Assets Recovery Agency v Gethi (Civil Appeal 40 of 2019) [2026] KECA 473 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a decision refusing to forfeit Charity Wangui Gethi's Jeep Cherokee because the Assets Recovery Agency failed to prove it was bought with stolen NYS funds.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the motor vehicle KCD 241Q Jeep Cherokee constituted proceeds of crime under section 2 of POCAMLA
- 2.Whether the motor vehicle was liable to forfeiture under sections 90 and 92 of POCAMLA
- 3.Whether the trial court erred in its evaluation of the evidence and application of the burden of proof under sections 107–109 of the Evidence Act
Key legal issues
#Whether the motor vehicle constituted proceeds of crime under section 2 of POCAMLA
It did not. The funds used to purchase the vehicle were redeemed from the respondent's Old Mutual account before the deposits alleged to emanate from the NYS scandal were made, so no nexus was established.
The definition of proceeds of crime in section 2 is deliberately broad to capture direct and indirect benefits, but the appellant still had to prove on a balance of probabilities that the specific funds used to buy the vehicle derived from crime. The temporal sequence of transactions showed the redemptions of Kshs.3 million and Kshs.14 million preceded the alleged tainted deposits of Kshs.17.6 million and Kshs.18 million. Suspicion from later questionable deposits could not substitute for proof.
Whether the motor vehicle was liable to forfeiture under sections 90 and 92 of POCAMLA
It was not, since the appellant failed to prove it was proceeds of crime; forfeiture requires demonstration on a balance of probabilities.
Forfeiture under POCAMLA is civil in nature and governed by the civil standard of proof. The applicant bears the legal burden throughout, and the respondent bears only an evidential burden at intervals to rebut. Sections 92 and 94 empower a forfeiture order only where, on a balance of probabilities, the property is shown to be proceeds of crime or used in an offence. The threshold was not met here.
Whether the trial court erred in its evaluation of the evidence and application of the burden of proof under sections 107–109 of the Evidence Act
It did not. The trial court properly applied the burden of proof and its evaluation of evidence was sound in law and fact.
Exercising its first-appeal mandate to re-evaluate the evidence, the Court agreed with the trial court's finding that the appellant bore the legal burden throughout and never established a prima facie case that would shift the evidential burden. The trial court's insistence on a demonstrable link between the impugned property and the alleged unlawful conduct was consistent with the principle that suspicion cannot substitute proof.
Legal principles established
#- Forfeiture proceedings under POCAMLA are civil in nature and the legal burden rests on the applicant throughout to prove on a balance of probabilities that the property constitutes proceeds of crime; the evidential burden may shift intermittently to the respondent only once a prima facie case is established
- Suspicion, however strong, cannot substitute for proof of the nexus between property and unlawful conduct in forfeiture proceedings
- A first appeal is by way of retrial; the first appellate court must re-evaluate, re-analyse and re-consider the evidence and draw its own conclusions, allowing for the fact that it did not see the witnesses
- In civil recovery proceedings, the applicant need not prove a specific criminal offence, but must set out the factual matters alleged to constitute the unlawful conduct by which the property was obtained
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Milimani Law Courts, Anti-Corruption and Economic Crimes Division
- Miscellaneous Civil Application No. 221 of 2016
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act over an appeal from the High Court in exercise of its forfeiture jurisdiction under sections 90 and 92 of POCAMLA
Relief refused
#Forfeiture of motor vehicle registration number KCD 241Q Jeep Cherokee and setting aside the trial court's dismissal
The appellant failed to prove on a balance of probabilities that the motor vehicle was purchased using proceeds of crime; the funds used to purchase it had been redeemed before the allegedly tainted NYS-related deposits were made
Costs
The appeal is dismissed with costs to the respondent
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.
Ultimately, the appeal lacks merit and is hereby dismissed with costs to the respondent.
The legal burden rests with the applicant throughout the proceedings. However, the evidential burden may shift intermittently to the respondent, requiring him or her to provide explanations or rebuttals once the applicant has established a prima facie case.
the temporal sequence of transactions undermined the appellant's case. The funds alleged to be proceeds of crime were not in the respondent's account at the time she redeemed the money used to purchase the motor vehicle.
a first appeal is by way of retrial and this Court, as the first appellate court, has a duty to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions
suspicion alone, however strong as in this case, could not sufice.
Issues in the judgment
#The judgment is dated and delivered on 6th March 2026, more than seven years after the trial court's judgment of 20th November 2018; the court itself acknowledges the delay but the date appears anomalous and warrants verification against the official record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Assets Recovery Agency v Gethi (Civil Appeal 40 of 2019) [2026] KECA 473 (KLR)", Case Analysis (2026). Miscellaneous Civil Appeal arising from Miscellaneous Civil Application No. 221 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/473/eng@2026-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.