[2017] KEHC 1044 (KLR)

[2017] KEHC 1044 (KLR)

The court held that the respondents, as applicants seeking to discharge the preservation orders, bore the burden of proving on a balance of probabilities that the funds in the subject bank accounts were not acquired as a result of corrupt conduct. The evidence presented by the respondents, including tenders and invoices, was challenged by the applicant as inconsistent and unsupported by official records, particularly in light of the Principal Secretary's letter denying any dealings with the 2nd respondent. The court found that the respondents failed to provide prima facie evidence of legitimate acquisition of the funds, and thus did not meet the statutory threshold for discharging the...

Citation
[2017] KEHC 1044 (KLR)
Parties
Applicant: Ethics & Anti-Corruption Commission; Respondent: Evanson Thuo Waweru; Respondent: Evanson Thuo Waweru t/a Era Two Thousand Enterprises; Respondent: Evanson Thuo Waweru t/a Big Sale Superstore/Big Sale Chemicals
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
19 December 2017
Case Number
Miscellaneous Application 67 of 2016
Procedural Posture
Miscellaneous Application / Ruling on Application to Discharge/vary Preservation Orders Under Section 56 of the Anti Corruption and Economic Crimes Act
Outcome
application dismissed
Judges
LA Achode
Legal Topics
Asset Freezing Orders, Burden of Proof, Anti Corruption Investigations, Constitutional Property Rights
Source Language
English
Criminal Law Civil Procedure Asset Freezing Orders Burden of Proof Anti Corruption Investigations Constitutional Property Rights

Case Brief

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Parties

Ethics & Anti-Corruption Commission

Applicant

Evanson Thuo Waweru

Respondent

Evanson Thuo Waweru t/a Era Two Thousand Enterprises

Respondent

Evanson Thuo Waweru t/a Big Sale Superstore/Big Sale Chemicals

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application to Discharge/vary Preservation Orders Under Section 56 of the Anti Corruption and Economic Crimes Act

Legal Issues

  1. 1 Whether the preservation (freezing) orders over the respondents' bank accounts should be discharged or varied under Section 56(4) of the Anti-Corruption and Economic Crimes Act.
  2. 2 Whether the respondents have proved on a balance of probabilities that the funds in the subject accounts were not acquired as a result of corrupt conduct.
  3. 3 What is the applicable threshold for granting or discharging preservation orders under Section 56 of the Anti-Corruption and Economic Crimes Act.

Ratio Decidendi

The court held that the respondents, as applicants seeking to discharge the preservation orders, bore the burden of proving on a balance of probabilities that the funds in the subject bank accounts were not acquired as a result of corrupt conduct. The evidence presented by the respondents, including tenders and invoices, was challenged by the applicant as inconsistent and unsupported by official records, particularly in light of the Principal Secretary's letter denying any dealings with the 2nd respondent. The court found that the respondents failed to provide prima facie evidence of legitimate acquisition of the funds, and thus did not meet the statutory threshold for discharging the...

Court Disposition

application dismissed

Orders

  • The application dated 5th October, 2017 to discharge or vary the preservation orders is dismissed.
  • The applicant/respondent is directed to expedite its investigations.