshold is justified because money laundering is a complex and covert scheme. The ARA's mandate differs from the DCI's, and appellants cannot rely on DCI clearance to resist forfeiture.

The court re-evaluated the affidavit evidence: Kimaco lacked capacity and past experience in software, its contract with Open Skies predated the Mozzartbet contract, Emmanuel Charumbira directed both Mozzartbet and Open Skies, substantial funds flowed to Sirma, Charumbira and Melentijevic without contractual justification, and Kimaco filed nil returns despite receiving over Kshs.641 million. The trial judge's findings were entitled to be upheld.