[2023] KEHC 26801 (KLR)

Assets Recovery Agency v Flutterwave Payments Technology Ltd & 2 others (Civil Suit E044 of 2022) [2023] KEHC 26801 (KLR) (Anti-Corruption and Economic Crimes) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26801 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Civil Suit E044 of 2022

NW Sifuna, J

November 9, 2023

Between

Assets Recovery Agency

Applicant

and

Flutterwave Payments Technology Ltd

1st Respondent

Hupesi Solutions

2nd Respondent

Adguru Techonology Ltd

3rd Respondent

Ruling

1. This is a forfeiture suit in which Kenya’s Assets Recovery Agency (ARA) by an Originating Motion dated 17th November 2022, urged this Court to issue orders declaring monies on certain accounts of the Respondents as proceeds of crime; hence liable for forfeiture to the Kenya Government.

2. The said Motion was signed by Ms Jennifer Gitiri (Principal State Counsel) for the Agency’s Director. The grounds of the Motion as well as the Supporting Affidavit of Corporal Isaac Nakitare (sworn by him on 17th November 2022) an Investigator at the Agency, detailed how there had been extensive investigations which had revealed: (a) That the said funds were proceeds of crime, (b) That the subject Accounts (were used as conduits of money laundering, in the guise of providing merchant services. The Motion then concluded that therefore it was in the public interest that those orders be granted. Before that, the Agency had by an earlier Motion of 18th August 2022 obtained from this Court, preservation orders preserving those funds by freezing the Accounts and prohibiting the Respondents from accessing them. Those orders were granted by this Court (Nzioka, J) on 19th August 2022.

3. Interestingly, the said Supporting Affidavit that was 13 pages, with 31 paragraphs, and with annextures running into hundreds of pages, pleaded with the Court to, in the public interest, grant those orders.

4. When the suit came up in this Court for hearing on 4th May 2023, Mr Kandie Advocate holding brief for Ms Gitiri for the Agency, informed the Court that the Agency had filed a Notice of Withdrawal, withdrawing this suit. The said Notice which was dated 28th April 2023 (and filed on 3rd May 2023), and which was signed by the said Ms Gitiri the Agency’s Counsel, did not contain any reasons for the said attempted/intended withdraw.

5. Noting that this was a public interest case as stated by the Agency itself in the said Motion, and touching on economic crime and money laundering, I declined to endorse such a casual and leisurely withdrawal. I instead directed that in the public interest, the withdrawal be by an affidavit of the Agency’s Chief Executive Officer its Director; detailing therein the reasons for the decision to suddenly withdraw a suit professed by the pleader to be of public interest.

6. Following those directions/orders, the Agency has recently filed herein two affidavits for withdrawal of the suit. The first is the Affidavit of Brigadier Alice Mate its Director and Chief Executive Officer), sworn by her on 17th October 2023. It has 17 paragraphs. The second one is the affidavit of the Agency’s said Investigator Corporal Isaac Nakitare. This one is 16 paragraphs, and together with its annextures totals 377 pages. It was sworn by him on 4th October 2023.

7. In it, the Corporal has stated that after evaluating all the evidence he obtained during his investigations as well as explanations from the directors of the Respondent companies and also reading certain decided court decisions [that he extensively cited from in this Affidavit], he came to the inevitable conclusion that the frozen funds are not proceeds of crime, and the Respondents are innocent.

8. Further, that at the time the Agency filed these forfeiture proceedings, he was still continuing with the investigations and gathering more evidence. That at the time this suit was filed, investigations were incomplete and on-going. This to my mind means, the Agency filed this suit, then went back to continue with the investigations. Is it a frank disclosure that the investigations were shoddy and parody? To such investigators and prosecutors, I have in my recent decisions firmly held and still do, that commencing proceedings without having completed investigations is not only inappropriate (especially such serious proceedings), but also negligent, reckless and absurd.

9. It is high time investigative and prosecutorial agencies such as ARA, EACC (the Ethics and Anti-Corruption Commission, KRA (the Kenya Revenue Authority), and the Office of the Director of Public Prosecutions (the ODPP), disabused themselves of this reckless habit. Rather than starting with Court proceedings and thereafter go to investigate, they should first investigate, and then based on those findings, institute forfeiture proceedings. Except of course for precursory proceedings for preservation orders. Which in most cases need to be by surprise, but again not caprice!

10. Commencing substantive forfeiture proceedings before completing investigations such as alleged by the ARA in this case, is unacceptable; and in the event of such suits and cases being lost, such investigators and prosecutors should be liable for the resultant costs and compensatory damages that an aggrieved party or person that later wins the case may claim against the Government, or that public Agency. Such compensation should be paid personally from such investigator’s private funds, and not from public funds.

11. Brigadier Alice Mate has in her withdrawal Affidavit disclosed that this suit was filed on 12th November 2022, while the final Investigation Report was completed and submitted to her much later after (many months later). She has further deponed that based on the said Investigation Report and this Affidavit of Corporal Isaac Nakitare the Investigator, she is satisfied that the said Investigator has satisfactorily explained to her, the source and legitimacy of the impugned funds; and that she is therefore satisfied that these funds are not proceeds of crime as was initially suspected by the Agency.

12. Further that it is for this reason of the evidence presented to her, that the Agency has evaluated the matter and come to the frank conclusion that the said funds are not proceeds of crime, hence the decision to withdraw this suit. She has further deponed that in arriving at the decision to withdraw this matter, the Agency was guided by the law, judicial decisions and rules of natural justice. That she verily believes that there are justifiable grounds to justify the withdrawal of this forfeiture suit.

Analysis and Determination 13. After considering the affidavits of the Agency’s two officers, as well as my earlier Ruling herein on 20th July 2023 declining the Agency’s request to withdraw this suit, the withdrawal is hereby allowed and the suit is accordingly hereby marked as withdrawn with costs to the Respondents.

14. This withdrawal is however on condition that any civil or tortious liability suit(s) that may hereafter arise as a consequence of this termination of this forfeiture suit, shall not be passed to the Government of Kenya or be levied on public funds. The same shall be born solely and personally by the Agency’s Director Brigadier Alice Mate, and its Investigator the said Corporal Isaac Nakitare, jointly and severally from their own personal finances. This is because of the negligent, reckless, careless, rash and parody manner in which this case was investigated and this suit instituted and driven.

15. It was conducted in a Simon Makonde style (the sad story of the primary school reader series); where today the suit is filed, tomorrow it is alive, and the next day it has been suffocated to death by its own initiator- the Agency. To stem such surreptitious withdrawals and terminations, this country should consider mounting periodic lifestyle audits and integrity tests for its Investigators and Prosecutors. This will not only ensure integrity and accountability, but will also restore public confidence in such institutions and agencies. Given the critical and delicate nature of anti-corruption cases for instance, there should be no room for deal-cutting, blackmail, or witch-hunt. As I lift off my pen, may this suit now rest in peace.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 9TH DAY OF NOVEMBER, 2023. PROF (DR) NIXON SIFUNAJUDGE