ARINSA CaseBook 2020

judgments by Lesotho

More Zambian Forfeiture cases

Circumstances will show that some crime predicated money laundering. 

The Ethics and Anti-Corruption Commission instituted civil proceedings against the defendants seeking forfeiture of unexplained assets in form of cash, motor vehicles and immovable properties worth to $ 1,158,615.42. The 1st defendant was a senior Assistant Accountant General at the Ministry of Interior and Coordination of National Government. He incorporated three (3) corporate vehicles, 3rd-5th defendants with his wife, 2nd defendant in order to conceal and/or launder the money that he was embezzling from the Ministry and to register the motor vehicles and immovable properties that he acquired using the proceeds.

After a full trial, the Court found that the money that was being embezzled by the 1st defendant was being successfully banked in various bank accounts on a daily basis by the 2nd defendant. The Court also found that through the 3rd-5th defendants, the 1st and 2nd defendants purchased properties worth $ 536,000 and a motor vehicle worth $ 6,240using the some of the banked money and that the sum of $ 85,730 that was found in the 1st defendants office and residence after an official search constituted unexplained assets. The court thus ordered forfeiture of a total sum of $ 1,120,000.

The Asset Recovery Agency (ARA) filed an application against the respondents herein by way of Originating Summons under sections 81, 90 and 92 of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA) as read with Order 51 of the Civil
Procedure Rules, 2010 seeking for Forfeiture orders of cash, motor vehicles and immovable properties acquired using proceeds obtained from the illegitimate trade in wildlife trophies, narcotic drugs and illegal substances, which proceeds had been received in the various bank accounts set out in the forfeiture application by ARA and which were suspected to be proceeds of crime contrary to the provisions of the Wildlife Conservation and
Management Act, 2013, the Narcotic Drugs and Psychotropic Control Act No. 4 of
1994 and the Proceeds of Crime and Anti-Money Laundering Act 2009 (POCAMLA).

After hearing the evidence presented by both ARA and the respondents in rebuttal, the Court found that the cash and assets were proceeds of crime and ordered forfeiture of the same to the state. 

The Kenya Anti-Corruption Commission instituted this suit to recover over $ 280,000 and a motor vehicle from the defendants, who were public officers working in different ministries and institutions. The 1st-3rd defendant who were officials of the defunct Makuyu County Council hatched a fraudulent scheme with the 6th defendant who was a public officer at the National Treasury to divert funds that were meant for Makuyu County Council for personal use. The 4th, 5th, 7th, 8th-10th defendant were used as conduits to conceal the embezzled funds.

During the hearing, the Anti-Corruption Commission tabled evidence that proved how money fraudulently moved from the Central Bank of Kenya into a fake bank account in the name of Makuyu County Council then withdrawn disguised as payments for services rendered to the Council and flowing back to the masterminds of the scheme, 1st-3rd defendant and 6th defendant. 

After a full trial, the Court held that the Anti-Corruption Commission had proved that there was a fraudulent scheme that had been hatched by the 1st-3rd defendants and 6th defendant to embezzle public funds by diversifying the funds for personal use; all the defendants benefitted from the loot. The Court therefore ordered the defendants to pay the state $ 280,000 that was embezzled and the 7th defendant surrenders the motor vehicle that had been purchased using the proceeds and registered in her name. 

The Kenya Anti- Corruption Commission (now Ethics and Anti-Corruption Commission) instituted civil proceedings against one Stanley Mombo Amuti, who was a senior Finance Officer at the Nairobi Water and Sewerage Company Ltd seeking forfeiture of unexplained assets, in form of cash and immovable properties under section 55 of the Anti-Corruption and Economic Crimes Act (ACECA). EACC sought for forfeiture of the sum of $ 1,409,760.20 being the cumulative bank deposits made by the appellant between September 2007 and 30th June 2008 and $ 325,000 being the value of the immovable properties. Upon hearing the Originating Summons, the learned judge found that the appellant was in possession of unexplained assets valued $ 412,080 and ordered for forfeiture; this judgement resulted to this appeal.

The Court of Appeal after hearing the arguments by both parties found that the appeal had no merit, upheld the judgement of the trial court for forfeiture of $ 412,080 to the state having been found to be unexplained assets under the provisions of section 55 of ACECA. 

The Kenya Anti-Corruption Commission (now Ethics and Anti-Corruption Commission) received a complaint that over 100 City Council of Nairobi houses (now County of Nairobi) had been illegally allocated to private individuals without following due process in the disposal of public property contrary to the Local Government Act, Government Land Act and the Registration of Titles Act (all repealed). About 47 persons surrendered their titles back to the Government upon demand; the Anti-Corruption Commission instituted suits for the recovery of the rest of the houses. The current case was used as the lead file for the 48 suits that were instituted by the Anti-Corruption Commission. Evidence was produced by the Anti-Corruption Commission to show that the houses were illegally disposed off to private persons. 

The Court, after analysing the evidence held that the process of disposal of the county owned houses was fundamentally flawed as the requisite consents from the Minister for Local Government at the time and the Commissioner for Lands were not obtained contrary to the Local Government Act. The Council at the time did not pass a resolution to dispose of Council property thus could not in law pass any interest to another person. The alleged sale of the public houses was also not done by way of public auction contrary to the Government Land Act (now repealed). The Court thus nullified the alleged sale and directed the Registrar of titles to cancel the title that was issued.

Lesotho Judgments

Namibia

Applications and motions- Urgent application- sections 51, 52 and 58 of the Prevention of organised Crime Act 29 of 2004-variation of preservation of property order in terms of section 103 of the Rules of Court-