Assets Recovery Agency v Birus Chambers Advocates & Solicitors Llp

5. That the respondent’s bank account was opened and operated by David Ironda Lumumba and persons associated with him, and that an analysis of the account revealed substantial infiows followed by rapid transfers, mobile money transactions, and cash withdrawals. 6. That funds amounting to Kshs. 10 million were paid into the respondent’s account and Kshs. 8 million into an account held by Qlance Intakes Ltd, allegedly for tax consultancy services rendered to Invest and Grow Sacco. However, these payments were unsupported by legitimate business activity and formed part of a fraudulent scheme. 7. That large sums were transferred between accounts linked to David Ironda Lumumba and withdrawn via numerous bankers’ cheques and cash transactions, a pattern intended to conceal the origin and ownership of the funds. 8. Investigations uncovered forged documents used to justify withdrawals, including motor vehicle sale agreements, invoices, logbooks, and documents relating to vehicles that were either not owned by the purported sellers or had no connection to the transactions. Letters from relevant parties and NTSA searches disproved the authenticity of these documents. 9. That entities linked to David Ironda Lumumba had no employees, offices, tax compliance records, or demonstrable capacity to provide the services for which they received millions of shillings, and that the CEO of Invest and Grow Sacco reportedly had limited knowledge of the respondent and indicated that due diligence may not have been conducted. 10. The applicant contends that David Ironda Lumumba, acting through Birus Chambers Advocates & Solicitors LLP and related entities, engaged in a scheme involving fraud, forgery, and money laundering, and that the Kshs. 14,679,139.65 held in the respondent’s account constitutes proceeds of crime. 11. Despite service, as evidenced by the affidavit of service sworn on 15/12/2025 by Vincent Oseko Oichoe, the respondent elected not to take part in the instant proceedings. 12. The applicant filed written submissions in support of its case, reiterating the averments made in its motion and further submitting that it had demonstrated a fraudulent scheme involving David Ironda Lumumba and entities under his control, the movement and concealment of funds through multiple accounts and forged documents, and that the Kshs. 14,679,139.65 constituted proceeds of crime. Accordingly, the Court ought to declare the funds proceeds of crime and order their forfeiture to the State through it. Analysis and Determination 14. I have considered the evidence adduced by the applicant. The only issue for determination is whether the Kshs. 14,679,139.65 (plus all accrued interest) held in I&M Bank account number 036xxxxxx50 in the Respondent's name constitutes proceeds of crime, and, if so, whether the assets are liable to forfeiture to the state and subsequent transfer to the Applicant? 15. Section 2 of the POCAMLA defines proceeds of crime as: “ proceeds of crime" means any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender, and includes, on a proportional basis, property into which any property derived or realized directly from the offence was later successively converted, transformed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9383/eng@2026-06-30 2

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or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed.” 16. In the case of Assets Recovery Agency vs Pamela Aboo: EACC Interested Party [2018] eKLR the court stated: “ 63. Forfeiture proceedings are Civil in nature and that is why the standard of proof is on a balance of probabilities. See section 92(1) of the Proceeds of Crime and Anti-Money Laundering Act.” 17. Accordingly, the burden of proof lies with the applicant to show that the respondent’s assets are proceeds of crime. However, the evidential burden will shift to the party who would fail without further evidence. This is the basis for what is commonly known as rebuttal evidence or the respondent’s explanations of the source of the funds. The burden in respect of sources of funds or property is also said to stem from a rule of evidence on matters within the respondent’s special knowledge. (See sections 109 and 112 of the Evidence Act.) 18. The Agency need not prove the actual crime committed; it is sufficient to show unlawful conduct. Once the applicant establishes, on a balance of probabilities as provided in section 92(1)(b) of POCAMLA, that the assets in question are proceeds of crime, a duty is cast on the respondent to prove that he obtained the funds lawfully. The respondent is required to give a satisfactory explanation of the source of the assets in question; failing which, he runs the risk of losing the case. This was the finding of the Supreme Court in Supreme Court Petition No. E044 of 2024 & E04 of 2024 (Consolidated), delivered on the 19th June 2026. 19. In the case of Kenya Anti-Corruption Commission v Stanley Mombo Amuti [2017] eKLR the court held: “ This is a claim for civil recovery. A claim for civil recovery can be determined on the basis of conduct in relation to property without the identification of any particular unlawful conduct. The Plaintiff herein is therefore not required to prove that the Defendant actually committed an act of corruption in order to invoke the provisions of the ACECA. In the case of Director of Assets Recovery Agency & Ors, Republic versus Green & Ors [2005] EWHC 3168, the court stated that: “In civil proceedings for recovery under Part 5 of the Act the Director need not allege the commission of any specific criminal offence but must set out the matters that are alleged to constitute the particular kind or kinds of unlawful conduct by or in return for which the property was obtained.” I opine that 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.”. 20. The forfeiture claim against the respondent was triggered by information indicating that the respondent's bank account received suspicious funds from Invest & Grow Sacco, allegedly for legal and consultancy services, but the supporting documents were found to be forged. These fears were substantiated by investigations undertaken by the applicant herein, which revealed a larger web than initially thought. 21. Despite being served with the relevant notice, the respondent offered no explanation. In the absence of any evidence to the contrary, it is my view that the applicant has proved, on a balance of probabilities, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9383/eng@2026-06-30 3

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that the Kshs. 14,679,139.65 preserved in the respondent’s account constitutes proceeds of crime as defined in section 2 of the POCAMLA. 22. Accordingly, the motion dated 26/8/2025 succeeds, and this court enters judgment for the applicant against the respondent as follows: i. That Kshs. 14,679,139.65 (plus all accrued interest) held in I&M Bank account number 036xxxxxx50 under the Respondent's name are proceeds of crime and are hereby forfeited to the State. ii. That Kshs. 14,679,139.65 (plus all accrued interest) held in I&M Bank account number 036xxxxxx50 under the Respondent's name be immediately transferred to the Criminal Asset Recovery Fund Account at KCB Bank, KICC Branch with the relevant transaction evidence filed in court within 7 days. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE 2026. R. E. OUGO JUDGE In the presence of: Mr. Kandie - For the Applicant Respondent - Absent Adan/ Minah - C/As https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9383/eng@2026-06-30 4

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