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Court of AppealDismissedCivil Appeal E511 of 2025

Assets Recovery Agency v EIS Afrika Group Ltd

Court of Appeal
25 September 2026
3,400 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that suspicion alone cannot justify seizing money as crime proceeds—the Assets Recovery Agency must prove its case with solid evidence.

What this practically means

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Executive summary

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The Court of Appeal dismissed an appeal by the Assets Recovery Agency against the High Court's refusal to order civil forfeiture of USD 274,369.56 held in the respondent's I&M Bank account under sections 90 and 92 of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA). The account had received USD 350,000 from a foreign jurisdiction, which the Agency alleged were proceeds of a money-laundering scheme. The respondent, an affiliate of a Burundian construction company, explained the funds as routed procurement money for a World Bank-funded border post project, supported by tender documents, invoices and correspondence. The Court, sitting as a first appellate court, re-evaluated the evidence and affirmed the High Court's dismissal. Applying the Supreme Court's recent decision in Pamela Aboo, it held that the Agency bears the legal burden of proving, on a balance of probabilities, a nexus between the property and criminal conduct; suspicion or unusual transactions may trigger investigation but do not discharge that burden. The Court held that the in rem character of civil forfeiture does not lower the statutory standard of proof. It found the Agency's affidavit contained unsupported conclusions, that the alleged massive cash withdrawals were not borne out by the bank statements (counsel conceding the description was 'a slip of our side'), and that the cyber forensic report lacked adequate evidential foundation. The respondent's documentary explanation was specific and verifiable, and the Agency's failure to independently verify it weakened its case. The Court also declined to entertain a new objection to untranslated French documents raised for the first time on appeal, and qualified the High Court's suggestion that non-verification amounted to a failure of duty. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in finding that the appellant had not established the threshold necessary to warrant forfeiture of the funds under sections 90 and 92 of POCAMLA
  2. 2.Whether the learned Judge misdirected himself on the applicable burden and standard of proof in civil forfeiture proceedings
  3. 3.Whether the in rem nature of civil forfeiture proceedings lowers the evidential threshold applicable to the Agency
  4. 4.Whether the learned Judge improperly rejected or relied on inadmissible evidence, including the cyber forensic report
  5. 5.Whether the appellant could raise for the first time on appeal an objection to untranslated French documents

Key legal issues

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01

Burden and standard of proof in civil forfeiture under POCAMLA

Holding

The Agency bears the legal burden of proving on a balance of probabilities that the property is proceeds of crime or intended for use in an offence; mere suspicion or unusual transactions are insufficient, though the evidential burden may shift where credible evidence warranting rebuttal is adduced

Reasoning

Section 92(1) POCAMLA prescribes the balance of probabilities as the standard. Following the Supreme Court's decision in Pamela Aboo, forfeiture requires a nexus between the property and criminal conduct. The Agency's supporting affidavit contained only general conclusions unsupported by underlying evidential material, and its key allegations (massive cash withdrawals, unverifiable email) were not substantiated by the records it relied upon.

p. 3
02

Effect of the in rem character of civil forfeiture on the evidential threshold

Holding

The in rem nature of proceedings determines the subject of the proceedings but does not alter the standard of proof prescribed by section 92(1) POCAMLA

Reasoning

The appellant argued that the in rem character of civil forfeiture lowered the evidential threshold. The Court rejected this: while no criminal conviction of the owner is required, the property itself must satisfy the statutory conditions for forfeiture. The statutory objective of combating money laundering cannot dispense with proof of the statutory elements, and the State's power to deprive a person of property must remain within the framework prescribed by the Act and the Constitution.

03

Weight of the cyber forensic report and unverified email evidence

Holding

The report, attributed to an unnamed analyst and tendered through the investigator's affidavit, lacked sufficient evidential foundation and could not alone carry the weight the appellant placed on it

Reasoning

The Court declined to decide the wider question of admissibility of a public body's report, taking the narrower route: the issue was whether the report established the disputed facts. Failure to verify an email address raises questions about that communication only, not about the existence of the underlying contract or the criminal provenance of the funds.

p. 5
04

Raising a new evidential objection (untranslated French documents) for the first time on appeal

Holding

A party should not ordinarily be permitted to raise on appeal a new evidential objection requiring factual inquiry not raised before the trial court

Reasoning

The record did not show the objection was raised before the High Court; the respondent had been granted leave to respond to the further affidavit and the matter proceeded to judgment. The Court declined to entertain the objection on appeal.

p. 5
05

First appeal duty of re-evaluation of evidence

Holding

A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, making allowance for the fact it did not see or hear the witnesses

Reasoning

Citing Selle v Associated Motor Boat Co, the Court undertook its own independent re-evaluation of the record, including examining the bank statements and the affidavit evidence, before agreeing with the learned Judge's ultimate conclusion though on a narrower basis.

Legal principles established

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  • In civil forfeiture under POCAMLA the Agency bears the legal burden of proving, on a balance of probabilities, a nexus between the property and criminal conduct; the in rem nature of the proceedings does not lower the standard of proof
  • Suspicion or unusual, large or international transactions may trigger investigation but do not by themselves discharge the evidential burden for forfeiture
  • A party may not ordinarily raise on appeal a new evidential objection requiring factual inquiry that was not raised before the trial court
  • The evidential burden may shift to the person in possession of property where the Agency adduces sufficient evidence warranting a rebuttal, but the legal burden remains on the Agency

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The judgment and decree of the High Court dated 20th June 2025 are upheld
  3. 3.The respondent shall have the costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi (Anti-Corruption and Economic Crimes Division)
Suit No. E025 of 2024
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Court of Appeal's statutory appellate powers; appeal against judgment in civil forfeiture proceedings under POCAMLA

Relief refused

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Forfeiture of USD 274,369.56 held in the respondent's I&M Bank account

The Agency failed to establish on a balance of probabilities the statutory nexus between the funds and criminal conduct; suspicion alone does not discharge the legal burden

p. 6

Costs

The respondent shall have the costs of this appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The in rem nature of the proceedings determines the subject of the proceedings; it does not alter the standard of proof prescribed by section 92(1) of POCAMLA.
Standard of proof in civil forfeiture unaffected by in rem character
Suspicion may properly trigger an investigation; it does not, by itself, discharge the evidential burden necessary for forfeiture.
p. 4Suspicion insufficient to discharge evidential burden
A party should not ordinarily be permitted to raise on appeal a new evidential objection requiring factual inquiry which was not raised before the trial court and upon which that court was consequently not called upon to rule.
p. 5New evidential objections on appeal
The appeal is dismissed. The judgment and decree of the High Court dated 20th June 2025 are hereby upheld. The respondent shall have the costs of this appeal.
p. 6Final orders and disposition

Issues in the judgment

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minor

Judgment refers to the learned Judge as 'he' in early paragraphs and 'she' in paragraph 12

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, "Assets Recovery Agency v EIS Afrika Group Ltd", Case Analysis (2026). Civil Appeal E511 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1739/eng@2026-09-25

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