[2022] KEHC 13620 (KLR)

Asset Recovery Agency v Kuria & another; Wanjiku (Interested Party) (Anti-corruption and Economic Crimes Miscellaneous E005 of 2022) [2022] KEHC 13620 (KLR) (Anti-Corruption and Economic Crimes) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13620 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-corruption and Economic Crimes Miscellaneous E005 of 2022

EN Maina, J

October 6, 2022

Between

Asset Recovery Agency

Applicant

and

Peter Mwangi Kuria

1st Respondent

Boniface Wegesa

2nd Respondent

and

Peter Njuguna Wanjiku

Interested Party

Ruling

1. On February 17, 2022 this court issued a preservation order in regard to motor vehicle KDC 125X toyota prado. The order was made pursuant to an originating motion brought by Assets Recovery Agency/respondent under sections 81 and 82 of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA) and order 51 rule 1 of the Civil Procedure Rules. The preservation order was to last for 90 days as provided in section 84 of the Proceeds of Crime and Anti-Money Laundering Act. The grounds for the originating motion were inter alia that motor vehicle was a proceed of crime.

2. On March 14, 2022 the 1st interested party brought a notice of motion application dated March 14, 2022 which principally sought to discharge the preservation order on the ground that the motor vehicle was not a proceed of crime, that the vehicle did not belong to the respondent but to the interested party and Family Bank which financed its purchase in the year 2021 and that the motor vehicle had been merely hired to the respondents through a company known as Ace Car Rental Services and further that the interested party was not a party to the crime allegedly committed by the respondents.

3. On May 25, 2022 yet another similar application was filed by Family bank limited. The grounds for the application which was also expressed to be brought under Section 84 of the Proceeds of Crime and Anti-Money Laundering Act, were by and large the same as those of the interested parties application.

4. This court directed that both applications were to be canvassed by way of written submissions and parties only complied by filing their submissions on April 20, 2022 and July 14, 2022 respectively.

5. I have had more than sufficient opportunity to consider the two applications, the rival submissions and the law and whereas I am alive to the provisions of section 82(2)(a) of the Proceeds of Crime and Anti-Money Laundering Act I am of the view that in the circumstances of this case the present applications and indeed the originating motion which gave rise to the impugned orders are not properly before this court.

6. My finding is premised on grounds that firstly, in regard to the originating motion, the offence for which the motor vehicle is alleged to have been used is one under the Narcotic Drugs and Psychotropic Substances (Control) Act and the motor vehicle would therefore be what is described in the Act as a conveyance and hence liable to forfeiture under section 20. The relevant provision is section 20(2) of the Act which states: -“(2)Every conveyance used for the commission of any offence under this act or for carrying any machinery, equipment, implement, pipe, utensil or other article used for the commission of any offence under this act, or any narcotic drug or psychotropic substance, shall be forfeited to the government:Provided that where, on application made by the person who was the owner of the conveyance to the court in which any prosecution for any offence under this act or before which any proceedings under this act for the forfeiture and condemnation of any conveyance, not being a proceeding under part iv is pending, the court is satisfied beyond reasonable doubt that—a.the person who was the owner of the conveyance; andb.in the case of an aircraft or ship, every person who was a responsible officer thereof, when it was made use of for such conveyance, was not concerned in or privy to such use, the conveyance shall be restored to the owner by the court.”

7. It is my finding therefore that in view of the doctrine of exhaustion the application for preservation of the motor vehicle ought to have been made in the trial court which ultimately is the court seized of the case where the issue of whether the motor vehicle was in fact used in the commission of that crime, shall be determined.

8. As for the applications by the 1st interested party and the proposed 2nd interested party the proviso to section 20 empowers the trial court to make a determination such as the one they are seeking before this court and it would likewise be appropriate that the application is made before that court. To do so would afford them a second right of appeal. It would also be in the interest of the administration of justice.

9. Accordingly, the orders made by this court on February 17, 2022 are vacated. The order of this court shall however be stayed for seven (7) days to enable the director of public prosecutions to apply in the appropriate court (being the court trying the respondents). There shall be no orders for costs.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF OCTOBER, 2022. E N MAINAJUDGE