[2022] KEHC 15252 (KLR)
The court held that while a forfeiture order cannot take effect before the appeal is heard and determined, the law is clear that preservation and seizure orders must remain in force during the pendency of the appeal. Therefore, the court is bound by statute and cannot grant the return of the funds as sought by the...
Source-derived case information.
- Citation
- [2022] KEHC 15252 (KLR)
- Parties
- Applicant: Assets Recovery Agency; Respondent: Kimaco Connectons Limited; Respondent: Peter Kiilu Makau t/a Pescom Kenya; Applicant: Mozzartbet Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Anti-Corruption and Economic Crimes Civil Suit E004 of 2021
- Procedural Posture
- Anti Corruption and Economic Crimes Civil Suit / Ruling on Applications for Return of Funds Pending Appeal
- Outcome
- applications dismissed
- Judges
- EN Maina
- Legal Topics
- Forfeiture Orders, Preservation Orders, Appeals Process, Proceeds of Crime
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Assets Recovery Agency
Applicant
Kimaco Connectons Limited
Respondent
Peter Kiilu Makau t/a Pescom Kenya
Respondent
Mozzartbet Kenya Ltd
Applicant
Procedural Posture
Anti Corruption and Economic Crimes Civil Suit / Ruling on Applications for Return of Funds Pending Appeal
Legal Issues
- 1 Whether the court can order the return of funds subject to a forfeiture order pending the determination of an appeal.
- 2 Whether preservation and seizure orders remain in force pending appeal against a forfeiture order.
Ratio Decidendi
The court held that while a forfeiture order cannot take effect before the appeal is heard and determined, the law is clear that preservation and seizure orders must remain in force during the pendency of the appeal. Therefore, the court is bound by statute and cannot grant the return of the funds as sought by the respondents and the interested party. The funds must remain preserved until the appeal is resolved, and the court has no discretion to order otherwise under the current legal framework.
Court Disposition
applications dismissed
Orders
- The notice of motion dated 25/4/2022 is dismissed.
- The notice of motion dated 2/6/2022 is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
Assets Recovery Agency v Kimaco Connectons Limited & another; Mozzartbet Kenya Ltd (Intended Interested Party) (Anti-Corruption and Economic Crimes Civil Suit E004 of 2021) [2022] KEHC 15252 (KLR) (Anti-Corruption and Economic Crimes) (5 October 2022) (Ruling)
Neutral citation: [2022] KEHC 15252 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Anti-Corruption and Economic Crimes
Anti-Corruption and Economic Crimes Civil Suit E004 of 2021
EN Maina, J
October 5, 2022
Between
Assets Recovery Agency
Petitioner
and
Kimaco Connectons Limited
1st Respondent
Peter Kiilu Makau t/a Pescom Kenya
2nd Respondent
and
Mozzartbet Kenya Ltd
Intended Interested Party
Ruling
1. The application by the interested party dated April 25, 2022 and the application by the respondents dated June 2, 2022 both seek a return of the funds the subject of the forfeiture order granted by this court on April 1, 2022, to a certain account at Diamond Trust Bank Ltd pending hearing and determination of an appeal filed in the Court of Appeal. Parties had filed written submission on both application and I have perused the rival submissions and the cases cited therein. However, the law is explicit on what is to happen upon an appeal by a party aggrieved by a forfeiture order.
2. Firstly, section 92 (6)(b) of the Proceeds of Crime and Anti-Money Laundering Act provides that a forfeiture order shall not take effect before an appeal has been disposed of secondly section 97 of the Act provides that pending the outcome of the appeal any preservation order and any order authorizing the seizure of the property concerned shall remain in force.
3. In effect therefore whereas the forfeiture order cannot take effect before the appeal is heard and determined the preservation and seizure orders granted to the applicant in regard to the funds in issue must remain in force. For that reason and the hands of this court being tied by the law it cannot grant the orders sought by the respondents and the interested party. That is not to say however that the Assets Recovery Agency/applicant/respondent can do whatever it pleases with the funds. The same must remain preserved pending the hearing and determination of the appeal.
4. Accordingly, the notice of motion dated 25/4/2022 and the notice of motion dated June 2, 2022 are both dismissed with an order that parties shall bear their own costs.Orders accordingly.
SIGNED, DATED AND DELIVERED VIRTUALLY THIS 5TH DAY OF OCTOBER, 2022. E. N MAINAJUDGEIn the Presence of:-Mr. Lutta for the RespondentsMs Chebet for the Interested party/ApplicantMr. Githinji for ARA/RespondentPotishoi - Court Assistant.