https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8647

Assets Recovery Agency v Orwenyo & another (Anti-Corruption and Economic Crimes Civil Suit E031 of 2024) [2026] KEHC 8647 (KLR) (Anti-Corruption and Economic Crimes) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8647 (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 E031 of 2024 BM Musyoki, J June 19, 2026 Between Assets Recovery Agency Applicant and Daniel Ogaye Orwenyo 1st Respondent Ayan Automobiles Limited 2nd Respondent Judgment 1.The applicant is a statutory body established under Section 53 of Proceeds of Crime and Anti-Money Laundering Act (hereinafter referred to as ‘POCAMLA’) with mandate of identifying, tracing, freezing and recovering proceeds of crime. Pursuant to that mandate, the applicant has brought originating motion dated 27th August 2025 praying for the following orders;1.That this Honourable Court do issue orders declaring motor vehicle registration number KCT 803E, Toyota Voxy, White, In The Name Of Ayan Automobile Limited as proceeds of crime liable for forfeiture to the applicant.2.That this Honourable Court be pleased to issue orders of forfeiture of the motor vehicle in prayer 1 above to the Assets Recovery Agency on behalf of the Government.3.That this Honourable Court be pleased to issue an order directing the Director General of the National Transport and Safety Authority to register the motor vehicle specified in order 2 above in the name of the applicant, Assets Recovery Agency.4.That this Honourable Court be pleased to issue orders for disposal of the motor vehicle within 30 days of issuing the above orders.5.That the Honourable Court do make any other ancillary orders it may deem fit and necessary for the proper and effective execution of its orders. 6.That costs be provided for. 2.In support of the motion were supporting affidavit sworn by Bedford Muriuki an investigator working with the applicant on 27th August 2025 and a supplementary affidavit sworn by Benedict Kaulu also the applicant’s investigator, on 18th February 2026. 3.Bedford deponed that pursuant to information and file received from the Directorate Criminal Investigations (DCI) on 3-05-2024 in respect of a suspected case of trafficking in narcotics, the applicant embarked on investigating the suspects. He reveals that on 28th March 2024, motor vehicle registration number KCT 803E (hereinafter referred to as ‘the vehicle’) was involved in an accident along Nairobi-Nakuru highway just after Kikopey trading centre while escaping from DCI officers who were pursuing it after receiving intelligence that it was transporting illegal drugs. After the accident, the occupants of the vehicle escaped but later, the officers noticed a suspicious onlooker at the scene who started running away after they approached him. The officers pursued and arrested the suspect who turned out to be the 1st respondent who was the driver of the vehicle. 4.Upon search of the vehicle, the DCI officers recovered 9 sacks of green plant material which upon being weighed and tested was found to be 283 kilograms of cannabis with a street value of Kshs 8,490,000.00. The 1st respondent was charged before the Chief Magistrate’s court at Nakuru with the offence of trafficking in narcotic drugs vide criminal case number E815 of 2024. A search of the details of the vehicle showed that it was registered to the 2nd respondent and upon further investigations, it was discovered that the vehicle had been sold to the 1st respondent and that it had been bought using money derived from trafficking in narcotics drugs contrary to Section 4(a)(i) of the Narcotics Drugs and Psychotropic Substances Control (Amended) Act. 5.It is further deponed that the 1st respondent failed to show up after he was summoned by the applicant to explain the circumstances surrounding the vehicle and sources of funds used to purchase the same. The applicant went on to investigate the 1st respondent’s Mpesa account through warrants obtained in Milimani Chief Magistrate’s miscellaneous criminal application number E1105 of 2024 but the same did not have any transaction. The applicant obtained preservation orders in this court’s miscellaneous civil application number E019 of 2025 and gazetted them as by law required. 6.The applicant has averred that the 1st respondent has not provided information on any legitimate business he is engaged in neither has he shown legitimate source of income which enabled him to purchase the vehicle other than giving conflicting information that he worked in construction industry and was a peasant farmer in Siaya County. The 1st respondent does not hold any bank account and no transactions or funds can be trailed to him. The applicant alleges that its investigations revealed that the 1st respondent has no farming neither does he work in the construction industry. 7.In the supplementary affidavit which sought to respond to issues raised by the 1st respondent in his replying affidavit dated 21st January 2026, Benedict reiterates that the contents of Bedford’s supporting affidavit are correct and adds that the validity of the outcome of this matter should not be affected by the outcome of the criminal case and the fact that the 1st respondent was acquitted does not have a bearing on this application. 8.The 2nd respondent did not file response to the application and consequently interlocutory judgement against it was entered on 2-02-2026. In his replying affidavit, the 1st respondent has sworn that the application lacks merits, it is misconceived, incompetent, misleading and does not disclose true facts. He states that all the allegations leveled against him are strange to him save that he was charged in the criminal case. 9.The 1st respondent adds that, the criminal case was heard on merits and the trial court found him not guilty and acquitted him unconditionally on 24th April 2025. He claims that in the criminal case, the prosecution failed to link the vehicle to the charges and that the applicant has failed to bring before this court evidence to link the vehicle to proceeds of crime. He argues that this court is not an investigative agency and the applicant as the one alleging should prove which it has failed to do. 10.The applicant filed submissions dated 18th February 2026. Despite being given opportunity, the 1st respondent did not file any submissions. I have considered the submissions of the applicant and the affidavits filed by the parties together with the annexures thereto. 11.There is evidence that the motor vehicle was intercepted after an accident while conveying cannabis which is a prohibited drug. The respondent in his replying affidavit has given general statements that the allegations in the application are not true. He has not denied that the vehicle was registered to the 2nd respondent neither has he controverted the averments that he bought it from the 2nd respondent. He is seemingly evasive on the ownership. All that he has done is to distance himself from the act of ferrying the drugs in the said motor vehicle. 12.I have looked at annexures BM-3 and BM-4 of the applicant’s supporting affidavit which are, a copy of records for the vehicle and hire purchase agreement between Darson Trading Limited and the 1st respondent. The copy of records shows that the motor vehicle is registered to the 2nd respondent who has chosen to keep away from these proceedings. The hire purchase agreement shows that the 1st respondent bought the vehicle at Kshs 1,600,000.00 with a deposit of Kshs 300,000.00 and the balance being payable in 36 instalments of Kshs 36,111.00. 13.The hire purchase agreement does not mention the name of the 2nd respondent anywhere. It is strictly between the 1st respondent and a company known as Darson Trading Limited which is described as a dealer. I do not understand why the investigators in this matter did not find it prudent to take a statement or investigate Darson Trading Limited who seems to have sold the vehicle. If it did, the results of that part of investigations have not been disclosed to this court. 14.I however note that there are other documents which are part of the applicant’s annexure BM-4 which connect the 1st respondent to the vehicle. There is an undated affidavit allegedly sworn by the 1st respondent confirming that he bought the motor vehicle although it is silent from whom he did. There is also a deed of indemnity dated 11th January 2024 showing the vendor as Darson Trading but says nothing about the 2nd respondent. Lastly, there is a document titled ‘affidavit of motor vehicle sale and responsibility’ done on what seems to be the letterhead of the 2nd respondent. The last document confirms that the 1st respondent bought the vehicle from the 2nd respondent. Flowing from this, there is probability that the 1st respondent had beneficial interest in the vehicle. The 2nd respondent who is the registered owner has chosen not to lay claim on it. 15.It is deponed that the 1st respondent has no known source of income and he has not sufficiently demonstrated how he mobilised funds to purchase the vehicle. There are no funds movements or trails of the 1st respondent’s funds. It seems that he has been operating in form of cash. His allegations that he is a farmer or a construction worker are not convincing. He has not told the court how much he makes from his undertakings or how he managed to pay for the vehicle. His conduct is reminiscent of a person who seeks to hide his operations by staying away from trails of transactions which is an obvious trait of people who are known to operate unlawful businesses in webs of criminality in order to hide their operations. 16.Having said the above, even if the plaintiff were not proved as having engaged in criminal activities or the vehicle did not belong to him, the application would still succeed. Whether the 1st respondent had legitimate sources of income or not, I take the position that, pursuant to Section 92(1)(a) of POCAMLA, it would not matter whether the vehicle belonged to the 1st respondent, second respondent or Darson Trading Limited. The court would be interested in the position that the vehicle was used to commit an offence. The Section provides that, the High Court shall, subject to section 94, make an order applied for under section 90(1) if it finds on a balance of probabilities that the property concerned has been used or is intended for use in the commission of an offence. 17.As stated earlier, the 1st respondent has not in his replying affidavit dealt with the issue of his source of income. All he has done is an attempt to distance the vehicle from the offence by stating that he was acquitted. In matters of this nature, acquittal or conviction of an accused person in related criminal proceedings does not affect the validity of any order which is due or issued in a forfeiture application. Section 92(4) of POCAMLA takes care of that which is justifiable by the fact that the standards of proof on the two regimes of law are different. In forfeiture applications, the standard is on a balance of probabilities while in criminal cases it is beyond any reasonable doubt. 18.Even if we were to take the judgment in the criminal case as relevant to these proceedings, it is notable that the judgment acknowledges that the vehicle was intercepted while carrying narcotics drugs but goes on to state that the 1st respondent was arrested inside or near the vehicle. This does not exonerate the vehicle from the scene of the accident or vitiate the fact that it was used to commit an offence. These proceedings are not interested in the guilty or otherwise of the 1st respondent but the use and the source of the vehicle. I am guided by holding in Assets Recovery Agency v Timami & another [2024] KEHC 3197 (KLR) thus;‘It is now settled that civil forfeiture proceedings are not aimed at the guilt of the owner but, rather they are proceedings in rem, against the property. The law recognizes that in some instances there may not even be anyone to convict and for that reason provides that the absence of a person whose interest may be affected by a forfeiture order does not prevent the court from making the order. Even where a person is tried for an offence and is acquitted the court would still be required to inquire into the question of the source of the property should that issue be before it.’ 19.In civil forfeiture proceedings, where a prima fascie case is established, the respondent has a duty to debunk it by providing evidence of not only how the property in question was acquired but also the source of funds used to acquire it. Failure to do so will result to the property being forfeited. In Assets Recovery Agency v Ali Abdi Ibrahim [2022] KEHC 1906 (KLR), it was reiterated that;‘Once the Applicant establishes, on a balance of probabilities as provided in Section 92(1)(b) of the Proceeds of Crime and Anti-Money Laundering Act 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 that he legitimately acquired the assets in question failing which the said assets shall be declared to have been illegally acquired.’ 20.The upshot of the above is that I find that the applicant has proved its case to the required standard and I proceed to issue the following orders;1.A declaration is hereby issued that motor vehicle registration number KCT 803E, Toyota Voxy, White, registered in the name of Ayan Automobile Limited is an instrumentality of crime and liable for forfeiture to the applicant.2.An order is hereby issued forfeiting motor vehicle registration number KCT 803E, Toyota Voxy, White, registered in the name of Ayan Automobile Limited to the Assets Recovery Agency on behalf of the Government.3.The Director General of the National Transport and Safety Authority is hereby ordered to transfer and register motor vehicle number KCT 803E, Toyota Voxy, White, to the Assets Recovery Agency.4.Prayer 4 of the application is not granted as the applicant will be at liberty to deal with the motor vehicle once transferred to it in accordance with its procedures for dealing with forfeited assets.5.I will make no orders as to costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence of Miss Amadi for the applicant, Mr. Nyawiri for the 1st respondent and Miss Cherop holding brief for Mr. Osoro for the 2nd respondent