https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1534

Mbogo t/a Sahara Consultants & 5 others v Assets Recovery Agency (Civil Appeal E221 of 2020) [2026] KECA 1534 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1534 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E221 of 2020 PO Kiage, LA Achode & AO Muchelule, JJA July 31, 2026 Between Lilian Wanja Muthoni Mbogo t/a Sahara Consultants 1st Appellant Lidi Holdings Limited 2nd Appellant Lidi Estates Limited 3rd Appellant SMM 4th Appellant SMM 5th Appellant SMK 6th Appellant and Assets Recovery Agency Respondent (An appeal against the Judgment and Decree of the High Court of Kenya (Mumbi Ngugi, J.) dated 15th April, 2020 in ACEC Application No. 58 of 2018) Judgment 1.By this appeal the appellants challenge the judgment and decree of Mumbi Ngugi, J. (as she then was) in the Anti-Corruption and Economic Crimes Division of the High Court of Kenya at Nairobi dated 15th April 2020, by which the learned Judge allowed the application dated 24th December 2018 (forfeiture application) and granted the following orders;1.A declaration be and is hereby issued that a total of USD 105,293.7 and Ksh.22,445,487.74 held in bank accounts Numbers 018xxxxxxxx83, 018xxxxxxxx78, 018xxxxxxxx04, 018xxxxxxxx67, 018xxxxxxxx12, 018xxxxxxxx98, 080xxxxx00, 522xxxxx01, 704xxxxx01 and 782xxxxx07 in the name of Lilian Wanja Muthoni Mbogo t/a Sahara Consultants, Lidi Holdings Limited, Lidi Estates Limited, SMM, SWM and SMK at Equity Bank Limited, Community Branch Nairobi and Diamond Trust Bank Limited, Capital Centre and Village Market Branches are proceeds of crime and therefore liable for forfeiture to the state.2.An order be and is hereby issued forfeiting the following funds to the government and transferring the said funds to the applicant:i.USD 67,331.9 held in account number 018xxxxxxxx83 in the name of Lilian Wanja Muthoni Mbogo trading in the business name of Sahara Consultants held at Equity Bank Limited, Community Branch, Nairobi;ii.USD 28, 981.97 held in account number 018xxxxxxxx78 in the name of LIDI Estates Limited held at Equity Bank Limited Community Branch, Nairobi;iii.Ksh.2,297,495.00 held in account number 018xxxxxx04 in the name of LIDI Estates Limited at Equity Bank Limited, Community Branch, Nairobi;iv.Ksh.257,220 held in account number 018xxxxxxxx67 in the name of LIDI Holdings Limited held at Equity Bank Limited, Community Branch, Nairobi;v.USD 8,979.83 held in account number 018xxxxxxxx12 in the name of LIDI Holdings Limited held at Equity Bank Limited Community Branch, Nairobi;vi.Ksh.1,685,430.84 held in account number 018xxxxxxxx98 in the name of Lilian Wanja Muthoni Mbogo trading in the business name of Sahara Consultants held at Equity Bank Limited, Community Branch, Nairobi;vii.Ksh.5,653,431.89 held in account number 080xxxxx00 in the name of Lilian Wanja Muthoni Mbogo trading in the business name of Sahara Consultants held at Diamond Trust Bank Limited, Capital Centre Branch, Nairobi;viii.Ksh.2,903,996.71 held in account number 522xxxxx01 in the name of SMM held at Diamond Trust Bank Limited, Village Market Branch Nairobi;ix.Ksh.4,788,763.59 held in account number 704xxxxx01 in the name of SMK held at Diamond Trust Bank Limited, Village Market Branch, Nairobi;x.Ksh.4,859,169.71 held in account number 782xxxxx07 in the name of SWM held at Diamond Trust Bank Limited, Capital Centre Branch. 2.Those orders had been sought by the respondent, the Assets Recovery Agency (ARA), under sections 81, 90 and 92 of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA). The ARA is a body corporate established under section 53 of the POCAMLA (the Act) with the mandate of identifying, tracing, freezing and recovering proceeds of crime. 3.Before the forfeiture application was heard, the appellants lodged a notice of motion dated 1st July 2019 seeking, in the main, an order that the Deputy Registrar of the court or the Deputy Registrar at the High Court at Siaya, do conduct a site visit on the 1st appellant’s farm situated in Uyoma, Siaya County, and table a report of that visit to the court. The application was premised on grounds that although the 1st appellant had furnished evidence of her agribusiness ventures, conducted in the family farm located in Uyoma, Siaya County, as proof of one of her major and steady sources of income over the years, the ARA had cast aspersions and disputed the existence of the farm and its production capacity. By a ruling dated 7th October 2019, Mumbi Ngugi, J. (as she then was) dismissed that application with costs to ARA. In dismissing the application, the learned Judge observed that there was no evidence before court to demonstrate that the 1st appellant owned the farm. Further, there was no evidence of the earnings from the farm or to show that the substantial deposits in the subject accounts had been made from the earnings from the farm. 4.The forfeiture application was predicated on grounds on the face of it to the extent that, pursuant to sections 81 to 89, Part VIII of the Act, ARA is authorised to institute civil forfeiture proceedings and seek orders prohibiting any person, subject to such conditions as the court may specify, from dealing in any manner with any property if there are reasonable grounds to believe that such property is a proceed of crime. Pursuant to section 90 of the Act, where a preservation order is in force, ARA may apply to the High Court for an order of forfeiture to the government of all or any of the property that is subject to the preservation order. 5.To give context to the application, ARA explained that following the arrest and arraignment to court on 29th May 2018, of certain National Youth Service (NYS) staff and suppliers including the 1st appellant, who were charged with various offences including abuse of office and conspiracy to commit a felony, ARA commenced investigations to recover proceeds of crime, in exercise of its mandate. Investigations conducted by the Directorate of Criminal Investigations (DCI) into the theft and fraud of public funds amounting to Ksh.467,896,993 from NYS, a state department in the Ministry of Public Service, Youth and Gender, revealed massive fraud and embezzlement of public funds, perpetuated by public officials and private persons, some of whom were charged with various offences in Nairobi Anti-Corruption Court Chief Magistrates’ Court (Milimani) Criminal Case No. ACC. 8, 10, 12, 13, 16, and 17 of 2018. Investigations further established that the funds were stolen and/or fraudulently transferred from the NYS to the bank accounts of various suppliers who fictitiously supplied goods and services that were not rendered to NYS. On 26th April 2018, ARA received information that there were funds held at Equity Bank, Community Branch, which funds were suspected to be proceeds of crime. 6.ARA explained that investigations revealed that the 1st appellant opened and operated bank accounts on her behalf, her companies and business entities’ behalf and on behalf of her children. The said bank accounts received suspicious huge cash deposits in US dollars and Kenya shillings. Further, investigations revealed that there were reasonable grounds to believe that the cash in question was part of the funds stolen from NYS and the appellants had not given any reasonable explanation of any legitimate source of the funds. The investigations also disclosed that the deposits were of cash unlawfully acquired, hence proceeds of crime pursuant to the provisions Act. It was asserted that there was no justifiable explanation from the 1st appellant on why the accounts of her children, some of them minors, were conducting huge suspicious cash transactions. ARA claimed that there were reasonable grounds to believe that the accounts of the 1st appellant’s children were used as conduits of money laundering contrary to sections 3, 4 and 7 as read with section 16 of the Act. On 29th October 2018, it proceeded to obtain a preservation order against the following funds;i.USD 67,331.9 held in account number 018xxxxxxxx83 in the name of Lilian Wanja Muthoni Mbogo trading in the business name of Sahara Consultants held at Equity Bank Limited, Community Branch, Nairobi;ii.USD 28,981.97 held in account number 018xxxxxxxx78 in the name of LIDI Estates Limited held at Equity Bank Limited Community Branch, Nairobi;iii.Ksh.2,297,495.00 held in account number 018xxxxxxxx04 in the name of LIDI Estates Limited held at Equity Bank Limited, Community Branch, Nairobi;iv.Ksh.257,220 held in account number 018xxxxxxxx67 in the name of LIDI Holdings Limited held at Equity Bank Limited, Community Branch, Nairobi;v.USD 8,979.83 held in account number 018xxxxxxxx12 in the name of LIDI Holdings Limited held at Equity Bank Limited Community Branch, Nairobi;vi.Ksh.1,685,430.84 held in account number 018xxxxxxxx98 in the name of Lilian Wanja Muthoni Mbogo trading in the business name of Sahara Consultants held at Equity Bank Limited, Community Branch, Nairobi;vii.Ksh.5,653,431.89 held in account number 080xxxxx00 in the name of Lilian Wanja Muthoni Mbogo trading in the business name of Sahara Consultants held at Diamond Trust Bank Limited, Capital Centre Branch, Nairobi;viii.Ksh.2,903,996.71 held in account number 522xxxxx01 in the name of SMM held at Diamond Trust Bank Limited, Village Market Branch Nairobi;ix.Ksh.4,788,763.59 held in account number 704xxxxx01 in the name of SMK held at Diamond Trust Bank Limited, Village Market Branch, Nairobi;x.Ksh.4,859,169.71 held in account number 782xxxxx07 in the name of SWM held at Diamond Trust Bank Limited, Capital Centre Branch. 7.It was averred that the preservation order against the above funds was gazetted on 9th November 2018, vide Gazette Notice No. 11570 pursuant to section 83(1) of the Act. Further, investigations conducted by ARA revealed that the funds were from illegitimate sources and some were stolen from NYS. It was asserted that there were reasonable grounds to believe that the funds held in the appellants’ accounts were proceeds of crime, deposited by the 1st appellant, her family members, agents and associates. Additionally, the cash transactions in those accounts were made between January 2016 and March 2018, the very the period the theft of funds from NYS occurred. ARA urged that it was in the public interest that the orders sought be granted and the suspect funds forfeited to the State. 8.The application was supported by the affidavit of No. 60040 SSGT. Fredrick Musyoki, (Sergeant Musyoki) a police officer attached to ARA as an Investigator. He averred that following the arrest and arraignment to court on 29th May 2018, of the NYS staff and suppliers including the 1st appellant on various charges, among them, abuse of office and conspiracy to commit a felony and, acting on information that the 1st appellant had accounts in Equity Bank, he opened an inquiry file No. 15/2018 to investigate the matter. On 30th May 2018, he filed ex parte Misc. Criminal Application No. 1839/2018 seeking orders to search, inspect, seize, freeze and preserve funds in the underlisted accounts owned and/or controlled by the 1st appellant trading in the name of Sahara Consultants, as well as other accounts associated with her. The court granted him the orders for 90 days. The accounts were;i.Number 0180272692383 in the name of Lilian Wanja Muthoni T/A Sahara Consultants at Equity Bank Limited.ii.Number 0180290930598 in the name of Lilian Wanja Muthoni T/A Sahara Consultants at Equity Bank Limited.iii.Number 018027378412 in the name of Lidi Holdings Limited at Equity Bank Limited.iv.Number 0180273781178 in the name of Lidi Estates Limited at Equity Bank Limited.v.Number 0180273780467 in the name of Lidi Holdings Limited at Equity Bank Limited.vi.Number 0180273781104 in the name of Lidi Estates Limited at Equity Bank Limited. 9.It was deposed that following the expiry of the orders granted on 30th May 2018, ARA applied to the High Court for orders to investigate, inspect, freeze and preserve the above accounts for another period of 90 days. Sergeant Musyoki averred that he analysed the statements of accounts and established that there were suspicious huge cash deposits, withdrawals and intra bank transfer of funds within the accounts. On further investigation, he received information that the 1st appellant had other accounts held at Diamond Trust Bank Limited. On 28th August 2018, he filed another ex-parte application before the Chief Magistrates’ court vide Misc. Criminal Application Number 2814 of 2018 seeking orders to search, investigate, inspect and seize the said accounts. He was granted orders to investigate;i.Account Number 525xxxxx01 in the name of SMM at Diamond Trust Bank Limited.ii.Account Number 782xxxxx07 in the name of SWM at Diamond Trust Bank Limited.iii.Account Number 7041746001 in the name of SMK at Diamond Trust Bank Limited.iv.Account Number 080xxxxx00 in the name of Lilian t/a Sahara Consultants at Diamond Trust Bank Limited. 10.On 7th September 2018, ARA applied to the High Court for orders to investigate, freeze and preserve the four accounts for a period of 90 days and the orders were granted. 11.Sergeant Musyoki averred that his analysis of the opening forms and statement of accounts of the ten (10) accounts established that there were massive suspicious cash deposits, withdrawals and intra and interbank transfers. The various suspicious deposits were made as follows;i.USD account No. 018xxxxxxxx83 in the name of Lilian Wanja Muthoni Mbogo T/A Sahara Consultants held at Equity Bank Limited, Community Branch, Nairobi, received cash USD deposits of 79,000 on diverse dates as follows;a.11th May 2017 USD 10,000b.6th July 2017 USD 9,000c.2nd August 2017 USD 40,000d.7th August 2017 USD 10,000e.25th August 2017 USD 10,000ii.USD account number 018xxxxxxxx78 in the name of Lidi Estates Limited held at Equity Bank Limited, Community Branch, Nairobi, received cash USD deposits of 29,000 on diverse dates as follows;a.5th August 2017 USD 20,000 b.29th August 2017 USD 9,000iii.Kenya Shillings account number 018xxxxxxxx04 in the name of Lidi Estates Limited held at Equity Bank Limited, Community Branch, Nairobi, received cash deposits of Ksh.1,850,000 on diverse dates as follows;a.25th August 2017 Ksh.900,000b.18th September 2017 Ksh.950,000iv.Kenya Shillings account number 018xxxxxx67 in the name of Lidi Holdings Limited held at Equity Bank Limited, Community Branch, Nairobi, received cash deposits of Ksh.3,360,000 on diverse dates as follows;a.25th August 2017 Ksh.900,000b.11th January 2018 Ksh.470,000c.8th May 2018 Ksh.1,094,500 deposits from Lidi Holdingsd.15th May 2018 Ksh.895,500 deposits from Lidi Holdings.v.USD account number 018xxxxxxxx12 in the name of Lidi Holdings Limited held at Equity Bank Limited, Community Branch, Nairobi, received cash deposits of USD 29,000 on diverse dates as follows;a.5th August 2017 USD 20,000b.29th August 2017 USD 9,000vi.Kenya Shillings account number 782xxxxx07 in the name of SWM held at Diamond Trust Bank Limited, Capital Centre Branch, Nairobi, received cash deposits of Ksh.4,320,000 on diverse dates as follows;a.15th April 2016 Ksh.100,000b.2nd July 2016 Ksh.200,000c.27th July 2016 Ksh.600,000d.28th July 2016 Ksh.200,000e.13th September 2016 Ksh.150,000f.23rd January 2017 Ksh.500,000g.21st March 2017 Ksh.500,000h.31st July 2017 Ksh.800,000i.24th August 2017 Ksh.900,000j.22nd August 2018 Ksh.70,000k.2nd February 2018 Ksh.300,000vii.Kenya Shillings account number 704xxxxx01 in the name of SMK held at Diamond Trust Bank Limited, Village Market Branch, Nairobi, received cash deposits of Ksh.4,120,000 on diverse dates as follows;a.4th March 2016 Ksh.100,000b.27th July 2016 Ksh.600,000c.28th July 2016 Ksh.200,000d.13th September 2016 Ksh.150,000e.23rd January 2017 Ksh.500,000f.21st March 2017 Ksh.500,000g.31st July 2017 Ksh.800,000h.24th July 2017 Ksh.900,000i.22nd January 2018 Ksh.70,000j.2nd February 2018 Ksh.300,000viii.Kenya Shillings account number 522xxxxx01 in the name of SMM held at Diamond Trust Bank Limited, Village Market Branch, Nairobi, received cash deposits of Ksh.6,255,750 on diverse dates as follows;a.14th April 2016 Ksh.100,000b.31st May 2016 Ksh.200,000c.2nd June 2016 Ksh.200,000d.7th June 2016 Ksh.300,000e.27th July 2016 Ksh.800,000f.27th July 2016 Ksh.500,000g.13th September 2016 Ksh.400,000h.23rd January 2017 Ksh.500,000 i. 21st March 2017 Ksh.600,000j.16th June 2017 Ksh.100,000k.31st July 2017 Ksh.800,000l.24th August 2017 Ksh.900,000m.2nd January 2018 Ksh.150,750n.22nd January 2018 Ksh.60,000o.2nd February 2018 Ksh.400,000p.13th February 2018 Ksh.100,000q.1st March 2018 Ksh.145,000ix.Kenya Shillings account number 080xxxxx00 in the name of Lilian Wanja Muthoni Mbogo/Sahara Consultants held at Diamond Trust Bank Limited, Capital Centre Branch, Nairobi, received cash deposits of Ksh.7,200,000 on diverse dates as follows;a.4th March 2016 Ksh.200,000b.27th July 2016 Ksh.800,000c.28th July 2016 Ksh.1,300,000d.23rd January 2017 Ksh.1,500,000e.21st March 2017 Ksh.800,000f.31st July 2017 Ksh.800,000g.24th August 2017 Ksh.900,000h.24th August 2017 Ksh.900,000 12.Sergeant Musyoki deposed that his investigations established that the deposits were made in tranches below Ksh.1,000,000, in order to evade the reporting threshold as per section 44 and the 4th Schedule of the Act, regulation 34 of the POCAMLA Regulations, 2013 and the Central Bank of Kenya Prudential Guidelines, for account holders to declare the source of their money. He explained that on 24th October 2018, he served all the appellants with the Kenya Police P52 requisition form to compel attendance, to appear before him on 25th October 2018 at 9.00am at DCI headquarters, Mazingira House, along Kiambu Road, for purposes of recording their statements in relation to the sources of the funds in issue. In compliance with the notice, the 1st appellant and her co-director husband, Dick Achieng Oneko, appeared before him on 25th October 2018, accompanied by their advocate. The 1st appellant allegedly stated that the cash in issue was given to her by her husband who is a co-director of their companies and that subsequently she split the cash into tranches and deposited it into the subject accounts. The 1st appellant also stated that she does joint farming with her husband in Siaya County where they grow agricultural crops and the farm produce thereof was the source of some of the cash in issue. 13.It was asserted that the 1st appellant did not produce any proof of existence of a farm business such as, trade permits, tax returns, tax compliant certificate, capital gain certificate, electronic tax register (ETR) or vendor/purchaser invoices. Sergeant Musyoki highlighted that although the farm produce was sold in Siaya, the 1st appellant made the cash deposits in Nairobi. He indicated that the 1st appellant’s husband claimed that the cash which he gave to her came from his earnings from a company known as Nile International, where he offered consultancy services in the Republic of Southern Sudan. The 1st appellant’s husband allegedly stated that, he would be paid in cash for his services without signing anywhere to confirm receipt; and, he brought the said cash into the country without declaring it at the point of entry into Kenya. It was averred that the failure to declare the cash at the point of entry was a violation of section 12(1) and the 2nd schedule of the Act and regulation 8 of the POCAMLA regulations. Sergeant Musyoki deposed that the 1st appellant’s husband did not produce any evidence to prove the existence of such consultancy services and the nature of his clientele. He claimed that his investigations established that there were reasonable grounds to believe that the cash in question was part of the funds that were stolen from NYS. In conclusion, it was urged that were the court to disallow the orders sought, then the funds would dissipate to the disadvantage of the economy and the public. 14.The appellants opposed the forfeiture application through an affidavit sworn on 5th April 2019, by the 1st appellant, on her own behalf and that of the rest of the appellants. She confirmed that she is a director of the 2nd and 3rd appellant companies. She is also the biological parent to the 4th, 5th and 6th appellants. The 1st appellant averred that the forfeiture application was premature and fatally defective as it offended sections 83(3) and 90(2) of the Act because no notice of its lodgement was given. She urged that the application should be struck out. She further claimed that the application was misconceived because there was no evidence to support the allegation that the subject bank accounts contain proceeds of crime. The 1st appellant denied the assertion that they did not reasonably explain the source of the subject funds, contending that on 19th November 2018, she delivered to ARA documents and evidence showing legitimate sources of the funds. Further, she asserted that pursuant to section 64(3) and (4) of the Act, the conclusion that the funds in the subject accounts were stolen from the NYS is incorrect, irrational, unreasonable and malicious since her evidence was ignored. 15.Referring to the definition of the word ‘forfeiture’ as elucidated in Black’s Law Dictionary, 9th edition, page 722, and the definition of the phrase ‘proceeds of crime’ under section 2 of the Act, it was contended that for one to allege in a forfeiture application that property constitutes proceeds of crime, they must show, commission of an offence; derivation or realisation of property as a result of the offence; or derivation or realisation of income, capital or other economic gains or benefits from property successfully converted, transformed or intermingled with the property realised from the offence. The 1st appellant posited that there was no proof that a crime was committed at NYS where public funds were stolen; and, there was no evidence showing the alleged loss of public funds, whether through audit reports or accounting records. 16.Moreover, there was no charge of theft levelled against the appellants to substantiate the forfeiture application. The 1st appellant averred that there was no proof that the appellants received NYS property or derived economic benefit from it or that NYS funds were converted. 17.It was alleged that forfeiture is a sentence delivered after conviction following a full criminal trial but in this case no conviction had been issued against any of the appellants. Additionally, no conviction is capable of being issued in relation to the 2nd, 3rd, 4th, 5th and 6th appellants because they are not charged in any court of law with any offence. The 1st appellant averred that by purporting to arbitrarily deprive them of their lawful property and limiting their access to funds in their bank accounts, the application violated their right under Article 40(2) of the Constitution. She contended that since the standard of proof in a forfeiture application is on a balance of probabilities, the ARA had to discharge that burden by proving the allegations with evidence, before the burden could shift to them. Further, the application failed to prove actual loss of public funds so as to inform the instant proceedings. To buttress that argument, the 1st appellant proceeded to explain the financial management systems in the ministry where she worked and the procedure of withdrawing funds from the Consolidated Fund as governed by the Public Finance Management Act (PFMA). She asserted that pursuant to section 206 of the PFMA, she was not liable in the proceedings herein since she had discharged the powers and functions vested in her office in good faith. The 1st appellant claimed that the forfeiture application lacked precision in its allegations and was devoid of sufficient detail to back the allegations contrary to Article 50(2)(b) of the Constitution. Moreover, the ARA violated the same provision when it failed to serve each of the respondents personally. 18.It was deposed that the notices summoning the appellants were served on them on 24th October 2018, late in the afternoon, demanding their attendance at CID headquarters to record statements on 25th October 2018 at 9.00am; they were not given, prior notice of the particulars or scope of investigations against them; adequate opportunity to prepare their defences or responses; and, there was no prior notice of the documents that would be needed while recording their defence. In a bid to debunk the allegations by ARA, the 1st appellant furnished evidence which to her explained the sources of the funds in the subject accounts. She provided evidence of her farm in Siaya County which she claimed purchases and resells fruits and other products for profit. She explained that her husband engages in international consultancy services, in the energy and natural resources sector, where he earns considerable income through commissions, and part of that income was channelled to the subject accounts. Further, as a public servant she invested portions of her salary into various income generating ventures as well as into real estate, landholding and construction ventures. The 1st appellant stated that she also took out mortgages and loans for investment in profit making ventures and directed part of the proceeds to the accounts. 19.She asserted that the mere issuance, existence or gazettement of preservation orders did not mean that the funds constituted proceeds of crime nor did it translate to a forfeiture order. Additionally, the existence of a criminal case against her and holding of multiple bank accounts in the names of business entities, companies and minors did not amount to the offence of money laundering or any cognisable offence. In conclusion, the court was implored to dismiss the forfeiture application and unconditionally lift the preservation orders. Further, the 1st appellant urged the court to exercise its powers under section 94 (1) and (2) of the Act and exclude her interest together with that of 2nd to 6th appellants because they had demonstrated legitimate acquisition of the funds in the subject bank accounts. 20.In reply to the appellants’ averments, No. 62x52 CPL Isaac Nakitare, a police officer attached to ARA and part of the team that undertook investigations into the instant matter, swore an affidavit on 27th May 2019, deposing that the regimes of civil forfeiture and criminal forfeiture are distinct from each other and their respective proceedings are different. On the question of service of proceedings, he averred that the 1st appellant directed them to serve her with the pleadings and summons, on behalf of the rest of the appellants. Concerning whether the 1st appellant had a farm which was part of her sources of income, CPL Nakitare explained that accompanied by Sergeant Musyoki, they travelled to Uyoma in Rarieda District at the home of the late Achieng Oneko, who was the father-in-law to the 1st appellant and established that there was no farm in existence as alleged, but only a piece of land with shrubs. They also met Nam Oneko (Mr. Oneko), a brother-in-law to the 1st appellant, who informed them that the land belonged to the family of the late Achieng Oneko and was not yet sub-divided among the family members. CPL Nakirate further averred that they noted that there was one small-sized green house located on a small portion of the land which Mr. Oneko told them belonged to him. Inside the green house were some small tomato plants which were yet to mature and which, to their estimation, were not commercial scale level. Mr. Oneko allegedly informed them that he uses the green house for subsistence farming. 21.CPL Nakitare asserted that most of the receipts that were produced by the 1st appellant fell outside the years 2016 to 2018, the period when the funds in question were stolen from the coffers of the NYS. Moreover, although the authenticity of the receipts produced could not be ascertained, the total amount on the receipts which fell within the period when the suspicious deposits were made was Ksh.390,000, a sum that is far below the total amount of funds in issue. To the respondent, the allegation that the 1st appellant was a farmer and the funds in issue proceeds of the farming business, was incorrect, deceitful and a plot to disguise, conceal and hide the source of the said funds, a classical scheme of money laundering contrary to the provisions of the Act. 22.Further, on 24th April 2019, ARA filed an ex-parte Misc. Criminal Application No. 1748 of 2019 and obtained orders to search, inspect, seize, and obtain account opening documents and statements, and other relevant documents for account No. 010xxxxxxxx88 held in the name of Nile International Limited at CFC Stanbic Bank, Westgate Branch. CPL Nakitare averred that following their analysis of the documents, they established that from 9th August 2011 to 19th April 2019, a total of 9 credits/deposits of USD 225,005.67 which was approximately Ksh.22,725,572.67 at the time, were made in the said account. This was contrary to the 1st appellant’s assertion that her husband received Ksh.40,000,000 in that account from consultancy works. CPL Nakitare further established that from 9th August 2011 to 19th April 2019, a total of 282 debits/withdrawals amounting to USD 224, 718.90, which was approximately Ksh.22,696,608.9 were made in the said account. According to his analysis of the account there was no single deposit in the years 2016, 2017 and 2018, which was the period under investigation. In conclusion, it was urged that from the investigations there was sufficient evidence demonstrating that the subject funds were proceeds of crime. 23.CPL Nakitare made a further reply on behalf of the ARA vide a supplementary affidavit sworn on 30th May 2019, in which he averred that on 28th May 2019, he received the income tax returns statements of the 1st appellant for the years 2015, 2016, 2017 and 2018 from the Kenya Revenue Authority and they did not disclose any income from farming business. The only income that was disclosed for the years 2015, 2016, 2017 and 2018 was her salary returns from NEPAD Kenya Secretariat and the State Department for Public Service, who were her previous employers. It was deposed that the tax returns were a clear indication that the 1st appellant did not have any farming business which generated income and which could be considered as a source of the funds in the subject accounts. 24.The matter was canvassed by way of written submissions and subsequently the learned Judge (Mumbi Ngugi, J., as she then was), allowed the forfeiture application and granted the orders sought in the application. 25.The appellants were dissatisfied with that judgment and preferred an appeal to this Court. The memorandum of appeal amended on 8th February 2022, comprises detailed multilevel numbered grounds, in clear breach of Rule 88(1) of the Rules of this Court which commands that grounds of appeal should be set out concisely without argument or narrative. By way of written submissions dated 4th April 2023, however, those grounds are condensed to five (5) issues for determination namely;a. Whether the respondent had locus standi to institute the proceedings for preservation orders and forfeiture orders against the appellants.b. Whether the High Court erred in holding that the funds in the appellants’ bank accounts were proceeds of crime hence liable to forfeiture.c. Whether the subject proceedings as against the 1st appellant contravened her right to fair trial and amounted to abuse of court process.d. Whether the appellants can be deprived of their property in the circumstances having regard to the rule against doubtful penalisation.e. Whether the proceedings against the 5th and 6th respondents being minors at the time were proper. 26.During the hearing of the appeal, learned counsel Messrs. Omwanza Ombati and Justus Omollo appeared for the appellants, while Mr. Mohamed Adow appeared for the respondent. 27.Addressing us on behalf of the appellants, Mr. Ombati submitted that under sections 82(1) and 90(1) of POCAMLA, the only person that is authorized to commence forfeiture proceedings or to apply for any preservation order is the Agency Director (ARA Director) and not ARA itself. He pointed out that section 2 of POCAMLA makes a clear distinction between the ARA and its Director and thus, ARA did not have locus standi to commence and continue the civil proceedings against the appellants herein for preservation orders and forfeiture orders as it did in Nairobi High Court ACEC Application No. 58 of 2018. In support of that argument, counsel relied on this Court’s decision in James Oyondi t/a Betoyo Contractors & another vs. Elroba Enterprises Limited & 8 others [2019] eKLR, where the Court addressed the competence of court proceedings which omitted the proper parties contemplated by express provisions of statute. 28.Further, the learned Judge was faulted for finding that sections 82 (1) and 90(1) of the POCAMLA mandated ARA to institute the contemplated proceedings. Citing the Supreme Court decision in Council Of Governors vs. Attorney General & 7 others [2019] eKLR, where the Court held that a court lacks jurisdiction to hear and determine a suit which has been commenced by a party that lacks locus standi, counsel argued that the High Court lacked the requisite jurisdiction to take cognizance of, hear and determine the application for preservation and forfeiture orders against the Appellants. 29On whether the High Court erred in holding that the funds in the appellants’ bank accounts were proceeds of crime hence liable to forfeiture, it was submitted that in determining whether the funds constituted proceeds of crime, the High Court ought to have ensured that the following thresholds were established on a balance of probabilities, that the property in question has been sufficiently established; that the acts which are alleged to have occurred constitute offence(s); and, that there exists a connection between the property and the alleged criminal offence(s) to ascertain that the property was derived or obtained from the criminal act. Counsel submitted that at paragraph 16 of her judgment, the learned satisfied the first threshold by identifying the property in respect of which the civil forfeiture proceedings were commenced under Part VIII of POCAMLA. As to the offence which was disclosed, he cited United Kingdom’s decision in The Director Of Assets Recovery Agency and others vs. Jeffrey David Green and others [2005] EWHC 3168, where Mr. Justice Sullivan pointed out matters which ought to be proved in civil recovery proceedings under United Kingdom’s Proceeds of Crimes Act, 2002. Mr. Ombati contended that prior to making forfeiture orders under section 92(1) of the Act, the High Court is obligated to make a finding on a balance of probabilities on whether the property concerned was derived directly or indirectly as a result of or in connection with an offence. He urged that there was no connection between the cash deposits and the alleged offence of theft of public funds amounting to Ksh.467,896,993 from the NYS. For this submission, counsel relied on the England and Wales Court of Appeal decision in ARA vs. Szepietowski [2007] EWCA Civ 766. 30.Mr. Ombati contended that the High Court grossly erred in law by imposing on the appellants the burden of proving the legitimacy of the sources of the funds in the subject accounts, when section 65(1) of the Act requires such proof to be done in criminal forfeiture proceedings, following a conviction. Counsel further referred to Jeffrey David Green (supra) where the court observed that, ‘a claim for civil recovery cannot be sustained solely upon the basis that a respondent has no identifiable lawful income to warrant his lifestyle.’ 31.On whether the subject proceedings contravened the 1st appellant’s right to fair trial and amounted to abuse of the court process, counsel asserted that although the learned Judge held that the civil forfeiture proceedings were against the property and not against the person, she proceeded to make dispositive findings and determinations on the 1st appellant’s criminal culpability for the offence of corruption, when the same was neither specifically pleaded nor advanced by any party to the proceedings. It was argued that the learned Judge’s making of a dispositive determination on the criminal culpability of the 1st appellant amounted to contravention of her right to a fair hearing which ultimately impacted the criminal charges pending against her in the subordinate courts. Further, both criminal forfeiture and civil forfeiture proceedings achieve the same outcome namely, to recover proceeds of crime, and therefore when ARA commenced civil forfeiture proceedings parallel to the criminal proceedings, it was tantamount to abuse of the court process. To fortify this argument, counsel cited the High Court decision in Republic vs. Sacco Societies Regulatory Authority Ex parte Joseph Kiprono Maiyo & 3 others [2017] eKLR, where the court held that allowing a party to have a double-pronged attack on the same decision, through both an appeal and a judicial review, amounted to an abuse of the court process. 32.Mr. Ombati urged that the appellants should not be deprived of their property in light of the rule against doubtful penalization. Reference was made to the rule as elucidated in Halsbury’s Laws of England Vol. 44(1) treatise at paragraph 1240 as follows;"… the true test is now considered to be whether a particular construction inflicts a detriment, or greater detriment on persons affected. A law that inflicts hardship or deprivation of any kind on a person is in essence penal. There are degrees of penalisation but the concept of detriment inflicted through the state’s coercive power pervades them all. The substance, not the form of the penalty is what matters. The law is concerned that a person should not be put in peril of any kind upon an ambiguity, hence the principle against doubtful penalisation.” 33.Citing the UK decision in Jeffrey David Green (supra), counsel submitted that the rule against doubtful penalization is applicable to civil recovery proceedings. He argued that the appellants ought not be penalized through deprivation of their property merely because they did not discharge the burden of proof of legitimacy of the sources of their funds, when such burden of proof is not expressly imposed upon them by the provisions of sections 81, 82, 90 and 92 of the Act. Moreover, there is no express or implied provision under Part VIII of the Act which obligated them to discharge the burden of proving legitimacy of their sources of funds failing which the cash deposits in their respective bank accounts would be deemed proceeds of crime and consequently property of the State. 34Next, counsel submitted on whether the proceedings against the 5th and 6th appellants, being minors, was proper. He faulted the learned Judge for failing to find that the proceedings against the minors were incompetent and a nullity since the minors were incapable of being sued in their own names pursuant to Order 32, rule 3 of the Civil Procedure Rules, 2010 and as held in JN (Minor suing through her mother and next friend RNM) vs. Francis Githinji & another [2019] eKLR.Counsel concluded his submissions by urging us to look at this Court’s decision in Aboo vs. Assets Recovery Agency; Ethics and Anti-Corruption Commission (Interested Party) [2023] KECA 1658 (KLR), an authority that he had come across the morning of the hearing. He also implored us to allow the appeal with costs. 35.In opposition to the appeal, Mr. Adow began by responding to the issue concerning the distinction between the Director of the ARA and the ARA itself as an agency. He submitted that under section 53 of the Act, the agency has the power to sue and be sued and thus, to him, the contention was a non-issue. Regarding the complaint that the 5th and 6th appellants were sued while they were minors, counsel faulted the appellants for not raising the issue before the High Court. He contended that the mandate of the ARA is to recover proceeds of crime or instruments of crime or assets used for the promotion of a crime and it did not matter in whose possession those assets were. Further it was evident from the record that the 1st appellant is the one who managed and operated the minors’ accounts on their behalf. 36.Mr. Adow urged that there are two regimes of recoveries namely, civil forfeiture proceedings under sections 90 and 92 of the Act and criminal forfeiture proceedings pursuant to section 65. He submitted that proceedings before the High Court which are the subject of this appeal, were of a civil nature and not criminal and thus section 65 did not apply. Counsel drew our attention to the fact that the decision in Aboo vs. Assets Recovery Agency; Ethics And Anti-corruption Commission (supra) which his counterpart had referred to, was pending before the Supreme Court on appeal. We note that the Supreme has since rendered itself in that matter. 37.Mr. Adow affirmed the impugned judgment urging that a court in a similar position as the court below, confronted with the facts and evidence tendered by ARA, cannot give a different decision. He contended that the appellant’s grounds of appeal have no merit and neither are they supported by any evidence to warrant the overturning of the impugned decision. Addressing the burden of proof under the Act, counsel submitted that once the ARA established on a balance of probabilities that the appellants had in their accounts funds for which they could not show a legitimate source, the burden shifted to them to satisfy the court that the funds were not proceeds of crime. To fortify this assertion, he relied on the Supreme Court of Jamaica decision in Assets Recovery Agency Vs. ROhan Antony Fisher & Others, Claim No. 2007 HCV 003259 as adopted in Assets Recovery Agency Vs. Joseph Wanjohi & 3 others ACEC Application No. 7 of 2019. 38.It was submitted that ARA only needs to make a prima facie case to satisfy the court that there is evidence which establishes ARA’s belief within the meaning of the Act, that the funds and assets sought to be forfeited are proceeds of crime or proceeds of unlawful activities. Counsel contended that the evidence placed before the learned Judge established to her satisfaction that ARA’s belief was true and that the funds were proceeds of crime under the Act. Moreover, the evidence showed that the appellants benefited from illegitimately sourced funds, directly or indirectly, and it was immaterial whether they participated in the acquisition of the illicit funds or whether a third party deposited the funds in their accounts. Counsel asserted that the appellants were unable to explain the source of funds in their accounts and all the evidence before court led to the conclusion that the funds were proceeds of crime. Mr. Adow urged that while Article 40 of the **Constitution provides for the right to property, subsection 6 thereof stipulates that the right does not extend to property which has been unlawfully acquired. To counsel, therefore, the funds in issue having been obtained illegally, they were not protected by Article 40 of the Constitution. To anchor this argument, he cited Assets Recovery Agency Vs. Joseph Wanjohi & 3 others (supra) and Nandjilalameck Vs. President Of Namibia 2012(1) NR 255(HC). 39.We inquired from counsel why a guardian ad litem was not appointed for the minors who were sued, as required by the Civil Procedure Rules and in view of the constitutional demand that the best interests of a child should always be borne in mind. Regardless counsel reiterated that the issue was never raised before the High Court for it to be examined. Moreover, that the 1st appellant had assumed responsibility of the minors through her statement and her replying affidavit, being that they were her children. 40.As a rejoinder to submissions made on behalf of the respondent, Mr. Omollo reiterated that pursuant to sections 2, 82 and 90 of the Act, it is the Director of the ARA who has the locus standi to commence proceedings for preservation and forfeiture, and therefore the proceedings before the High Court were a nullity. Counsel belabored that the aspect of proof of legitimacy of sources of income applies only in criminal forfeiture proceedings, and not in civil forfeiture proceedings and therefore the appellants did not bear the burden of demonstrating the legitimacy of their sources of income. Referring us to the supplementary record of appeal, counsel submitted that the charges that had been lodged against the 1st appellant in criminal cases at the Magistrate’s court, have since been withdrawn. 41.We inquired from Mr. Omollo whether under the Act it was possible to sue the Director of ARA. His answer was that the Director cannot be sued in his name but his office is one that has been clothed with the mandate to institute proceedings and therefore it can sue and be sued. Mr. Ombati added that according Order 32 rule 3 of the Civil Procedure Rules, it is the duty of the court to act in the interest of a minor. He contended that the issue had been raised before the court below but it was never addressed. 42.We have carefully read and considered the rival submissions in light of the entire record, in obedience to our duty as a first appellate court to proceed by way of re-hearing the case with a view to making our own inferences of fact and arriving at independent conclusions after a fresh and exhaustive re-appraisal and analysis of the entire evidence. See Selle Vs. Associated Motor Boat Company Ltd [1968] EA 123. 43.The appellants’ counsel raised a preliminary issue that goes to the competence of the proceedings herein and we see it fit to address that issue before delving into the merits of the appeal itself. Counsel asserted that pursuant to sections 82(1) and 90(1) of the POCAMLA, the only person who has the locus standi to institute forfeiture proceedings or to apply for any preservation order is the Agency Director (ARA Director) and not ARA itself. To the extent that the proceedings that are the subject of this appeal were lodged by ARA, it is contended that they were a nullity. In opposition to that submission, the respondent urges that under section 53 of the Act, the ARA has the power to sue and be sued. To evaluate this issue, we consider it appropriate to set out the relevant provisions of the law. 44.Section 82(1) of the Act provides;“The Agency Director may, by way of an ex parte application apply to the court for an order prohibiting any person, subject to such conditions and exceptions as may be specified in the order, from dealing in any manner with any property.” 45.Section 90(1) states;“If a preservation order is in force, the Agency Director may apply to the High Court for an order forfeiting to the Government all or any of the property that is subject to the preservation order.”The term “Agency” is distinctively defined under section 2 of the Act to mean the Assets Recovery Agency established under section 53(1), while the phrase “Agency Director” is defined as the Director of the Agency appointed under section 53(2). According to section 53(1), ARA is established with the following powers;“…a.suing and being sued;b.holding and alienating movable and immovable property;c.borrowing and lending money;d.doing and performing all such other acts or things as may be lawfully done by a body corporate.” 46.The point of contention herein is whether ARA had the capacity to institute the preservation and forfeiture proceedings and consequently, whether the proceedings at the High Court were competent. In Mangira & another Vs. Assets Recovery Agency; Ali Cars Limited (Interested Party) [2024] KECA 1488 (KLR), a similar argument was made that, it is the Agency Director who is empowered by Parliament to apply for preservation orders and under section 90 of the Act, the Agency Director may apply for forfeiture orders where valid preservation orders are in force and therefore the respondent (ARA) had no power, capacity or jurisdiction to seek preservation or forfeiture orders in any form, or under any procedure. In its decision, the Court overlooked the infraction on the basis that the Director of the ARA is the one who had signed the Originating Motion as well as the supporting affidavit, the only omission being that the ARA and not the Director was named as the applicant. The Court observed;“It is common ground that the Originating Motion was signed by Ms. Muthoni Kimani in her capacity as the then Director of the respondent. It is equally instructive that the Originating Motion was supported by the affidavit of the then Director of the respondent. Accordingly, the apparent formal infraction in the Originating Motion by naming the respondent as the applicant cannot render the forfeiture proceedings fatally defective.” 47.Just like the Court did in Mangira & another (supra), we think the infraction herein, of naming the ARA as the applicant as opposed to the Agency Director can be ignored. Besides, under section 53(5) of the Act, the Agency Director is permitted to delegate some of his functions to any member of staff. The provision states;“Anything which the Agency Director is authorised or required to do may be done by –a.a member of staff of the Agency, orb.a person providing services under arrangements made by the Agency Director, if authorised by the Agency Director (generally or specifically) for that purpose.” 48.It is thus our finding, notwithstanding Mr. Omollo’s tempting submissions to the contrary, that preservation proceedings and forfeiture proceedings can be lodged as well under the name of ARA as of the Agency Director. The many cases cited herein from this and other jurisdictions demonstrate the interchangeability of the two. 49The 1st appellant also faults the learned Judge for failing to find that the proceedings against the 5th and 6th appellant minors were incompetent and a nullity since the minors were incapable of being sued in their own names. The respondent contests that argument urging that it was evident from the record that the 1st appellant is the one who managed and operated the minors’ accounts on their behalf. A perusal of record at pages 183 and 254 of the record reveals that indeed the 1st appellant stated in her statement that she was the one who opened and operated the accounts of the 5th and 6th respondent minors. Essentially therefore, the funds in the said accounts were in her possession and control. In the replying affidavit found at Page 199 of the record, the 1st appellant also confirms that she is the biological parent to the 4th, 5th and 6th appellants and that she was duly authorized to respond to the forfeiture application on her own behalf and that of the rest of the appellants. In the circumstances, we find that the minors were ably represented, by the very person who was in possession of the funds in question, the 1st appellant. We accordingly find no merit in the complaint. To hold otherwise would be an exercise in impermissible hair-splitting. 50.Turning to the merits of the case, the central question in this appeal is whether the High Court erred in holding that the funds in the appellants’ bank accounts were proceeds of crime hence liable to forfeiture. Section 2 of POCAMLA defines the term ‘proceeds of crime’ to mean;“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.” 51.Section 92(1) of the same statute stipulates 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—a.has been used or is intended for use in the commission of an offence; orb.is proceeds of crime.” 52.It is the appellants’ contention that prior to making forfeiture orders under section 92(1) of the Act, the High Court is required to make a finding on a balance of probabilities on whether the property in issue was derived directly or indirectly as a result of or in connection with an offence. The appellants submit that there was no connection between the concerned cash deposits in their bank accounts and the alleged offence of theft of public funds amounting to Ksh.467,896,993 from NYS. Our attention was drawn to the fact that the charges that had been lodged against the 1st appellant in criminal cases at the Magistrate’s court, had since been withdrawn. In its recent decision in Ethics and Anti-Corruption Commission & another Vs. Aboo [2026] KESC 44 (KLR),the Supreme Court affirmed the proposition of the majority of this Court in the eponymous decision appealed from therein that ARA has to establish a nexus between the subject matter of forfeiture and a crime or its intended commission when seeking an order of forfeiture. The court, however added, faithfully and significantly, that the fact that the person in possession of the property in question is charged but eventually acquitted, does not necessarily insulate the property from forfeiture. The apex court rendered itself as follows;“52. […] The incidence of crime remains central to such forfeiture proceedings. The title of the statute, Proceeds of Crime and Money Laundering Act, confirms this statement. The property in question, in terms of Section 2 aforesaid must be connected to some criminal offence or constitute proceeds of crime. In this regard, the property in question must have been used or intended for use in the commission of a crime. By the same token, the property is to be regarded as a proceed of crime if it has been realized or derived directly or indirectly as a result of or in connection with an offence. It is therefore a requirement that the ARA has to establish a nexus between the subject matter of forfeiture and a crime or its intended commission when seeking an order of forfeiture. However, should the person in possession of the property in question be charged with a specific offence in a court of law, the fact that the accused is eventually acquitted of the same, does not necessarily insulate the property from forfeiture. By the same token, even where the investigation does not yield evidence sufficient enough to sustain a criminal charge, the property in question would still be subject to forfeiture proceedings under Section 90 of POCAMLA.” 53.Applying the foregoing fresh and binding authority and while we are cognizant that the criminal charges against the 1st appellant in Anti-Corruption Case Nos. 8, 10, and 11 of 2018 were withdrawn by the prosecution, we must find and hold that such outcome did not have a bearing on the forfeiture proceedings. We are of the view that so long as there existed a plausible bona fide criminal charge, the outcome of the criminal proceedings was inconsequential. That reasoning is fortified by section 92(4) of the Act which expressly delinks civil forfeiture proceedings from criminal proceedings as follows;“The validity of an order under subsection (1) is not affected by the outcome of criminal proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the property concerned is in some way associated.” 54.As to whether the ARA proved the nexus of crime and the subject matter of forfeiture, it is common ground that the burden of proof to the discharged by ARA on which the onus to prove that nexus lies, is on a balance of probabilities. The Supreme Court in Ethics and Anti-corruption Commission & ANOTHER Vs. Aboo (supra) was categorical that it behooves the person who alleges to produce the necessary evidence in the first place and thereafter, the evidential burden shifts. Said court;“67. The question of whether and at what point, the evidentiary burden shifts in forfeiture proceedings, is not a novel legal issue whose parameters lie beyond existing statutory provisions and established case law. The general principle in civil proceedings is that whoever asserts, must prove. Thus, the burden of proof lies on the person alleging the existence of a set of facts. If the person adduces evidence to the satisfaction of a court on a balance of probabilities, that such a set of facts exists, the burden of proving otherwise shifts to the person against whom the allegation is made.” 55.The appellants contend that the High Court grossly erred in law by imposing on them the burden of proving the legitimacy of the sources of the funds in the subject accounts, when section 65(1) of the Act requires such proof to be done in criminal forfeiture proceedings, following a conviction. The respondent, however, argues that once it established on a balance of probabilities that the appellants had in their accounts funds for which they could not show a legitimate source, the burden shifted to them to satisfy the court that the funds were not proceeds of crime. It is submitted that the appellants were unable to satisfactorily explain the source of funds in their accounts and all the evidence before court led to the conclusion that the funds were proceeds of crime. 56.The question that then arises is whether ARA established on a balance of probabilities that the funds in the appellants’ accounts were proceeds of crime. The record shows that the forfeiture proceedings were triggered by the arrest and arraignment in court on 29th May 2018 of NYS Staff and Suppliers, including the 1st appellant, who were charged with various offences including abuse of office and conspiracy to commit a felony. Investigations conducted by the DCI into the theft and fraud of public funds amounting to Ksh.467,896,993 from NYS revealed massive fraud and embezzlement of Public Service funds, perpetuated by public officials and private persons some of whom were those charged with various offences in Nairobi Anti-Corruption Court Chief Magistrates Court (Milimani) Criminal Case No. ACC. 8, 10, 12, 13, 16 and 17 of 2018. It was averred that investigations established that the funds that were stolen were fraudulently transferred from NYS to various suppliers’ bank accounts who fictitiously supplied goods and services that were not rendered to NYS. On 26th April 2018, ARA received information that there were funds at Equity Bank, Community Branch, Nairobi, which funds were suspected to be proceeds of crime; and, the accounts were operated by the 1st appellant on behalf of her Companies, Business entities and on behalf of her children. The respondent further deposed that the said bank accounts received suspicious huge cash deposits in US dollars and Kenya Shillings and that there were reasonable grounds to believe that the cash in question is part of the funds stolen from the NYS. The accounts in question and the alleged suspicious deposits are listed herein above. 57.The record shows that on 24th October 2018, the 1st appellant was summoned to appear before the DCI headquarters on 25th October 2018 in order to record a statement. The 1st appellant responded to the summons and recorded a statement which appears at pages 251 to 257 of the record. We note that in the said statement the 1st appellant admitted that she opened and operated the subject accounts. She claimed that the cash deposits in the said accounts were funds that she collected from the sale of produce from their farm and from her husband’s business in South Sudan. On being questioned about where she sells the farm produce, the 1st appellant claimed that she sells the produce in Siaya and Kisumu counties, but carries the money all the way to Nairobi and keeps it in the safe or banks it. 58.Further, in reply to the forfeiture application, vide an affidavit sworn on 5th April 2019, found at pages 199 to 211 of volume 2 of the record, the 1st appellant explained at paragraph 29 of that affidavit, what to her were legitimate sources of the funds in issue. She stated that her farm in Siaya County purchases and resells fruits and other products for profit; her husband, one Dick Oneko, engages in international consultancy services in the energy and natural resources sector where he earns considerable income through commissions and part of the income is channeled into the subject bank accounts; and, she derives salary from employment as a public servant, portions of which were applied as savings and were also invested in various income generating activities. 59.In rebuttal to the 1st appellant’s averments as to the sources of the funds in the subject accounts, the respondent’s Investigations Officer, No. 62x52 CPL Isaac Nakitare, averred through an affidavit sworn on 27th May 2019, that accompanied with his colleague they visited Uyoma in Rarieda District to confirm the existence of the alleged farm owned by the 1st appellant and found that none existed. They also found that no farming activities existed on the said land, as alleged, save for one small-sized green house which the 1st appellant’s brother-in-law informed them, belonged to him. It was also averred that most of the receipts that the 1st appellant produced as evidence of sale of farm produce, fell outside the years 2016, 2017 and 2018, the period when the funds in issue were stolen from the coffers of NYS. In addition, even though the authenticity of those receipts could not be ascertained, the total amount in the receipts that fell within the period when the suspicious deposits were made was approximately Ksh.390,000, an amount that is far below the funds in issue. 60.We have perused the said receipts found at pages 258 to 279 and 321 to 377 of the record and note that while some are dated the year 2013 and earlier, others are undated, while others only show the day and month without the year. Moreover, as rightly submitted by the respondent, the amounts indicated in those receipts are insignificant compared to the huge cash deposits that would be made in the subject accounts in a single day. 61.ARA averred, and without any controvert, that they received the income tax returns statements of the 1st appellant for the years 2015, 2016, 2017 and 2018 from the Kenya Revenue Authority, and none of them disclosed any income from farming business. We think, that, logically, if indeed the 1st appellant was operating a farming business of the scale and magnitude yielding income in the sum of Ksh.500,000 and above, as demonstrated by the cash deposits, then it would have been apparent from the evidence furnished, and in particular, there would have been evidence of compliance with the legal requirement of filing tax returns. We, in the circumstances, do not find it plausible that the significant cash deposits were derived from the alleged farming business, which we respectfully think were non-existent or a mere phantom. Nor are we in the least persuaded by the submission that the 1st appellant that she derived some of the monies from her husband who offered consultancy services under the company name, Nile International Limited. It was averred without controvert, that investigations revealed that no single cash deposit was made to that Company’s account in the years 2016, 2017 and 2018, which was the period under consideration. 62.We find it particularly alarming that according to the record, in a single day, large cash deposits would be made in multiple accounts. For instance, on 24th August 2017, Ksh.900,000 was deposited in Account Number 782xxxxx07, Ksh.900,000 was deposited in Account Number 522xxxxx01 and Ksh.900,000 was deposited twice in Account Number 080xxxxx00. The following day, on 25th August 2017, a deposit of USD 10,000 was made to USD Account No. 018xxxxxxxx83, Ksh.900,000 was deposited in Account Number 018xxxxxxxx04, and another Ksh.900,000 was deposited in Account number 018xxxxxxxx67. This trend of multiple cash deposits in one day and/or month is evident across the accounts, and we do not think that the 1st appellant gave a credible explanation as to the sources of the funds. Nothing comes out of nothing and our evaluation of the evidence in this matter leads us to the unerring and inescapable conclusion that ARA established on a balance of probabilities that the funds in the subject accounts were proceeds of crime. 63.Ultimately, and notwithstanding counsel’s gallant efforts, we find this appeal to be without merit and we dismiss it with costs.Order accordingly. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026.P. O. KIAGE………………………………JUDGE OF APPEALL. ACHODE……………………………….JUDGE OF APPEALA. O. MUCHELULE………..……….……………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR