[2023] KEHC 24938 (KLR)

Hassan & another v Director of Public Prosecution & 4 others (Constitutional Petition E122 of 2020) [2023] KEHC 24938 (KLR) (8 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24938 (KLR)

Republic of Kenya

In the High Court at Mombasa

Constitutional Petition E122 of 2020

EKO Ogola, J

November 8, 2023

Between

Najma Juma Hassan

1st Petitioner

Fatma Akasha

2nd Petitioner

and

The Director Of Public Prosecution

1st Respondent

Inspector General Of Police

2nd Respondent

Director Of Criminal Investigation

3rd Respondent

In-Charge Anti-Narcotic Unit

4th Respondent

Coast Region Police Commander Coast Region Regional

5th Respondent

Judgment

The Petition 1. The Petition herein dated 16th September 2020 was filed against the following Respondents:

2. The 1st Respondent is a state officer whose office is established under the Constitution and the Director of Public Prosecutions Act; the 2ndRespondent is a state officer appointed under the Constitution and the National Police Service Act and is the head of the National Police Service; the 3rd Respondent is the Director of Criminal Investigations; the 4th Respondent is the in-charge Anti-narcotics drug unit; the 5th Respondent is the Regional police Commander Coast Region, and the 6th Respondent is the Regional Criminal Investigations coast region.

The Petitioners case 3. The 1st Petitioner is married to Baktash Akasha Abdalla and the 2nd Petitioner is the mother to the said Baktash Akasha Abdalla.

4. The Petitioners aver that on the night of 9th November 2014 while they were at home on Plot No. 5075 Nyali within Mombasa County, some people who were later identified as the agents of the 2nd, 3rd, 4th, 5th and 6th Respondents unlawfully entered the premises. The said people were also accompanied by foreigners who were officers of the Drug Enforcement Agency (DEA) of the United States of America. The said people did neither introduce themselves nor did they produce any search warrants before searching the premises.

5. The Petitioners aver that during the search, every person who was present in the house including the children was forced to lie down on the cold floor beside the swimming pool in total disregard to the Muslim culture. The people searching the house bundled up the children who were in the different stages of undressing while preparing for bedtime.

6. The Petitioners depose that the unlawful search was conducted in the absence of the Petitioners. Any requests by the Petitioners to be allowed to be present while the search was being conducted were met with brutality. The Petitioners were physically manhandled and humiliated in the presence of the children and the household staff. The people searching the house seized and carried the following items:1. Tell Black IT 2020 IMEI 86030016886003 with Airtel sim card S/N89254031121021288982. Samsung SGH-1317 IMEI 3538000506831493. Samsung GT-NT 100 IMEI 353771/05/616353/7 with Safcom Microsim and 2 GB SD Card4. Samsung GT-19300 IMEI 353818/05/018768/9 with Safcom Microsim and 2 GB SD Card5. 1 phone white in colour6. 1 phone grey-white in colour7. 1 phone broke8. Samsung GT-19505 S/No.358904/05/602589/4 with airtel microsim Card9. Blackberry Z10 Black Model RFG81UW S/No. 357033057960044 with Airtel Microsim Card. Samsung G355H105 IMEI 352554/06/153662/9 IMEI 35255/06/153662/0610. TECHNO T. 340 IMEI 352528060491283 with 3 sim cards Airtel S/No 8925403112103796488, Airtel Sim cards No. 89254011. Blackberry black IMEI 353486048270742 with Safcom Simcard S/No 8925402728100126165212. Nokia 105 IMEI 355202/05/721146/1 with Safcom Simcard S/No.89254031121027306913. Nokia 1280 IMEI 355926/05/721146/1 with Safcom Simcard S/No. 89254031121027237706914. Nokia 1280 IMEI 355926/04/698068/3 with Safcom Simcard S/No. 892540311210237706915. Nokia GT-E1205T IMEI 359485/05231876/3 with Airtel Simcard S/No. 892540312210532103Z16. Nokia 105 IMEI 359204/05/566727/8 with Safcom Sim S/No 8925402788100112368317. Nokia dual SIM model RM-1035 IMEI 356490/06/078560 IMEI 2 3569/06/078584/8 with two Airtel SIM cards18. Nokia 1200 IMEI not visible with sim card S/No 8925402924100430430447219. Nokia 105 IMEI 359204/05/566/22/8 with Safcom sim S/No. 8925402788100122368320. Nokia 8800 IMEI 356641/80/718105/1 no battery21. Nokia 8800 S/No 3664100/402786/9 with Celtel SIM card22. Nokia 107 IMEI 353034/06/9900254/4 IMEI 2; 353034/06/990255/1 with Airtel Sim card S/no. 892540312210489480423. Techno T342 IMEI 860623002898367 with Airtel Sim card S/No. 0314210321655724. KGTEL 85 IMEI 352885054195696 IMEI 2; 35288505453243525. Samsung S/No duos GT 19152 IMEI 357 63305569311/0 with micro simcard26. Samsung GT 19500 IMEI 31612/06/075019/8 with Etisalat Micro Sim Card27. Samsung GT 19500 IMEI 357504/05/0077897/1 with Airtel Micro Sim Card SD Card28. Nokia 107 IMEI 354233/06/44544/9 IMEI 2; 354233/06/445445/6 with safaricom card S/No. 8925402788100122370929. Motor vehicle30. Identity Card No. 14619584 with the name of Baktash Abdalla31. Copy of identity card no. 4619584 with the name of Baktash Akasha Abdalla32. Passport No. A1768083 for Abdalla Fatma Baktash Akasha for Kenya33. Kenya Passport No. A1768082 for Baktash Abdul Rahman34. Kenya Passport for Hassan Habiba Ali Juma, No. A176808135. Kenya passport No. A1768084 in the name of Abdalla Barhiya Baktash Akasha36. Kenyan passport No. A1768087 in the name of Abdalla Hayat Baktash Akasha37. One Apple iPhone white broken38. Blackberry Zio Black IMEI 357033057910044 with Airtel Microsim39. I-phone white in color40. A greenish plant material in a clear paper bag41. 82 bags of alleged tea bags in Khaki papers42. One Shot gun S/No SG10665643. One Taurus Pistol S/No. TH 0229944. Three Ceska magazines each loaded with 16 rounds of ammunition and 10 separate rounds45. 25 rounds shotgun ammunition (8B CORONA)46. 20 rounds of shotgun ammunition (pellets)47. Gold chains: seven pieces and Gold hand chain48. Two ledger books49. Log book for Motor vehicle registration No. KAW 187 N chase frame wdb9542332K503385 make Mercedes Benz50. Logbook for Motor vehicle KBP 55W Chasis/Frame NCP51-0123402 Toyota/Wagon51. Two powdery substances wrapped in clear paper bags52. Four Diamond Trust Bank Cheque books53. Five photocopies of ID for Baktash Akasha ID. No. 1461958454. Vaccination certificate for Baktash Akasha55. Birth certificate No. 768207 for Fatma56. Birth certificate No. 768202 for Ayub57. Birth certificate No. 246880 for Hayat58. Birth certificate No. 247191 for Salma59. Birth certificate No. 246879 for Barhiya60. Copy of birth certificate No. 984282 for Abdul Rahman61. Copy of birth certificate No. 933261 for Hayat62. Copy of birth certificate No. 016020 for Ibrahim63. Copy of birth certificate No. 933256 for Ayub64. Copy of passport No. A1768090 belonging to Abdalla Akasha Baktash65. Copy of birth certificate no. 873848 for Fatma66. Copy of Identity Card No. 23683120 belonging to Faisal Akasha Abdalla67. Copy of birth certificate No. 933256 for Ayub68. Copy of birth certificate No. 247191 for Salima69. Copy of Birth Certificate No. 984282 for Abdul Rahman70. Copy of sale agreement of motor vehicle KBY 593Y Toyota Alphard71. Copy of taxpayer registration certificate No. 8244032 in the name of Baktash Akasha Abdalla72. Motor Vehicle Registration No. KBU Toyota Land Cruiser73. Motor Vehicle Registration No. KBV 111D Range Rover74. Motor Vehicle Registration No. KBN 085 D Toyota Alphard75. Motor Vehicle Registration No. KBY 448 Toyota Premio

7. The following items were returned to the Petitioners:-1. Passport No. A1768085 Abdalla Ayub Baktash2. Passport No. A1768083 Abdalla Fatma Baktash3. Passport No. A1768087 Abdalla Hayat Baktash Akasha4. Passport No. A178088 Abdalla Bahriya Baktash Akasha5. Passport No. A1768081 Abdalla Salma Baktash Akasha6. Passport No. A1768084 Hassan Habiba Ali Juma7. Passport No. A1768086 Abdalla Akasha Baktash8. Passport No. A1768082 Baktash Abdul Rahman No. A17680829. Photocopy of ID/No. 14619584 of Baktash Akasha Abdalla10. ID/No. 25635315 of Najma Juma Hassan and its photocopy11. DTB Cheque Book No. 000301-000412. DTB Cheque Book No. 000126-00015013. No. 246878 for Bahriya Baktash Akasha Abdalla14. No. 247191 for Salma Baktash Abdalla15. No. 246880 for Hayat Baktash Abdalla Akasha16. No. 7682007 for Fatma Baktash Abdalla17. No. 768202 for Ayub Baktash Akasha

8. According to the Petitioners, all the Respondents are in breach of Article 47 of the Constitution as read together with the Fair Administrative Action Act for the reason that the officers of the 2nd to 6th Respondents acted in bad faith, bias and procedural unfairness. According to the Petitioners, the items are not eligible to be subjected to extradition and this action is contrary to the respondents’ statements herein. Therefore, the items are unlawfully held.

9. It is the petitioners’ deposition that the extradition case was filed and the 1st Petitioner has severally sought the release of the items that are not subject to the extradition but the Respondents have been adamant stating that save for the items earlier released to her, the rest are liable for forfeiture.

10. According to the Petitioners, some of the properties that were seized belong to them and are not connected with the extradition. Therefore, should be released to the Petitioners.

11. The Petitioners pray for:a.A declaration that the actions and conduct of each and all the Respondents have resulted in the violation and infringement and threatens to violate and infringe the Petitioners' fundamental rights and freedoms under Articles 19,20, 23, 27, 29, 35, 49 and 50 of the Constitution.b.A declaration that pursuant to depositions made in Mombasa Chief Magistrate Misc. 356 of 2014 whereof the 1st and 2nd Petitioners are not parties, and the further submission in the said matter, the properties stated herein and cited by the 1st and 2nd Petitioners are not exhibits in the matter and are further not liable to forfeiture and orders for the immediate release of all the properties to the 1st and 2nd Petitioners.c.A declaration that the continued holding of the following properties is unlawful and in breach of the Petitioners’ constitutional rights that is to say:-i.Motor Vehicle Registration No. KBU 900Y-Toyota Land Cruiserii.Apple I -Phoneiii.Taurus Pistol S/NO.TNH 02299iv.Log Book for motor Vehicle No. KBN 085 Nv.Motor Vehicle Registration No. KBN 085N Toyota Alphardvi.Seven (7) gold chainsvii.Seven (7) gold earringsviii.One (1) hand chain with coinsd.A declaration that the personal properties stated herein do not constitute part of the Extradition Proceedings in Misc. 356 of 2014 as per the applications filed and submissions made and hence are not subject to forfeiture and that the Respondents hold the same unlawfully.e.An order of the immediate release of all the properties enumerated herein to the respective petitioners herein.f.An order for damages for loss of user and prejudice occasioned by the illegal seizure and holding of the itemsg.Any other or further order the Honorable Court deems fit and just to grant.h.Costs be provided for.

The Respondents’ case 12. The 1st, 3rd, and 4th Respondents filed a Replying Affidavit dated 1st October 2020 sworn by Sgt. Joseph Wafula No.49170. Another Replying Affidavit is dated 10th March 2021 sworn by CPL Isaac Nakitare No. 62652.

13. The respondents depone that a letter was sent from the Directorate of Criminal Investigations on 29th September 2020 to the Assets Recovery Agency informing them of assets that were liable for forfeiture seized during the arrest of Baktash Akasha Abdalla and Ibrahim Akasha Abdalla. The Akashas were arrested and extradited to the United States of America for the offence of trafficking in narcotic substances where they pleaded guilty and were convicted to 25 years and 23 years respectively.

Hearing 14. PW1 was Najma Juma Hassan, the 1st Petitioner and the daughter-in-law to the 2nd Petitioner. For the examination-in-Chief, PW1 relied on her witness statement filed and dated 21st January 2021. In her witness statement, PW1 testified that she is married to one Baktash Akasha Abdalla who is currently serving a jail term in the United States of America. She testified that when her husband was being pursued, a raid was conducted in their house plot No. 5057 Nyali on 9th November 2014. PW1 testified that during the raid, several items from their house were seized. The items are as itemized on the inventory before the court dated 9th November 2014; her family was greatly traumatized and subjected to inhuman treatment.

15. Pw1 testified that some of the items were returned as itemized in the inventory before court dated 13th November 2014. However, most of the items were not returned due to the allegation that they are still being used as exhibits in the extradition proceedings and are liable for forfeiture. She further testified that the items were never used as exhibits in the extradition proceedings which are now complete.

16. Pw1 testified that in September 2017 the DPP withdrew its review before the High Court whereupon the Presiding Judge then directed her to move the lower court for the release of the items but they were not released.

17. Pw1 further testified that some of those items held include gold chains which were being hired for weddings therefore generating income and without them, she and her family are suffering injustice.

18. During Cross-Examination, she testified that Baktash Akasha is her husband even though she did not produce any document to prove the same; that the items in question were taken from her house even though she has not produced documents to show the same. She testified that the items were held somewhere in Mombasa but she did not know who had them.

19. On re-examination, PW1 testified that she had been married to Baktash Akasha for 25 years and together they have 7 children. She testified that the person who seized her properties was called Hamisi and is a government employee. The items were taken on 9th November 2019.

20. Mr. Fedha counsel for the 1st, 2nd and 3rd Respondents chose to rely on the Replying Affidavit dated 1st October 2020 and sworn by Sgt. Joseph Wafula. Upon perusal of the Replying Affidavit the court deemed it necessary for him to be cross-examined.

21. DW1 was Sgt. Joseph Wafula, attached to the Anti-narcotics unit based at DCI headquarters in Nairobi. While relying on paragraph 9 of the Relying Affidavit, DW1 testified that they seized the identified items and those assets are now under Assets Recovery Unit. DW1 testified that there is a letter dated 29th September 2020 addressed to Assets recovery asking them to take over the matter. Consequently, the Assets Recovery opened an inquiry reference Number 61/2020. 22.

22. On cross-examination, DW1 testified that the items that the Petitioner is claiming are not mentioned in the Judgement by the United States of America court. He testified that before the conviction, they could not do anything with the items but after conviction of the Akasha brothers, the items were handed over to Asset Recovery.

23. DW2 was Hamisi Massa No. 219040 a police officer in the rank of Senior Assistant Inspector General of Police. He is the head of the Anti-narcotics unit at the DCI. He relied on the Replying Affidavit of Sgt. Joseph Wafula.

24. DW2 testified that he conducted the investigation in this case; that he took the items that the Petitioner is claiming. He testified that he was the one who wrote the letter that was sent to Asset Recovery Agency to take over the items. That the items were liable to forfeiture by the Government of Kenya under the relevant laws.

25. DW2 testified that there are still further investigations ongoing with regard to the items in question.

26. On cross-examination DW2 testified that he knew PW1. That he seized the property in 2014 and the properties were in his custody. DW2 testified further that he waited for 2020 to write a letter to the Assets Recovery Agency because forfeiture had to happen after conviction of the Akasha brothers. He further testified that the items that were not liable to forfeiture were returned to the Petitioners in 2014.

27. Dw2 testified that the items referred to only relate to Baktash Akasha and no other person. That the items in annexture JW2, JW3 and JW4 refer to items in the name of Najma Juma Hassan the petitioner. He explained that if a property is connected with an offender, it is liable for forfeiture. DW2 testified further that a Notice of seizure was served on Baktash Akasha in 2014 and the items were retained under Sections 74 and 75 of the Narcotics Drugs Control Act.

28. DW2 testified that the motor vehicles were released to the Petitioners; that gun No. THN02299 was sent to the USA since it was recovered from Baktash Akasha. The gun is still in the USA. DW2 testified that Motor Vehicle KBU 900Y is still being held in Mombasa since it belonged to Baktash. Motor vehicle KBN 085 D even though it is registered in the Petitioner's name, Baktash had interest in it.

29. On Re-examination DW2 stated that the letter dated 29th September 2020 was not written as a reaction to this case; that there are still other proceedings going on in the USA.

30. DW3 was Isaac Makitari. Mr Fedha his counsel stated that they filed a Replying Affidavit on 11th March, 2021. However, the same was intended to be a Witness statement for DW3. The Court adopted the Replying Affidavit as DW3 witness statement.

31. DW3 who is attached to the Assets recovery office as an investigator based in Nairobi adopted his witness statement dated 10th March, 2021 as evidence in Chief. DW3 testified that he received a letter dated 29th September 2020 from DCI. The Letter was requesting the Assets Recovery office to initiate forfeiture proceedings on properties seized from Baktash and Ibrahim Akasha who were arrested and taken to the USA for charges on offences related to narcotics and were convicted. DW3 testified that he instituted the proceedings on Motor Vehicles KBU 900 Y and KBN 085 N; that from the NTSA records, motor vehicle KBU 900Y is co-owned by Abdalla Baktash Akasha and Diamond Trust Bank.

32. DW3 testified further that the motor vehicle KBN 085N belonged to Del Monte Kenya Limited; that none of the vehicles mentioned here belongs to the Petitioners. DW3 testified that before they received the letter from the Narcotics Unit, they had formed a multi-agency team to look into the properties acquired by the Akasha Family. The investigation is complex and the Covid-19 situation slowed the process. It was their hope that the process would be completed within 6 months. DW3 testified that once the investigations are complete, the file will be returned to the Director Assets recovery who files preservation proceedings in court.

33. On cross examination by Mr. Kiogora, DW3 testified that he has never visited the place where the items are kept. That they have not yet issued a seizure notice since the investigation is not yet complete. He testified that it is not necessary to have a conviction for forfeiture to take place. That the Assets Recovery Agency started operations in 2017. He testified that the gold chains that are being claimed by the Petitioners are still being investigated for their rightful owners even though they were seized from the Akasha's house.

34. DW3 testified that after the initial investigation some items were returned to Akasha's family including a Range Rover KBN 111D, Toyota Premio KBY 448N. A beach plot and several Bank accounts are under investigation.

35. On Cross-Examination by Mr. Makuto, DW3 testified that they are still investigating the matter with a view of commencing forfeiture proceedings.

Submissions 36. The Petitioners filed submissions dated 29th April 2021. The Respondents did not file submissions.

37. The Petitioners’ counsel submitted that the actions by the Respondents have denied the Petitioners the right to equality before the law and the right to equal protection and equal benefit of the Law. The Respondents have breached the Petitioner's rights to human dignity and the right to property contrary to Articles 28 and 40 of the Constitution. The breach of Article 31 abrogates right to privacy. Counsel submitted that the right to privacy includes the right not to have their possession seized. Counsel argues that the decision on forfeiture should adhere to Article 47(1) on Fair Administrative Action.

38. Counsel submitted that a conviction in criminal proceedings is not a condition precedent to Civil forfeiture; that the action of the respondents to hold onto the Petitioners’ properties since 2014 awaiting criminal conviction so that they can initiate civil forfeiture is an illegality that in essence has defeated legislative purpose and intent of Section 92 of the Proceeds of Crime and anti-Money Laundering Act (POCAMLA) No. 9 of 2009.

39. Counsel relied on the case of Martin Shalli -vs- Attorney General of Namibia & Others High Court of Namibia Case No POCA 9/2011 and Teckla Nangjila Lameck -vs- President of Namibia 2012(1) NR 255(HC) while submitting that proceedings for forfeiture of proceeds of crime are directed at confiscation of the proceeds of crime and not punishing an accused person.

Determination 40. I have read and considered the substance of this petition. It is not in dispute that Baktash Akasha was arrested and convicted for drug-related offences. From the petition, the affidavits, the evidence and the submissions before this Court, I adduce the following issues:-a.Whether the Respondents are in breach of the rights of the petitionersb.Whether the Petitioners are entitled to the release of the propertiesc.What remedies are available to the Petitioners

Whether the Respondents are in breach of the rights of the petitioners. 41. The petitioners argue that the following rights and freedoms were violated by the agents of the Respondents; the right to fair administrative action. The petitioners have argued that the properties seized are still being held yet most of those items and properties are owned by the petitioners and should not form part of the extradition proceedings.

42. The petitioners further argue that their property right has been infringed since property and items personally owned by the Petitioner were seized and have not been released to the Petitioners despite the petitioners making numerous demands for release of the same.

43. The petitioners have also argued that their right to equality and freedom from discrimination have been violated by the respondents. The argument is that the respondents have taken action concerning the petitioners’ properties without balancing the proportionate interests of all the people affected.

44. The petitioners also argue that their right to human dignity has been violated; and that the respondents have not respected and protected the petitioners’ right to dignity as provided under Article 28 of the constitution.

45. Article 27 (1) of the Constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law.

46. Article 28 provides that every person has inherent dignity and the right to have that dignity respected and protected.

47. The Petitioners' argument is that the respondents took away the properties and the items from the house without considering that some of the items belonged personally to the petitioners.

48. The Respondents argument is that the properties and items that were seized from the petitioners' house belonged to Baktash Akasha and other items were returned to the petitioners. The respondents' argument is that Baktash Akasha was convicted of drug related crimes in the USA and it is believed that the properties were acquired from drug deals or money obtained through criminal activities.

49. Article 40 (6) provides that the right to property does not extend to any property that has been found to have been unlawfully acquired. In Schabir Shaik & others v State Case CCT 86/06(2008) ZACC 71, the court in defining proceeds of crime stated:-“..One of the reasons for the wide ambit of the definition of "proceeds of crime" is, as the Supreme Court of Appeal noted, that sophisticated criminals will seek to avoid proceeds being confiscated by creating complex systems of "camouflage" ..... The Supreme Court of Appeal held that a person who has benefited through the enrichment of a company as a result of a crime in which that person has an interest will have indirectly benefited from that crime.”

50. From the provision of Article 40(6), right to property is not automatic when it comes to property that has been acquired unlawfully.

51. From the evidence provided by both sides to this matter, some of the properties and items seized were returned to the petitioners. The remaining items according to the respondents' witnesses are subject of forfeiture proceedings.

52. From the foregoing, this court is satisfied that the respondents, in seizing the items and properties from Baktash Akasha's house were exercising authority that is granted by the constitution and statutes in the enforcent of law. I therefore fail to find that this process infringes the petitioners’ right either to property or to privacy.

Whether the Petitioners are entitled to the release of the properties 53. The petitioners have argued that the respondents have failed to release properties that belong to them personally and not to Baktash Akasha. The petitioners are specifically seeking that the following properties be released to them: -a.Motor Vehicle Registration No. KBU 900Y- Toyota Land Cruiserb.Apple I -Phonec.Taurus Pistol S/NO.TNH 02299d.Log Book for motor Vehicle No. KBN 085 Ne.Motor Vehicle Registration No. KBN 085N Toyota Alphardf.Seven (7) gold chainsg.Seven (7) gold earringsh.One (1) hand chain with coins

54. DW3 testified that Motor vehicle KBU 900Y is registered in the names of Baktash Akasha and Diamond Trust Bank and therefore does not belong to any of the petitioners. DW2 testified that motor vehicle KBN 085 N is registered in the name of the 1st petitioner but Baktash Akasha had interest in the vehicle. DW2 also testified that Taurus Pistol S/No. TNH 02299 was taken to the USA court as exhibit and it has never been returned.

55. As for the rest of the items that the petitioners are demanding, the petitioners have not provided any proof as to sole ownership of the same. The items are being held for forfeiture proceedings. If Baktash Akasha and his brother were convicted of drug related offences, it means that most of their properties and items were acquired through drug sale proceeds and such property is liable for forfeiture to the government. POCAMLA is an Act of Parliament to provide for the offence of money laundering and to introduce measures for combating the offence, to provide for the identification, tracing, freezing, seizure and confiscation of the proceeds of crime, and for connected purposes.

56. Section 2 of the Act defines proceeds of crime as“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;”

57. The petitioners should prove their source of income and prove that the properties were not acquired through criminal proceeds so as to claim ownership of the items and properties as sought. The properties and items sought by the petitioners cannot be returned at this point since they form part of investigations for forfeiture.

What remedies are available to the petitioners. 58. The Respondents have stated that the forfeiture proceedings are yet to commence due to different factors that led to delay including the Covid-19 situation and the fact that the respondents had to wait for the criminal proceedings against Baktash Akasha in the USA to be concluded.

59. The petitioners have argued that conviction is not a pre-condition for forfeiture proceedings.

60. Under Part VIII of POCAMLA, the recovery proceedings are directed at forfeiture of the funds and assets and conviction is not a precondition. What is required is the identification of lack of reasonable explanation disclosing legitimate source of the funds in issue. section 92(4) of POCAMLA provides that the validity of the forfeiture order is not in any way affected by the outcome of the criminal proceedings. In Assets Recovery Agency vs Pamela Aboo (2018) eKLR the court held that the burden of proof in civil cases is on a balance of probabilities, and forfeiture proceedings under section 92(1) of POCAMLA are civil in nature.

61. From the foregoing, it is evident that the respondents have taken a very long time without instituting the forfeiture proceedings. Nevertheless, items and properties that are suspected to be proceeds of crime cannot be returned without proper investigation on the circumstances under which they were acquired. That being the case, the best that this court can do is to order as I hereby do, that the said forfeiture proceedings do start within 60 days from the date of this Order failure to which the Petitioners shall be at liberty to make an application asking for the release of all the items and properties seized and which are not subject to any legal process.

62. The respondents have not explained why the birth certificates seized were not returned to the petitioners. I hereby order that all the birth certificates seized be returned to the petitioners.

It is so ordered.

DATED AND DELIVERED IN NAIROBI THIS 8TH DAY OF NOVEMBER 2023……………………………………..E.K. OGOLAJUDGEIn the presence of:N/A for the PetitionersN/A for the RespondentsGisiele Muthoni Court Assistant