Assets Recovery Agency v Elias Endale Gamada

4. It is clear to me that there are two limbs to this objection. The first limb is that the preservation order was published out of time stipulated by the law and as such it was not capable of being published and the current forfeiture application is incompetent because it was based on non-existent order. The second limb is that this matter was filed out of time and on that basis, this court lacks jurisdiction to entertain it. The preliminary objection was argued by way of written submissions. The respondent filed submissions dated May 21, 2025 while those of the applicant are dated June 11, 2025. 5. The indisputable facts are that the preservation orders were given on December 11, 2024, issued on December 16, 2024 and published in the gazette on January 10, 2025. The contention and the basis for the first limb of the preliminary objection is whether the period between 21st December 2024 and January 3, 2025 is to be taken into account while computing the time under section 83(1) of the Proceeds of Crime and Anti-Money Laundering Act (hereinafter referred to as ‘POCAMLA’). 6. The applicant has while conceding that the preservation order was published on January 10, 2025, submitted that the time between December 21, 2024 and January 13, 2025 should not be reckoned while computing the period. The respondent on the other hand submits that the timelines provided in POCAMLA are not subject to the provisions of order 50 rule 4 of the Civil Procedure Rules as the same are not court proceedings and are independent of judicial process. 7. Order 50(4) rule of the Civil Procedure Rules provides that; ‘Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act: Provided that this rule shall not apply to any application in respect of a temporary injunction.’ 8. My interpretation of the above Rule is that the same is applicable in computation of time under the Rules or any order of the court and it is clear that the same is in respect of amending, delivering or filing of any pleading or the doing of any other act. In my view that does not include timelines prescribed in other substantive statutes. The period for publication of a preservation order is given under POCAMLA which is a substantive statute. The limitations therein are akin to the timelines for filing suits given by the Limitation of Actions Act which cannot fall back to subsidiary legislation. I therefore find and hold that the provisions order 50(4) of the Civil Procedure Rules are not applicable in timelines given under section 83(1) of the POCAMLA. 9. Even if one were to say that there was a conflict between the Act and the Rules, which I do not see, the position of the law in such cases would be that POCAMLA should take precedence because it is a substantive Act of Parliament while the Rules are subsidiary legislations. An Act of Parliament should prevail where there is a conflict between it and a subsidiary legislation. In Republic v Transport Licensing Appeals Board; National Transport & Safety Authority & 14 others (Interested Parties); Uber BV (Exparte Applicant) (2025) KEHC 9417 (KLR), Honourable Justice RE Aburiri held that; ‘….it is trite that a regulation which is subsidiary legislation cannot be superior to the substantive law and neither can subsidiary legislation confer jurisdiction not provided in the enabling Act. Section 31 (b) of the Interpretation and General provisions Act, Cap 2 Laws of Kenya provides that: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19418/eng@2025-07-31 2

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31. 10. Where an Act confers power on an authority to make subsidiary legislation, the following provisions shall, unless a contrary intention appears, have effect with reference to the making of the subsidiary legislation— (a) ……. (b) no subsidiary legislation shall be inconsistent with the provisions of an Act.’ Since POCAMLA does not make provisions on how timelines therein should be computed, one has to resort to section 57 of the Interpretation and General Provisions Act Chapter 2 of the Laws of Kenya which states as follows; ‘In computing time for the purposes of a written law, unless the contrary intention appearsa. a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done; b. if the last day of the period is Sunday or a public holiday or all official nonworking days (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day; c. where an act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day; d. where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time.’ 11. Nothing in the above Section makes reference to the court’s Christmas vacation or order 50 rule 4 of the Civil Procedure Rules. The courts have no powers or business in giving meanings to a legislation that is different from what the legislature intended. The duty of the court is to interpret and apply the law and where a statute makes clear provisions without leaving any gaps or anything to speculation, the courts are bound to apply the law as it is. There are instances however, where the courts may be called upon to breath life to statutes but that is only applicable where there appears to be a lacuna or where from the context relevant statute, certain words or position is left for the court to interpret or fill but in such instances, the court should not be seen to amend or change the intention of the Parliament or initiate a conflict of law where none exists. 12. In the circumstances of this case, I see no gap, confusion, conflict or ambiguity in section 57 of the Interpretation and General Provisions Act in the context of this suit and provisions of POCAMLA. Section 83(1) of POCAMLA is clear and provides in uncertain terms that the preservation order shall be published in the gazette within twenty one days after it is made. I have no difficulties in holding that the order of this court granted on December 11, 2024 and issued on December 16, 2024 in miscellaneous civil application number E061 of 2024 was published out of time and in violation of section 83(1) of POCAMLA. 13. The question that remains on this limb is, what is the effect of failure to publish within the stipulated time? The question can be answered by examining the justification for having the timelines in the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19418/eng@2025-07-31 3

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Act. The Act is meant to deal with assets that are suspected to be proceeds of crime. The preservation orders are made on the basis of suspicion and they have effect of taking away the rights of the suspected property owners to use or enjoy the benefits of the property. Sometimes, the orders may cripple the operations or the livelihood of the holders of the assets especially where the same intermingles with otherwise legitimate property. In such circumstances, it is important to safeguard the rights of the respondents and avoid a situation where they would be held captive of the orders indefinitely. 14. In my opinion, the timelines in POCAMLA were meant to ensure that when the period dictated in the law lapses, the orders must cease to operate and that is why section 90(1) allows filing of forfeiture applications only where the preservation orders are in force. Based on this position, it is my view that once the preservation orders are not published within the time provided by the law, they cease to have any operative effect and any act done thereafter in respect to the said orders is null and void ab initio. It is therefore my finding that, as at January 10, 2025 when the orders of preservation in this court’s miscellaneous civil application number E061 of 2024 were published in the gazette, they had ceased to have any force of the law and as rightly submitted by the respondent, there was nothing capable of being gazetted. 15. The second limb of the preliminary objection is that the application for forfeiture was filed out of time as the preservation orders had lapsed. Assuming that the orders were valid when they were published in the gazette on January 10, 2025, they could only be valid for 90 days pursuant to section 84 of POCAMLA which provides that; 16. A preservation order shall expire ninety days after the date on which notice of the making of the order is published in the Gazette, unless- 17. a. there is an application for a forfeiture order pending before the court in respect of the property subject to the preservation order; b. there is an unsatisfied forfeiture order in force in relation to the property subject to the preservation order; or c. the order is rescinded before the expiry of that period. In addition to the above provision, order number 11 of the preservation orders stated clearly that; ‘The orders shall remain in force for a period of ninety (90) days after the publication.’ 18. My simple calculations shows that ninety days from January 10, 2025 lapsed on April 11, 2025. This matter should therefore have been filed on or before April 11, 2025 but it was filed on April 14, 2025. One does not need magic or expertise in mathematics to see that the forfeiture application was filed out of time. The applicant was therefore not only in breach of section 90(1) of the POCAMLA but also violated my orders dated December 11, 2024. Where a suit has been filed out of time, the court ceases to have jurisdiction over the same. Honourable Lady Justice A. Nyukuri held in Sohanlaldurgadass Rajput & another v Divisional Integrated Development Programmes Co Ltd (2021) KEELC 1427 (KLR) that; ‘A suit barred by limitation is a claim barred by law, hence by operation of law, the court cannot grant the relief sought.’ 19. Without jurisdiction, this court has no business presiding over this matter as it is trite that jurisdiction is everything. The applicant has not even made an attempt to explain why it failed to adhere to the timelines provided by the law and the court. Instead, the applicant has concentrated on arguments to fit its acts within the statutory timelines which attempts have failed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19418/eng@2025-07-31 4

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20. The applicant has submitted that the court should allow the application to go on and consider that it was filed within reasonable time and that the court should not be guided by procedural technicalities. There is no room for speculation of the timings that would justify the court to consider whether the application was filed in reasonable time. The period provided under POCAMLA is a statutory dictate and cannot be considered on basis of reasonability. Jurisdiction and statutory limitation period cannot be a procedural technicality as it goes into the root of the substance of the case. Jurisdiction is the gateway to litigation and one cannot talk of matters which should go on in the field before gaining entry through the lawful gate. Justice M.C Oundo acknowledged which I agree with, that the issue of limitation is a substantive issue when in he held in Edward Moonge Lengusuranga v James Lanaiyara & another (2019) KEHC 6758 (KLR) that; ‘I have considered the foregoing and I find that limitation being a substantive law, the provisions of section 1A and 1B of the Civil Procedure Act cannot be invoked with a view to disregard the provisions of another Act of Parliament.’ 21. The upshot of the above is that this matter was filed based on an order which was not valid and out of time which was in violation of mandatory provisions of section 90(1) of POCAMLA and it is therefore incompetent making this court lack jurisdiction over the same. The entire matter is consequently struck out with costs to the respondent. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31TH DAY OF JULY 2025. B.M. MUSYOKI JUDGE OF THE HIGH COURT. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19418/eng@2025-07-31 5

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