Asset Recovery Agency v Anthony Kepha Odiero

d. That this Honourable court be pleased to issue an order that the said funds be transferred to the applicant’s deposit account for recovered criminal assets fund, dollar account number 1292xxxxxx held at Kenya Commercial Bank KICC Branch in the name of the Assets Recovery Agency. e. That this Honourable court be pleased to issue an order directing the Director General of the National Transport and Safety Authority to register each of the motor vehicles specified in order 2 above in the name of the applicant, Assets Recovery Agency. f. That the Honourable court do make any other ancillary orders it deems fit and just for the proper execution of its orders. g. That costs be in the cause. 2. The application is premised on the grounds that in execution of its mandate under section 53 of POCAMLA, that is; identifying, tracing, freezing and recovering proceeds of crime. Upon receiving information on June 12, 2023 of a suspected case of money laundering by the respondent, the agency opened an inquiry file No. 60 of 2023 to investigate and subsequently applied for and was issued with warrants to investigate the respondent’s bank account vide Misc. Criminal Application No. E092 of 2023. 3. It is stated that the investigations revealed that the respondent holds a National Bank USD Account Number 02006xxxxxxxxx where he transacted a sum of USD 1,138,729.54 from unknown sources. He stated that between 2020 and 2023, the respondent received suspicious funds totaling to USD 596,500.00 which funds were used to acquire motor vehicles registration no.s KDE 369G and KCN 880Q. It is further stated that there is reasonable grounds to believe that the sum of USD 368,185.77 held in the respondent’s National Bank of Kenya accounts are proceeds of money laundering. 4. The application is supported by the affidavit of Mr. Frederick Musyoki, an investigator with the agency, sworn on November 17, 2023 in which he reiterated the grounds on the face of the application and adds that following the investigation of the respondent’s bank account number 02006xxxxxxxxx, the applicant on August 23, 2023 obtained preservation orders vide ACEC Misc. Application No. E027 of 2023 (Assets Recovery Agency v Anthony Kefa Odiero) prohibiting the respondent from dealing in any manner with the funds and motor vehicles under preservation which orders were gazetted vide Gazette Notice No. 11773 on September 1, 2023. 5. The adds that on August 9, 2023, he summoned the respondent to explain his source of funds as a right to respond. The explanation given by the respondent was that the USD account was his personal account and that he made money through association with VIPs and people in high ranking positions around the world which explanation was found unsatisfactory. The respondent indicated to him that he is a director of three companies namely; AIB Associates Limited, a consultancy company; AIB Petals Limited that trades in the export of flowers and Insurance Brokers Limited, which provides general insurance services. The bank accounts were analysed but the analysis did not disclose any money flowing from any of the three businesses into the said bank account. Instead the analysis showed that most of the transactions made into the account were cash deposits. He pointed that the while alleged business of exporting flowers was billed in USD according to the invoices provided by the respondent, no money was received from the buyers of the flowers into the account of the respondent nor did the insurance firm deposit any funds into the subject account. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17282/eng@2024-12-09 2

page 2 of 12

Response to the Application 6. The originating motion is resisted by Antony Kefa Odiero in an affidavit sworn on March 13, 2024 in which he introduces himself as a Kenyan businessman and the Director General East and Central Africa region of the TransPacific Africa Chamber of Commerce and Industry. He further stated that he is the owner of premium bank account no. 02006xxxxxxxxx held at National Bank Limited which he opened on September 15, 2020 as the sole signatory. He stated that on or about August 28, 2023, he learnt through social media that his bank account with Kshs. 53,000,000.00 in USD which had had been frozen by the court on the basis that the funds were linked to proceeds of crime. 7. He asserts that on August 8, 2023, he heeded to the applicant’s call and presented himself to the applicant’s office where he recorded a statement and explained to the officers of the respondent the nature of his business which includes the exportation of fresh cut flowers, insurance brokerage and international consultancies and that he owned several properties including an apartment and motor vehicles. He further stated that he previously resided and worked in the United Arab Emirates and had good business connections and relations with high net worth clients in the UAE. 8. He asserted that he presented the below listed documents to demonstrate the source and purpose of the funds deposited in his frozen bank account; a. Certificate of incorporation for all his companies; b. Copy of his IRA certificates of registration as an insurance broker for the year 2023 and 2024 respectively and a list of registered insurance brokers in Kenya; c. Profiles of his companies and their respective websites; d. Tax Compliance Certificates; e. Certificate of account opening document in respect of the USD account issued by National Bank Limited; f. Copies of the said account bank statement; g. Copies of various business licenses and permits issued by the Nairobi County; h. License issued by Agriculture and Foods Authority (AFA) for the export of fresh cut flowers; i. A copy of the list of qualified and licensed horticultural and crops exporters which includes his company AIB Petals Limited; j. Copies of some of the agreements for the sale and purchase of cut flowers by AIB Petals Limited, consultancy agreements and various invoices; k. Copy of the consultancy agreement between himself and Engineer Odongo Otieno & Partners in support of the transfer of USD 97,297.30 into his account; l. Extracts of his passport showing various visa, entry and exits to the UAE, Germany, Switzerland among others as evidence of his wide business travels across the globe; m. Newspaper extracts evidencing his wide business networks and international connections with high net worth international associates; and n. Membership to the Chamber of Commerce and Industry the director general east and central Africa region of the TransPacific Africa. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17282/eng@2024-12-09 3

page 3 of 12

9. In addition, he stated that he was given a contract to negotiate the lease of several helicopters from Kenya to be used in the 2023 Malagasy presidential elections campaign for which he was paid a down payment of USD 120,000 in cash. 10. On the acquisition of motor vehicle registration No. KCN 880Q, he stated that he acquired the same in the year 2017 and it was registered on November 22, 2017 way before the account in question was opened. 11. For motor vehicle registration No. KDE 369G, he explained that he bought the same from Yohana Automotive Ltd through a trade-in-sale agreement dated July 2, 2021 where he traded his motor vehicle registration No. KCN 707D Porsche cayenne and made a bank transfer for the balance via his Kenya shillings account. 12. He clarified that it is a common business practice in the UAE to make payments for goods and services rendered in cash and he received most payments for sale of cut flowers, brokerage fees and consultancies in both USD and Euros, part of which he deposited in the said bank account. 13. Lastly, he contends that proceedings of this nature could not be commenced in the absence of him being under investigations by the DCI for criminal activities or being prosecuted for any criminal offence. 14. When served with the replying Affidavit, the applicant filed a supplementary affidavit sworn by Mr. Mohammed Godana, an investigator with the agency, on June 24, 2024. in the Affidavit, the deponent avers that the respondent must not have been investigated, tried or convicted for any criminal offenses as a condition precedent to the applicant instituting preservation and forfeiture orders against the respondent’s property. 15. On the respondent’s assertion that he worked in the UAE and had relations with high profile clients, the deponent asserts that there is no proof of source of funds and no documentation was tendered to show that the respondent was working in the UAE during the period the funds were deposited into the bank account. 16. He adds that the invoices and sale agreements provided by the respondent are for the years 2021 and 2022 yet the funds in question hit the account in 2023 and there is no proof to show that the source of funds was for payment of invoices. He avows that there is no movement of funds in both the KES account and USD account that seems to be going or coming from the alleged businesses or settling expenditures for the same. 17. He lastly points out that from the documents provided by the respondent, there were supply of flowers to countries other that the UAE and none of the payments are seen to be credited into the accounts directly from the purchasers. 18. At the request of the respondent, the deponent of the applicants supporting Affidavit, Mr Frederick Muasya Musyoki was cross examined at length on his affidavit. 19. While the originating summons for forfeiture was pending determination, the respondent not only filed an application dated March 21, 2024, seeking the joinder of the Attorney General and the Director General of the Applicant, as 2nd Respondent and Interested party, respectively, the declaration that the appointment of the Director General was contrary to the law under the Constitution and POCAMLA thus making these proceedings illegal and nullity, but also a Notice of Intention to cross examine the deponents of the affidavits filed on behalf of the applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17282/eng@2024-12-09 4

page 4 of 12

20. When the the file was placed before the presiding judge for directions, the court granted the leave to cross examine one Deponent and directed that the the application questioning the locus standi of the applicant be heard concomitantly with the substantive Originating Summons. The application for joinder and declaration for unconstitutionality 21. Although the application sought that the Attorney General and the Director General of the Agency, by joined ex-parte, no such orders were issued by the court hence the entire application is due for determination. The implication seeks, in addition to joinder and stay of proceedings, a declaration that the appointment of the Agency Director violates articles 3,10,27,47 and 232 of the Constitution as well as section 53 and 55 of POCAMLA and is thus null and void ab initio and therefore the suit initiated though the said director General without locus standi be struck out. There are also prayers that the said Director General be ordered to refund all salaries and other benefits earned during her impugned tenure; that the office be declared vacant and the attorney General be directed by way of mandamus to initiate the process of constitution of the Asset Recovery Advisory Board and the subsequent competitive recruitment of the Director General. 22. The grounds disclosed to premise the application are that by statute, the Director General is to be appointed by the Attorney General only upon the recommendation of the Asset Recovery Advisory Board. The respondent contends that the Board has never been constituted hence there could not have been a recommendation to the Attorney General on the appointment hence the appointment was contrary to the law in both the Constitution and statute and therefore when done was done contrary to law and thus null and void. For having been improperly appointed, a suit initiated by such appointee without locus standi is null and void and ought to die a natural death. Those same reasons are amplified in the Affidavit in support sworn by the respondent applicant. 23. The application was opposed by the Agency on the strength of the replying affidavit sworn by Mohamed Godana on the June 21, 2024 in the affidavit the deponent asserts that the application is a disguised constitutional petition which fails the threshold for pleading and proving such petitions because the dictates of precise demonstration on violation and manner of violation of the Constitution had not been shown. It is also contended that there has not been demonstration that the proposed interested parties were parties with stakes in the proceedings ab initio. The Agency thus contends that for failure to precisely plead and prove the manner and nature of violation of the cited articles; the inconsistency of the cited sections of the POCAMLA with the Constitution and lack of demonstration that the interested parties had stakes in the matter from the word go, the application ought to be dismissed. Cross-Examination Of Frederick Muasya Musyoki 24. The deponent identified himself as the former head of investigation at the agency who retired on December 31, 2023 and was currently practicing as an advocate with practice number P105/17346/20. He stated that though he did not annex the order, he in fact obtained an order to investigate allegations of money laundering and drug trafficking against the respondent and his investigations revealed money laundering and acquisition of assets through proceeds of crime. He stated that he established that the respondent walked into the bank and deposited money in small bits to avoid the reporting threshold. He added that though he did not establish where the monies came, he concluded that they were proceeds of crime intended to be laundered. 25. He however, confirmed that he did not taken initiatives to verify the allegations by the respondent that; he established a fitness center called Exceed Fitness at silver springs hotel; he worked at a gym in Riara; he earned USD 100,000 from a company called North Telecoms operated in Sudan; there were https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17282/eng@2024-12-09 5

page 5 of 12

amount invoiced and the invoicing parties in relation to the business of AIB Petals International and any association with the persons/entities transferring money into the subject account; 26. He further confirmed that on September 28, 2021 there was a transfer from Otieno Odongo and partners of USD 97,297.30 and the existence of a service level agreement between the transferee and the respondent. He stated that he failed to investigate on this because he was intimated by the respondent when he wrote a complainant to the DCI. 27. For the motor vehicles, he stated that there was no evidence from the statements to show payment for the motor vehicle a sign that they were paid for in cash. 28. On reexamination he stated that though he recorded the statement for the respondent, he was not given any documents to support the allegations. 29. The matter was directed to be canvassed by way of written submissions pursuant to which directions both sides filed submissions the court has had the benefit of reading a deriving valuable assistance. The following is a summary of the respective submissions. Applicant’s Submissions 30. The applicants position is that the application for forfeiture is ripe because the preservation order was issued and gazetted and the assets stand preserved. 31. On the threshold for orders for forfeiture, it was submitted that the evidence availed established that the property was acquired through money laundering contrary to sections 3, 4 and 7 of POCAMLA and that the respondent never rebutted such evidence when given the chance. The decision in Nguku vs Republic (1985) KLR 412 and section 112 of the Evidence Act were cited for the proposition that on the duty of a litigant to avail the evidence specially in his knowledge. It was underscored that money launderers device complex and sophisticated schemes to camouflage the activities, assets derived and the benefits from such assets. 32. On the basis of such sophistication, the agency asserts that its burden in a forfeiture application is limited to it proving to the satisfaction of the court that the agency’s belief that the assets are proceeds of crime or unlawful activities is true. 33. On whether the assets should be forfeited, it is submitted while citing Respondent’s Submissions 34. The first issue the respondent identifies for determination by this court is whether the mere suspicion of money laundering by the applicant can amount to a crime of money laundering as provided for under section 3,4 and 7 of POCAMLA. To this issue, the respondent submits that the mere suspicion by the applicant is not enough to authorize or warrant the applicant to institute proceeding for forfeiture of proceeds of crime. He contends that the crime of money laundering must first be committed and evidence of it adduced before commencing proceedings for forfeiture. It is further contended that if the court were to make a finding that an asset owned by an individual who has not been charged with a criminal offence is a proceed of crime, it would amount to a criminal conviction against the owner of the asset. 35. The second issue as identified by the respondent is whether the applicant has proved or demonstrated that the respondent was guilty of the crime of money laundering to which they submit that the duty of the investigating officer is not merely to bolster up a prosecution case with such evidence as may enable the courts to record convictions but to bring out the real unvarnished truth. There is cited the https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17282/eng@2024-12-09 6

page 6 of 12

case of Judicial Review Application No. E037 of 2021 R v DCI & 2 others (2022) KEHC 43 (KLR) in that regard. 36. It is then contended that there has been adduced evidence to show that the acquisition of the motor vehicles and the funds held in his bank account are not in any way connected or related to proceeds of crime but from legitimate income. On the basis of such submissions, the respondent prays that the originating summons be dismissed with costs. Applicant’s Supplementary Submissions 37. By the supplementary submissions, the applicant responds to the respondent’s submissions and asserts that no proof has been placed before court to show any legitimate business or employment the respondent was engaged in during the period of purchase of the motor vehicles. They further submit that funds in question were credited to the USD account and not the KES one and so the argument on exchange rates does not suffice as there is no movement of funds from the KES account and USD account that may seem to be coming from the alleged business or settling expenditures of the same. Issues 38. The court has anxiously perused the originating motion and the responses thereto, the notice of motions dated March 21, 2024 and the response thereto as well as the the sets of submissions by the parties and identifies the following issues for determination; a. Whether the issues raised and canvassed in the notice of motion dated March 21, 2024 are ripe for determination within the Originating Summons? b. Whether criminal culpability is a precondition for civil recovery proceedings? c. Whether there exist reasonable grounds to believe that the USD 368,185.77 held in account number 02006xxxxxxxxx at National Bank of Kenya Limited in the name of Anthony Kepha Odiero, which the applicant seeks to be forfeited, is a proceed of crime as defined in law? d. whether motor vehicles registration numbers KDE 369G and KCN 880Q which the applicant seeks to be forfeited are proceeds of crime? e. Whether the said funds and motor vehicles are subject to forfeiture? 39. The first issue is really a preliminary issue that would go to the merits of the originating summons. The summons as crafted raises fundamental questions and ought to have been initiated in compliance with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Had that been done it could have help demonstrate whether the Attorney General and the Director of the Agency had vested stakes in the matters so pleaded. That route could have in addition availed an opportunity for the applicant as a petitioner to be more industrious in crafting the claim. Thirdly, there would have then have been undoubted obligation upon the petitioner to personally serve the Attorney General and the Director to enable them file responses if they so wished. 40. In this matter I have not been shown any evidence that the Attorney General and the Director of the Agency were in deed served with the application. That may be explained by the fact that as at the date parties filed the submissions the two had not been joined to the proceedings. Before their joinder, they surely have not attracted the obligation to file any responses to the substantive prayers against them. 41. For the said reasons, the court, while appreciating that the issues alleged, if proved to be true, raise grave matters with grave constitutional and legal implications, finds that the application is unsuitable to be heard within the originating summons but ought to be heard as a substantive constitutional petition in https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17282/eng@2024-12-09 7

page 7 of 12

accordance with the 2013 Rules. It is also premature to determine the substantive prayers when there is no proof of service and participation by the two parties sought to be joined. 42. In any event, and without prejudicing the rights of the applicant in the motion to pursue his claim more appropriately, the court finds that the said parties have and did not have any stakes in the dispute in this suit when it was commenced. In accordance with the decision Communication Commission of Kenya and 4 Others vs Royal Media Services Ltd and Others (2014)e KLR, the two parties sought to be joined are not necessary parties. For that single reason, and that might have been the reason the prayers crafted to be dealt with ex parte were never so dealt with, the court declines the prayer for joinder with the axiomatic consequence that the the other prayer cannot be delved into. The application is dismissed but the applicant retains the his liberty to pursue the matter, if so legally advised. Having failed, the costs are awarded to the respondent. 43. That determination now paves the way for the originating summons to be considered for determination bases on the issues isolated herein-above. Whether criminal culpability is a precondition for civil recovery proceedings? 44. The respondent strenuous resist the application while contending that civil recovery proceedings cannot be commenced in the absence of the respondent being under investigations by the DCI for criminal proceedings or being prosecuted for any criminal offence. 45. The instant originating summons was brought pursuant to sections 90 and 92 of POCAMLA. Section 92(4) of the Act provides that the validity of the finding of the court that a property is a proceed of crime is not affected by the outcome of criminal proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the property concerned is in some way associated. The court construes the provision to mean that civil proceeding may be commenced and concluded whether or not there be intention to prosecute. 46. That is the gist of the decision in Republic –vs- Department of Public Prosecution & others, J.R. Civil Application No.102 of 2016 where it was held thus; “ I have added the emphasis to illustrate that even the legislators appreciated instances where there may be no one to prosecute hence there may be no conviction for a predicate offence or crime. The need to prove predicate offence before laying a charge of money laundering was effectively dispensed with. The principal offender who committed the predicate offence may never be there to be prosecuted, yet access to the proceeds of crime would have been achieved.” 47. A claim under section 90 and 92 of POCAMLA is therefore a civil recovery claim which can be determined on the basis of conduct in relation to property without the identification of any particular unlawful conduct. See the case of Kenya Anti-Corruption Commission v Stanely Mombo Amuti [2017] eKLR where the court rendered itself in the following words; “ ...forfeiture is a fair remedy in this instance as it serves to take away that which was not legitimately acquired without the stigma of criminal conviction. Criminal forfeiture requires a criminal trial and conviction while civil forfeiture is employed where the subject of inquiry has not been convicted of the underlying criminal offence, whether as a result of lack of admissible evidence, or a failure to discharge the burden of proof in a criminal trial” https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17282/eng@2024-12-09 8

page 8 of 12

48. It is thus never the law that the agency must to prove the existence of criminal investigations or a conviction for a crime before commencing proceedings for forfeiture. On that finding the contention by the respondent has no merits and insufficient to deny the request for forfeiture. Whether USD 368,185.77 held in account number 02006xxxxxxxxx at National Bank of Kenya Limited in the name of Anthony Kepha Odiero and which the applicant seeks to be forfeited is a proceed of crime as defined in law? 49. Section 81 of POCAMLA recognizes and identifies forfeiture proceedings to be civil in nature with section 92 further providing that the standard of proof is on a balance of probabilities. A wholesome reading of part VIII of the POCAMLA is that in order to discharge its burden of proof under section 107 of the Evidence Act, what is required of an applicant is to demonstrate that there are reasonable grounds to believe that funds, asset or property held by a respondent has been used or intended for the use in commission of a criminal offence or is a proceeds of crime. 50. To discharge this burden, the applicant asserts that it received information on June 12, 2023 on a suspected case of money laundering by the respondent. The agency then opened an inquiry file No. 60 of 2023 to investigate and subsequently applied for and was issued with warrants to investigate the respondent’s bank account vide Misc. Criminal Application No. E092 of 2023. 51. The agency asserted that their investigations revealed that the respondent held a National Bank USD Account Number 02006xxxxxxxxx where he had transacted a sum of USD 1,138,729.54 from unknown sources. It is further asserted that between 2020 and 2023, the respondent received suspicious funds totaling to USD 596,500.00 which money was used to purchase the two motor vehicles the subject of this case. 52. In addition, the agency state that on August 9, 2023 they summoned the respondent to explain his source of funds and he explained that the USD account was his personal account in which he deposited money made through association with VIPs and people in high ranking positions around the world. The Agency found that explanation unsatisfactory. 53. The respondent added that he was a director of three companies namely; AIB Associates Limited, a consultancy company; AIB Petals Limited that trades in the export of flowers and Ensign Insurance Brokers Limited, which provides general insurance services. 54. The agency then analyzed the bank account of the respondent but did not see any money flowing from any of the three businesses into the respondent’s USD bank account but observed that most of the transactions made into the account were cash deposits. 55. There was a further observation that the alleged business of exporting flowers was billed in USD, according to the invoices provided by the respondent, but there was however no evidence that the buyers of the flowers ever sent any money into the account of the company selling the account. Equally none of the three trading companies had ever deposited any money into the personal account. The agency maintained that the explanation offered by the respondent raised more suspicion on the source of funds in his USD account rather than dispelling the suspicion initially held. 56. As said before, all the applicant is obligated to establish is reasonable suspicion that the asset is a proceed of crime, whereafter, the evidentiary burden is shifted and rested upon the respondent to substantiate the sources of funds in the account and that used to purchase the suit motor vehicles. 57. Towards displacing the prima-facie case that the assets were proceeds of crime, the respondent offered explanation and maintained that the property was legitimately acquired. To support this position, the respondent produced the following documents; https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17282/eng@2024-12-09 9

page 9 of 12

a. Certificate of incorporation for Ensign Insurance Brokers Limited showing it was registered on December 6, 2021 and a license to operate as such from the Insurance Regulatory Authority. b. Certificate of Incorporation for AIB Petals Limited showing that it was registered on September 21, 2021. c. Certificate of Incorporation for AIB & Associates Limited showing that it was registered on January 28, 2021. d. An agreement for the supply of flowers between AIB Petals Limited & Ahmed Mogtubai based in Netherlands and dated June 15, 2021. e. An agreement for the supply of flowers between AIB Petals Limited & Gulf Flowers FZCO based in UAE and dated April 5, 2021. f. An agreement for the supply of flowers between AIB Petals Limited & Stin Company based in Netherlands and dated October 4, 2022. g. An agreement for the supply of flowers between AIB Petals Limited & The Flower Company UAE based in UAE and dated May 10, 2022. h. An agreement for the supply of flowers between AIB Petals Limited & Firenze Flora LLC based in UAE and dated November 9, 2021. i. Consultancy Agreement For Investment in Nairobi, Kenya dated June 9, 2020 between the respondent and Mr. Luis Felipe Suarez Olea Del Arco for a consideration of 50,000USD. j. Consultancy Agreement For Investment in Nairobi, Kenya dated November 4, 2020 between the respondent and Mr. De Oliveira Ferreira De Aruajo for a consideration of 80,000USD. k. Service Level Agreement between Otieno Odongo & Partners Consulting Engineers and the respondent dated January 19, 2021 for a consideration of 10,000,000KES. l. Helicopter Brokerage Agreement Between the respondent and Siteny Thierry Randrianasoloniaiko where the respondent was to earn a brokerage commission of USD 221,250. m. Logbook for motor vehicle registration no. KDE 369G which shows its date of registration as October 1, 2021. 58. It is only the respondent who is in a position to explain the source of his wealth. In seeking to do so, the respondent’s case is that he operates the several businesses and that he has over the years secured contracts associated with his businesses and his expertise. What the respondent is therefore required to do is to establish a relationship between the consideration in the contracts he asserts to have attracted and contracted for and monies received and/or deposited in his USD account. It is only reasonable that the respondent demonstrates that from the listed contract consideration flew in his favour and into the account so as to pass as a satisfactory explanation on the sources of such money or property. 59. In this matter the court has had the benefit of analyzing, in detail, the respondent’s account statement from National Bank of Kenya Limited which has been produced and relied on by both parties. From that analysis it is established that most of the deposits were in cash. There was no remittance into the account, save for that from Otieno Odongo and Partners, identified to have come from any of the entities the respondent has demonstrated business connection with. There was however a transfers from Straight Business Agency for which the respondent never explained what undertaking he had https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17282/eng@2024-12-09 10

page 10 of 12

with that entity. The respondent has not explained his relationship with the said Straight Business Agency. Furthermore, and more importantly,the respondent has not explained the source of the cash deposits. Most of his business partners and transactions which the respondent alleges to have been paid in cash are not located in Kenya. It has thus intrigued the court if the respondent travelled to European and Asian countries to collect the payments in cash and then travelled back to Kenya just to make the cash deposits!? if that was the case, did he make any declarations for the huge amounts of money in accordance with Section 12 and Second Schedule, Conveyance Of Money Instruments To Or From Kenya!? In the opinion of the court, even if that was the case, it would still be a suspect transaction designed to defeat the reporting requirements and thus a suspicious conduct. 60. The court is satisfied that the applicant did establish, on prima-facie basis and on a balance of probabilities, that the cash deposits into the account, in sums just falling below the reporting thresholds and others fairly large without sufficient narrations, raised reasonable suspicion that the same was illegitimate. 61. With that burden upon the applicant discharged, the law shifted the evidentiary burden upon the respondent to explain to the satisfaction of the court the sources of the money. Having alleged that the money was from undertakings entered into in writing, it was his duty to show that having entered into such agreement , he received payment from such contracts. As said before, there was the basic need to relate the deposits and the contracts but the respondent failed to discharge the burden. 62. The only transaction the court finds satisfactorily explained was for the Service Level Agreement between Otieno Odongo & Partners Consulting Engineers and the respondent dated January 19, 2021 for a consideration of 10,000,000KES. The statement shows receipt of USD 97,297.30 on September 28, 2021. While the court observes that the contract was valued and reasonably expected to be paid in Kenya shillings, and while it is curious that the payment was in USD, the court court determines the payment to have related to the consultancy contract. The source of that sum is well explained and shall be excluded from the unexplained money for the reasonable belief by the applicant has been displaced. 63. For the two motor vehicles, the only evidence tendered by the respondent was the logbook for KDE 369G which shows that it was registered on October 1, 2021. The seller and the consideration for the motor vehicle was not proved by the respondent. The court finds that no satisfactory explanation has been offered with regard to the motor vehicles with the consequence that the prima-facie case proved by the applicant on a balance of preponderance has not been controverted. 64. For the sum of USD 368,185.77 held in account number 02006xxxxxxxxx at National Bank of Kenya Limited in the name of the respondent, the court finds that the respondent has failed to explain the sum of USD 270,888.47 and is therefore adjudged to be a proceed of crime. 65. With the respondent having failed to explain the source of funds used to purchase motor vehicle registration no.s KDE 369G and KCN 880Q, this court finds that the motor vehicles are also proceeds of crime. 66. The end result is that the application dated November 17, 2023 is allowed and the following terms for which orders are orders are made as follows; a. A declaration that the sum of USD 270,888.47, out of the sums held in account number 02006xxxxxxxxx, at National Bank of Kenya Limited, in the name of Anthony Kepha Odiero is a proceed of crime and the funds are hereby forfeited to the Government of the Republic of Kenya. b. That the National Bank of Kenya Limited is hereby directed to transfer the said sum of USD 270,888.47, held in account number 02006xxxxxxxxx in the name of Anthony Kepha Odiero https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17282/eng@2024-12-09 11

page 11 of 12

to the dollar account number 1292xxxxxx held at Kenya Commercial Bank KICC Branch in the name of the Assets Recovery Agency. c. A declaration is hereby made that Motor Vehicles Registration Numbers KDE 369G and KCN 880Q are a proceed of crime and are hereby forfeited to Government of the Republic of Kenya. d. The Director General, National Transport and Safety Authority is hereby directed to effect the transfer to the Asset Recovery Agency and register the proprietary interest in respect of Motor Vehicle Registration Numbers KDE 369G and KCN 880Q and issue registration certificates thereto. e. Costs of the suit are awarded to the applicant. DATED, SIGNED AND DELIVERED, VIRTUALLY, THIS 9TH DAY OF DECEMBER, 2024 PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17282/eng@2024-12-09 12

page 12 of 12