https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12033

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **ANTI CORRUPTION AND ECONOMIC CRIMES DIVISION** **ACEC CIVIL SUIT NO. E051 OF 2025** **ASSETS RECOVERY AGENCY ……………..........……….. APPLICANT** **VERSUS** **MOSES NANOKA EGADWA ………........………..…… RESPONDENT** **AMENDED JUDGMENT** 1. Assets Recovery Agency, vide a motion dated **18/12/2025** brought under **sections 90** & **92** of the **Proceeds of Crime & Anti Money Laundering Act**, seeks to have certain assets owned by the respondent forfeited to the Government. 2. The said assets are: two parcels of land registered under the respondent's name, i.e. **Land Title Number Kwale/Mwabungo/S.S/224 and Land Title Number Kwale/Mwabungo/S.S/842, a green Nissan Hardbody pickup truck, registration number KAP 797G and Kshs. 3,579,616.05 held in ABSA Bank (Ukunda Branch) under account number 2052851168** in the respondent's name. 3. The motion was anchored on the grounds of the face of the application and the supporting affidavit of Isaac Nakitare. The Applicant’s case is that on 30/7/2025, the Anti-Narcotics Unit raided the Ukunda residence of an Italian national, Giulio Giarnardi, and discovered a clandestine laboratory, cannabis cultivation equipment, and 730.78 grams of cannabis. During the raid, police seized two land title deeds and a car sale agreement linked to the respondent from the house. 4. The Applicant asserts that these assets form part of a money-laundering scheme intended to disguise proceeds from illegal narcotics trafficking and therefore constitute proceeds of crime under section 82(2) of the Proceeds of Crime & Anti-Money Laundering Act. The Applicant further asserts that, when summoned by the Agency, the respondent failed to provide a satisfactory explanation for the source of his funds or for how he acquired the assets. 5. In response, the Respondent relied on a replying affidavit dated 11/3/2026. The Respondent denied ARA's claims that his assets were "proceeds of crime" or "tainted property", characterising the allegations as malicious, speculative, and lacking factual or legal basis. 6. The Respondent denied any business, personal, or illegal relationship with the Italian national, Giulio Giarnardi, stating that his only connection to Giarnardi was a lawful landlord-tenant relationship, under which he leased his property to Giarnardi under a formal tenancy agreement. He had no knowledge of, or involvement in, the alleged cultivation, processing, or trafficking of narcotics (cannabis) by the tenant within the leased premises. He explained that the land title deeds and the motor vehicle sale agreement were found in the house simply because it was his property, and that storing his personal ownership documents there was entirely legitimate. 7. The Respondent challenged ARA's assertion that he failed to explain his wealth, stating that his assets were acquired progressively over time through legitimate economic activities, including farming, business ventures, lawful employment, and savings; that the Kshs. 3,579,616.05 held in his ABSA Bank account (Ukunda Branch) comprised clean, traceable funds from his lawful businesses and was completely unrelated to any money laundering or drug trafficking; and that the green Nissan Hardbody and the two parcels of land claimed were purchased using his hard-earned legal income long before the alleged offences took place. 8. The Respondent argued that the ARA is misusing its statutory powers under POCAMLA to unjustly deprive him of his constitutionally protected right to private property, having failed to establish any nexus between his assets and the narcotics case against the Italian national. This renders the asset freeze and forfeiture demands premature, punitive, and illegal. 9. In rejoinder, the Applicant filed a supplementary affidavit, sworn by Eliaph Ngari on 27/3/2025, in which it was deposed that the Respondent's defence consists of mere denials intended to conceal crime. It was deposed that asset recovery proceedings are civil in nature and that the validity of the forfeiture order is not affected by the outcome of criminal proceedings or of an investigation with a view to instituting such proceedings. It was also deposed that, although the Respondent claims that his assets were amassed from farming and business ventures, he has failed to provide any tax compliance certificates, business registration documents, receipts, or books of account to prove the existence of a lawful trade. 10. It was further stated that the Respondent's claim that he was merely an innocent landlord to the Italian national was false, as bank statements show direct financial transactions and transfers between the Respondent and Giarnardi, thereby demonstrating that the Respondent acted as a local facilitator, conduit, and co-conspirator in the illegal cultivation and trafficking of narcotics and in subsequent money laundering. 11. The motion was disposed of by way of written submissions. The Applicant submitted that it had proved, on the balance of probabilities, that the motor vehicle, land parcels, and bank funds were proceeds and instrumentalities of crime arising from narcotics trafficking and money laundering. The burden then shifted to the Respondent to explain the lawful origin of the funds and assets, which he failed to do. 12. On his part, the respondent submitted that under POCAMLA the Applicant bears the burden of proving, on a balance of probabilities, that the assets were acquired through criminal conduct. Although civil forfeiture can proceed without a criminal conviction, the Applicant must still establish a clear nexus between the assets and unlawful activity, which it has failed to do. Consequently, seeking forfeiture before the criminal case against him is concluded is prejudicial, undermines the constitutional presumption of innocence, and further infringes his right to property and a fair trial. The Applicant has not produced documentary, forensic, or witness evidence linking the motor vehicle, land parcels, or bank funds to narcotics trafficking. The evidence relied on by the Applicant was unreliable and could not sustain its allegations. **ANALYSIS AND DETERMINATION** 1. I have considered the affidavits filed by the parties, the annexures and the law; the issues for determination are **whether the assets claimed by the applicant are proceeds of crime and, if so**, ***whether the assets are liable to forfeiture to the state and subsequent transfer to the Applicant?*** 2. **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 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.”*** 1. 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.”*** 1. 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 governing matters within the respondent's special knowledge (see sections 109 and 112 of the Evidence Act). 2. Contrary to the respondent’s assertion, the Agency need not prove the actual crime committed. It is only required to prove 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 risks losing the case. 3. 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.”.*** 1. The forfeiture claim against the respondent’s assets is based on documents seized during an Anti-Narcotics Unit raid at the Ukunda residence of Giulio Giarnardi. The raid uncovered a clandestine laboratory, cannabis cultivation equipment, and 730.78 grams of cannabis, and resulted in the seizure of two land title deeds and a car sale agreement. These documents directly link the respondent to the suit property and the suit motor vehicle. The respondent and Giulio Giarnardi were subsequently charged with various offences under the **Narcotic Drugs and Psychotropic Substances Act 2022**. Subsequent investigations by the Applicant herein led to the institution of this suit. 2. The explanation offered by the respondent was that the assets were purchased using his hard-earned legal income long before the alleged offences took place. 3. Comparing the evidence given by the applicant with that of the respondent, the record reveals that the applicant has proven their case against the respondent on a balance of probabilities, whereas nothing has been placed before this court to rebut it. 4. The respondent has not placed any business records or employment history showing earnings sufficient to acquire the suit assets. Even when considering the progressive accumulation of wealth, no evidence has been presented of any loan taken to acquire the assets herein. 5. This is a case in which, in the face of the evidence brought against the respondent, the respondent has presented no evidence to substantiate his claims of lawful acquisition of the assets. The balance of probabilities surely lies in the applicant's favour. 6. Thus, having considered all the evidence and submissions of the parties, as well as the law, this court is satisfied that the applicant has proved, on a balance of probabilities, that Land Title Number Kwale/Mwabungo/S.S/224 (0.160 hectares) and Kwale/Mwabungo/S.S/842 (0.3499 hectares); a green Nissan Hardbody pickup truck, registration number KAP 797G; and Kshs. 3,579,616.05 held in ABSA Bank (Ukunda Branch) under account number 2052851168 in the respondent's name are proceeds of crime as defined in section 2 of the POCAMLA. 7. I reiterate that a finding that the respondent's assets or property are proceeds of crime subject to section 94 of the POCAMLA is a finding within article 40(6) of the Constitution; and that such property does not enjoy property rights under article 40 of the Constitution. A forfeiture order made pursuant to that finding is also within the provisions of article 40(6) of the Constitution. Therefore, the respondent cannot claim, as he has done, infringement of property rights guaranteed under article 40 of the Constitution. 8. Accordingly, the motion dated **18/12/2025** succeeds, and this court enters judgment for the applicant against the respondent as follows: - 9. ***That*** ***Land Titles Number Kwale/Mwabungo/S.S/224 measuring 0.160 hectares and Kwale/Mwabungo/S.S/842 measuring 0.3499 hectares are proceeds of crime and are hereby forfeited to the State.*** 10. ***That the green Nissan Hardbody pickup truck, registration number KAP 797G is proceeds of crime and is hereby forfeited to the State.*** 11. ***That Kshs. 3,579,616.05 held in ABSA Bank (Ukunda Branch) under account number 2052851168 in the respondent's name is proceeds of crime and it is hereby ordered that the funds in the said account shall be transferred to the applicant.*** 12. ***That the Director General of the National Transport and Safety Authority to register the motor vehicle KAP 797 in the name of the Asset Recovery Agency*** 13. ***A vesting order is hereby issued transferring Land Titles Number Kwale/Mwabungo/S.S/224 measuring 0.160 hectares and Kwale/Mwabungo/S.S/842 measuring 0.3499 to the Applicant*** 14. ***That the Chief Registrar of Land Registry do register the vesting order in favour of the Applicant,*** 15. ***That the Respondent shall bear the costs of this originating motion.*** **It is so ordered.** **Dated, signed and delivered virtually in Nairobi, this 30th Day of June 2026.** **R.E. OUGO** **JUDGE** **In the presence of;** **Miss Amadi - For the Applicant** **Respondent – Absent** **Adan/ Minah - C/A** **22.7.2026** **Court: Judgment amended, signed and dated 22nd Day of July 2026.** **R.E.OUGO** **JUDGE** **In the presence of:** **For the Applicant** **For the Respondent** **Adan/ Minah - C/A**