Assets Recovery Agency v Ache & another; Mbinda & 3 others (Interested Parties) [2024] KEHC 2381 (KLR) | Proceeds Of Crime | Esheria

Assets Recovery Agency v Ache & another; Mbinda & 3 others (Interested Parties) [2024] KEHC 2381 (KLR)

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Assets Recovery Agency v Ache & another; Mbinda & 3 others (Interested Parties) (Anti-Corruption and Economic Crimes Civil Suit E010 of 2022) [2024] KEHC 2381 (KLR) (Anti-Corruption and Economic Crimes) (7 March 2024) (Judgment)

Neutral citation: [2024] KEHC 2381 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Civil Suit E010 of 2022

EN Maina, J

March 7, 2024

Between

Assets Recovery Agency

Applicant

and

Dida Jarso Ache

1st Respondent

Yusuf Halkano Sokono

2nd Respondent

and

Grace Anyona Mbinda

Interested Party

Jarso Boru Dida

Interested Party

Florence Nthenya Kimeu

Interested Party

Samwel Nyabwenge Maobe

Interested Party

Judgment

1. The Applicant filed the Originating Motion herein dated 8th April 2022 seeking forfeiture orders in relation to motor vehicle KCU 348H Toyota Land Cruiser registered in the name of the 1st Interested Party, motor vehicle KCW 835N Mercedes Benz Actros registered in the name of the 2nd Interested Party, motor vehicle KCS 906 Toyota Ractis registered in the name of the 3rd Interested Party and motor vehicle KCN Toyota Probox registered in the name of the 4th Interested Party.

2. The gravamen of the application is that the 1st Respondent is the beneficial owner of all the above vehicles and that there are reasonable grounds to believe that the same were acquired using proceeds of crime derived directly or indirectly through the illicit trade of drug trafficking.

3. It is the Applicant’s contention that following information it received on 29th May 2020, the 1st and 2nd Respondents were intercepted and arrested as they were travelling along the Sagana – Nairobi Highway in motor vehicle KCU 348H Toyota Land Cruiser Pick-up. The motor vehicle was being driven by the 2nd Respondent while the 1st Respondent was a passenger; that the motor vehicle was ferrying ten sacks and one polythene bag of dry greenish plant material suspected to be cannabis; that a further search revealed another eight bales of dry greenish material also suspected to be narcotic drugs; That when samples of the material found were submitted to the government chemist, the same were analysed and found to be cannabis – a narcotic drug; that on 6th June 2020 the Respondents were arraigned before the Chief Magistrate’s court at the JKIA (Jomo Kenyatta International Airport) for the offence of trafficking narcotic drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act. The case is still pending.

4. Further, it is contended that the motor vehicle Regn. No. KCU 348H which was intercepted with the illegal material was purchased from one Musa Yusuf Mdose by the 1st Respondent through the 2nd Interested Party; that the said Musa Yusuf Mdose had in turn purchased it from the 1st Interested Party in whose name it is still registered.

5. That the 2nd Interested Party is registered as the owner of motor vehicle KCW 835N although it admittedly belongs to the 1st Respondent; that motor vehicle KCS 906G registered in the name of the 3rd Interested Party while motor vehicle KCN 112H is registered in the name of the 4th Interested Party although they are all beneficially owned by the 1st Respondent.

6. It is contended that there are reasonable grounds to believe that all the above stated vehicles were purchased with monies derived directly or indirectly through suspected drug trafficking.

7. It is also the Applicant’s case that the 1st Respondent admitted to having been involved in drug trafficking for three years prior to his arrest and to being the beneficial owner of all the above stated vehicles. It is urged therefore that this court forfeit the vehicles to the government.

8. Annexed to the Replying Affidavit are a search certificate indicating date of search as 29th May 2020 and motor vehicle searched as Regn. No. KCU 348H, an inventory of the items found and seized, a Notice of Seizure, a notice of intention to enter records in evidence, a certificate of weighing of the plant material, a bond and bail bond form duly completed; a document evidencing the movement of the exhibit from Makuyu Police Station to DCI (Directorate of Criminal Investigations) Headquarters in Nairobi; a report of the officer who photographed the motor vehicle and its contents; a report of the Government analyst confirming the material found in the vehicle was cannabis sativa, the charge sheet of the case at the Chief Magistrates Court at JKIA, NTSA motor vehicle copy of records detailing the particulars and ownership of the motor vehicles and handwritten and typed statements of several persons including the Law Enforcement Officers who intercepted the vehicle and the Interested Parties and the 1st and 2nd Respondents.

9. On 5th June 2023 the Applicant filed a notice of withdrawal of the case against the 2nd Respondent. Subsequently, on 31st October 2023 the Applicant filed another Notice of Withdrawal of the case against the 3rd and 4th Interested Parties. Thereafter on 2nd November 2023 it formally withdrew the case against the 2nd Respondent and the 3rd and 4th Interested Parties which in effect removed motor vehicles KCS 906G and KCN 112H from the proceedings. In the premises the case is now only against the 1st Respondent and the 1st and 2nd Interested Parties and motor vehicles KCU 348H and KCW 835N.

The 1st Respondent’s case. 10. In a replying affidavit sworn by himself on 29th May 2023 the 1st Respondent disputed that he is either the real or beneficial owner of motor vehicles KCU 348H Land cruiser, KCS 906G Toyota Ractis and KCN 112H Toyota Probox. He also deposed that the Applicant has not, in any event, proferred any firm and cogent evidence as to warrant the forfeiture of the motor vehicles for the following reasons:-“4(i) The instant Application as filed is premature, misplaced and highly prejudicial to me as the entire Application and the attendant prayers are pegged on a criminal case that is currently active before court and whose determination has not been delivered so far. As such, I am advised by my Advocates on record which advise I verily believe to be true that the allegations levelled against me in the criminal case remains mere allegations until a determination is reached in the criminal case. As such, the reliance on the facts in the criminal case to institute the instant Application by the Applicant is unconstitutional as it infringes my right to innocence until the contrary is proven and right to a fair hearing by dint of Article 50 of the Constitution of Kenya, 2010. ii.Further and in addition to (i) above, the evidence relied upon by the Applicant all emanate from the criminal case I have alluded to hereabove that is still pending in court and awaiting determination. As such, it therefore goes without saying that the evidentiary value of the evidence that the Applicant has proffered in the instant case so far has not been given credence by the finding of the criminal case as to warrant reliance on the same by the Applicant. Any reliance on such evidence, therefore, is not only unconstitutional and prejudicial but also amounts to the abuse of judicial authority.ii.Apart from the criminal case extracts, the Applicant has not placed before this Honourable Court any evidentiary materials to the effect that the motor vehicles the subject of this Application are either proceeds of crime, proceeds of money laundering, or are intended to commission a crime as alleged. The Applicant seems to contend that it is acting on mere suspicions. As a result. bereft of cogent and firm evidence in support of the suspicions, I believe that the Applicant has not met the legal threshold for the grant of the Forfeiture Orders sought in the Application.ii.This being a civil matter, I am advised by my Advocates on record which advice I verity believe to be true that the onus of proving the allegations levelled against me rests on the Applicant and that the same should be discharged on a balance of probabilities by use of cogent and relevant evidence. In this regard, the Applicant is by law required to demonstrate, by use of evidence, that the motor vehicles were purchased from proceeds of crime to warrant the grant of the forfeiture orders sought. Bereft of any evidence to this effect, this Honourable Court cannot proceed to issue the orders sought by the Applicant based on mere conjecture and unsubstantiated suspicions.ii.The Applicant is bestowed under the law with capacity to carry out investigations in conjunction with other agencies, in order to unearth and consequently extract evidence for presentation to this Honourable Court in support of the allegations preferred against me. In this regard, I wish to state that the Applicant ought to know the case it is alluding to is still pending in Court and that my right to be presumed innocent until the contrary is proven still subsists and cannot be interfered with by pre-empting inconclusive, prejudicial, subjective and misguided findings.”

11. He deposes that mere suspicion is not enough, but that the Applicant must adduce cogent evidence to support its allegations. He deposes that he is a licenced stock and skin trader and has been such a trader for forty years and that from that business he has accumulated enough wealth to sustain himself and his family; that there can therefore be no ground to infer any criminal conduct on his part as far as possession of the motor vehicles is concerned.

12. In an unexpected turn of events, at paragraphs 10 and 11 of the affidavit, he deposes that the impugned motor vehicles rightfully and legitimately belong to him and any interruption of that ownership without plausible evidence, such as is contemplated by the Applicant, is a violation of his right to property as guaranteed by Article 40 of the Constitution; that the fact that he purchased the vehicles is not in dispute and further that there is no evidence that they are proceeds of crime.

13. Further he denies any dealings in narcotics. He contends that whether he has done so is a fact in contention in the yet to be concluded criminal case and any reliance on such evidence is therefore premature; that the preservation order granted is based on conjecture and misleading evidence and it has significantly affected his business and threatened his and his family’s livelihood and the vehicles.

14. It is also the 1st Respondent’s case that should this court forfeit the vehicles it will give credence and undeserved legitimacy to the applicant to continue to maliciously advance allegations and falsely accusing Kenyans with a view of frustrating their fortunes even where there are no plausible grounds to do so. He disputes that he admitted involvement in the bhang trade and further contends that the Applicant maliciously wants to acquire his motor vehicle through abuse of court process yet he is entitled to equal protection of the law as provided in Article 27(1) of the Constitution. He concludes by urging this court to dismiss the Applicant’s case and to uphold his right to property and consequently grant him access to the vehicles.

Case of the 1st Interested Party 15. The 1st Interested Party’s case is that she sold the motor vehicle KCU 348 H to Musa Yusuf Mdose on 27th December 2019 at a consideration of Kshs.3,035,000/-; that she then relinquished all her rights to the vehicle and handed over its possession and documents to the purchaser; that he however frustrated all her efforts to transfer it into his name by constantly alleging he was out of the country and hence unavailable and that she later learnt that he had sold the vehicle to the 2nd Respondent. She contended therefore that she has no interest whatsoever in the motor vehicle KCU 348H. She annexed a sale agreement, a statement of account and a statement she recorded at the DCI to her Replying Affidavit.

Case of the 2nd Interested Party 16. The 2nd Interested Party’s replying affidavit sworn on 29th May 2024 is confined to ownership of motor vehicle KCW 385N Mercedes Benz Actros which he contends he uses to run a transport business. He deposes that there is no evidence whatsoever linking him with the alleged criminal case; that the authenticity of the materials relied upon by the Applicant is yet to be established and hence the same cannot be used as a basis of forfeiting his rightfully owned motor vehicle and this court should uphold his ownership of the vehicle and release it to him. He has annexed a Memorandum of Transport Agreement between him and Alternative Logistics Solutions Ltd as proof of the companies he does business with.

Submissions 17. This court received written submission from learned Counsel for the Applicant and from learned Counsel for the 1st and 2nd Interested party.

18. I have carefully considered the affidavit evidence, the annextures thereto and the rival submissions of learned Counsel for the parties, and the cases cited thereat. The Applicant having withdrawn the case against the 2nd Respondent and the 3rd and 4th Interested Parties the prayers that remain for consideration are prayers 1, 2, 5 and 6 to wit:“(1)That this Honourable court be pleased to issue an order declaring that motor vehicle registration number KCU 348H Toyota Land cruiser, registered in the name of Grace Anyona Mbinda is a proceed of crime and therefore liable for forfeiture to the Government of Kenya.(2)That this Honourable court be pleased to issue an order declaring that motor vehicle registration number KCW 835N Mercedes Benz Actros, registered in the name of JARSO BORU DIDA is a proceed of crime and therefore liable for forfeiture to the Government of Kenya......(5)That this Honourable court be pleased to issue an order declaring that motor vehicle registration number KCU 348H Toyota Land cruiser, registered in the name of GRACE ANYONA MBINDA is a proceed of crime and therefore liable for forfeiture to the Government of Kenya.6. That this Honourable court be pleased to issue an order declaring that motor vehicle registration number KCW 835N Mercedes Benz Actros, registered in the name of JARSO BORU DIDA be forfeited to the Government of Kenya. ”

Issues for determination 19. The issues that arise for determination therefore are1. Whether the motor vehicles subject of the above prayers are proceeds of crime liable for forfeiture to the Government and whether they ought to be forfeited.2. The issue of costs.

Analysis and Determination: Issue (i) whether the motor vehicles subject of the above prayers are proceeds of crime liable for forfeiture to the Government and whether they ought to be forfeited. 20. On this issue the Applicant avers that the 1st Respondent and the 2nd Interested Party are father and son; that motor vehicle KCU 348H belongs to the 2nd Interested Party; that on 29th May 2020 the motor vehicle was intercepted by law enforcement officers at a place called Makuyu along the Sagana – Nairobi Road while conveying plant material suspected to be bhang and that when a sample of the material was taken to the government chemist it was analysed and found to be cannabis which is a prohibited plant material. The Applicant avers that the 1st Respondent was in fact in the vehicle when it was intercepted and that he together with the driver (2nd Respondent) were subsequently charged with the offence of trafficking narcotic drugs. The Applicant contends that thereafter the 1st Respondent admitted to have been involved in drug trafficking for three years prior to his arrest and also to being the owner of motor vehicle KCW 835N. That there are reasonable grounds to believe the two motor vehicles were acquired with the proceeds of the illegal trade hence the two vehicles are proceeds of crime and liable to be forfeited to the State.

21. Learned Counsel for the Applicant submitted that Article 40(6) of the Constitution does not extend the right to property to any property that was unlawfully acquired; that the Applicant need only prove its case on a balance of probabilities; that the Applicant need not prove a specific criminal offence as civil forfeiture proceedings are not a criminal prosecution against the Respondent but are intended to determine the criminal origins of the property. Counsel submitted that the 1st Respondent having been charged with trafficking in narcotic drugs on two separate occasions and having admitted that he was engaged in the illicit business underscores his and the 2nd Interested Party’s criminal lifestyle. Counsel asserted that failure to complete the registration of motor vehicle KCU 348H and the registration of motor vehicle KCW 385N in the name of the 2nd Interested Party was but an attempt to conceal and disguise the nature, source, disposition and movement of the income from the illegal trade. Counsel stated that the 1st Respondent and 2nd Interested Party were engaged in a money laundering scheme. Counsel contended that the 2nd Interested Party did not have proof of how he acquired the motor vehicle KCW 835N and in the absence of a legitimate source of the funds which acquired the vehicle then the same should be forfeited together with motor vehicle KCU 348H. Counsel argued that the Applicant has proved its case on a balance of probabilities.

22. For their part learned Counsel for the 1st Respondent and 2nd Interested Party begun by pointing out that the law requires that he who alleges bears the burden of proving the allegations. Counsel submitted that the said maxim is meant to protect vulnerable individuals or entities from frivolous allegations that if not checked have the net effect of prejudicing innocent parties. Counsel submitted therefore that he onus is upon the Applicant to prove on a balance of probabilities that the two vehicles are proceeds of crime. He argued that in this case there is no evidence to support the Applicant’s allegations.

23. Counsel contended that there is nothing, direct or indirect, to link or connect the 1st and 2nd Respondent or the 2nd Interested Party’s vehicles and any offence. Counsel submitted that the 1st Respondent and the 2nd Interested Party have ably demonstrated how the vehicles were acquired and have provided invoices, receipts, business licences and other documents all of which have not been controverted.

24. Counsel also submitted that Section 82 of the Proceeds of Crime and Anti-Money Laundering Act envisages that, such an application as this, is premised on reasonable grounds but not on generalized allegations and hence this application should be dismissed. Counsel contended that whereas the threshold of proof is relatively low (balance of probabilities), the law does not allow for unreasonable suspicion or trivialities. Counsel pointed out that the law jealously protects property that is lawfully acquired nor less than it abhors property that is acquired unlawfully and that the orders sought amount to a violation of the 1st Respondent and 2nd Interested Party’s right to own property. Counsel asserted that it is important to note that the application is entirely pegged on a criminal case which is yet to be determined; that Article 50(2) (a) guarantees the right to a fair hearing and right to be presumed innocent until the contrary is proven and therefore without evidence of a conviction or other evidence of illegal activity then there is no basis to warrant the application being granted. Counsel contended that reliance by the Applicant on the criminal case would be a violation of the 1st Respondent’s and 2nd Interested Party’s right to be presumed innocent. Counsel urged this court to find that the Applicant has not met the threshold and dismiss the application.

25. As correctly submitted by Counsel for the Respondent in this case the onus of proof lies upon the Applicant. However, it is now settled that once that legal burden is discharged the evidential burden shifts to the Respondent to prove the legitimate source of the property. This is the holding in the case of Director of Assets Recovery & Others [2005] EWHC which has been cited with approval in several cases including the recent Court of Appeal case of Pamela Aboo v Assets Recovery Agency and Anti-Corruption Commission, Civil Appeal No. 452 of 2018 (unreported) where Warsame JA, stated:-“37. It is elementary that he who alleges a fact must prove the existence of that fact. To that end, Part 1 of Chapter IV (Sections 107 to 119) of the Evidence Act is dedicated to burden of proof. According to Section 107 (2);

“When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 38. The legal burden lies only on one of the parties and does not shift to the other party throughout the length and breadth of the trial. Section 108 explains that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

39. On the other hand, evidential burden refers to the obligation on a party to adduce sufficient evidence of a particular contested fact in order to justify a decision on that fact in his favour. It is also elementary that in civil cases, the standard of proof required is on a balance of probabilities or on preponderance of evidence. A litigant who fails to discharge the evidential burden in a case carries the risk, he may lose the whole or some part of the case. Furthermore, unlike the legal burden, the evidential burden is not static: it keeps shifting between the parties throughout the course of the trial.”

26. Similarly, although his was a dissenting opinion Mativo JA stated: -“33. Once the Asset Recovery Agency satisfies the court on a balance of probabilities that the property is suspected to be proceeds of corruption, the reverse burden of proof applies. The onus of proof shifts to the respondent who must rebut the presumption that the property in question was acquired unlawfully. The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the Asset Recovery Agency, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence. (See the Court of Appeal decision in Mbuthia Macharia vs Annah Mutua Ndwiga & Another Civil Appeal No. 297 of 2015 [2017] eKLR). As was held by the Supreme Court in Raila Amolo Odinga & Another vs IEBC & 2 Others [2017] eKLR the evidential burden of proof may shift to the defendant depending on the nature and effect of evidence adduced by the claimant.”

27. Counsel have also correctly submitted that the standard of proof is on a balance of probabilities and that cogent evidence must be adduced to connect the property sought to be forfeited to an offence or unlawful activity. It is however instructive that the Applicant is not required to prove a specific offence as indeed Section 92(4) of the POCAMLA provides that civil forfeiture is not tied to the outcome of criminal proceedings – see also the case of Prophet v National Director of Public Prosecutions [2006] (2) SACR 525 where the court stated:-“(58)Civil forfeiture provides a unique remedy used as a measure to combat organised crime. It rests on the legal fiction that the property and not the owner has contravened the law. It does not require a conviction or even a criminal charge against the owner. This kind of forfeiture is in theory seen as remedial and not punitive. The general approach to forfeiture once the threshold of establishing that the property is an instrumentality of an offence has been met is to embark upon a proportionality enquiry – weighing the severity of the interference with individual rights to property against the extent to which the property was used for the purposes of the commission of the offence, bearing in mind the nature of the offence.”

28. In Pamela Aboo v Assets Recovery Agency and Kenya Anti-Corruption Commission (Supra) Warsame JA expressed himself as follows on this issue.“41. I must underscore that civil forfeiture proceedings may be brought against any person who holds tainted property connected to an offence irrespective of whether or not that person has committed the unlawful conduct or not. The subject of the proceedings is the property or proceeds and how it was derived or realized from illegal conduct.

42. Civil forfeiture is not tied to the identification, charging, prosecution, conviction or punishment of any offender. Civil forfeiture therefore denotes an action in rem, that is as against the property in contrast with in personam actions which are actions against individuals....”

29. I do also agree with the submission of Counsel that while Article 40 of the Constitution guarantees the right to property Sub-article 6 exists to ensure that that right does not extend to property that is unlawfully acquired. These proceedings do not therefore violate the right to property. As was also stated by Mativo JA in the case of Pamela Aboo v Assets Recovery Agency and Kenya Anti-Corruption Commission (Supra):-“46. ........Even if civil forfeiture infringes the right to property, such an infringement would be a proportionate response to the fundamental problem, which it addresses, namely that no one should be allowed to benefit from his or her wrongdoing. A remedy of this kind is justified to induce members of the public to act with vigilance in relation to goods they own or possess to inhibit crime. It thus serves a legitimate public purpose. Such an infringement no doubt satisfies the limitation clause in Article 24 of the Constitution. Therefore, because the proceedings are constitutionally permissible, any indignity from the forfeiture of the instrumentalities or proceeds of crime or unexplained wealth does not violate the constitution. It is, for example, akin to the exposure of anyone who is subject to lawful criminal proceedings.

47. Confiscation measures may be applied not only to the direct proceeds of crime but also to property, including any incomes and other indirect benefits, obtained by converting or transforming the direct proceeds of crime or intermingling them with other, possibly lawful, assets. Confiscation measures may be applied not only to persons directly suspected of criminal offences but also to any third parties who hold ownership rights without the requisite bona fide with a view to disguising their wrongful role in amassing the wealth in question.”

30. It is also not correct to state that an order for forfeiture violates the Respondent’s right to be presumed innocent until proved guilty. This is because as already stated civil forfeiture proceedings are proceedings in rem and are not dependent on the outcome of criminal proceedings.

31. In this case there is no doubt that the motor vehicle Regn. No. KCU 348H belongs to the 1st Respondent. The 1st Interested Party in whose name it is registered, has adduced evidence to prove that she sold the motor vehicle to the 2nd Respondent way back on 27th December 2019. Although the 1st Respondent initially in paragraph 3 of the Replying Affidavit denied being the owner of the vehicle, he subsequently in paragraph 10 admitted that he is. In paragraph 10 he deposes that “..... and further reiterate the fact that the motor vehicles the subject of the instant application are rightfully and legitimately mine....”

32. At paragraph 11 he also deposes that “... I wish to state that I am indeed the beneficial owner of the motor vehicles enumerated therein and further wish to state that my purchase of the said vehicles is not in dispute in this case.....”

33. The 1st Respondent has therefore expressly admitted ownership of that vehicle and also motor vehicle KCW 835N much as the 2nd Interested Party also purports to be the owner of motor vehicle KCW 385N. The motor vehicle may be registered in the name of the 2nd Interested Party much as motor vehicle KCU 348H is registered in the name of the 1st Interested Party but the vehicle’s legal ownership vests in the 1st Respondent as per his admission. It is indeed not surprising that the vehicle is registered in the name of someone other than the 1st Respondent as that is also the case with motor vehicle KCU 348H. There is no doubt in my mind that the registration of the two vehicles in names other than that of the 1st Respondent is but a means to conceal or disguise their ownership.

34. It is my further finding that the Applicant has adduced evidence that links the motor vehicle KCU 348H to the transportation of a prohibited or illegal substance. The Applicant has annexed statements from several law enforcement officers to the effect that the motor vehicle was intercepted while transporting several bags of green plant material and that when a sample of the material was taken to the Government Chemist it was analyzed and confirmed to be bhang. The report of the Government analyst and photographs depicting the motor vehicle at the police station after it was taken there are annexed to the supporting affidavit as exhibits. Also annexed are an inventory of all the items found in the vehicle when it was impounded. It is not lost to this court that the inventory is signed by the 1st Respondent and also by the 2nd Respondent who was driving the vehicle at the time. Also annexed are a certificate of weighing and several other documents and notices as are necessary of the DCI to conform with in such incidents. It is my finding that the material placed before this court constitutes cogent evidence which establishes a causal link between the motor vehicle KCU 348H and transportation of cannabis (bhang) which is an offence under Section 4(a) of the Narcotic Drugs and Psychotropic substances (Control) Act. That the motor vehicle is connected to a crime is not mere conjecture or allegation by the Applicant.

35. There is also cogent evidence that the 1st Respondent was in the motor vehicle at the time it was intercepted on the highway by the police officers and subsequently impounded. The 1st Respondent was therefore aware that it was being used to commit an offence. It is my finding therefore that the Applicant has proved a direct nexus between the use of the vehicle to an offence.

36. Whereas the 1st Respondent alleges to have purchased the vehicles through lawful income from his transport and livestock businesses, the materials he has placed before this court do not support his contention. I say to as it is one thing to hold a licence and another to carry on the business for which one is licenced and to make something out of it. In other words, the mere fact that the 1st Respondent was licenced to trade in livestock and skins perse is not proof that he carried on the business. Moreover, what the 2nd Interested Party annexed was just a contract but no evidence that the contract was implemented. The 1st Respondent did not adduce evidence to prove that he in fact engaged in the businesses. Such evidence would for instance include invoices, delivery notes and proof of payments made to him by the large institutions which the 2nd Interested Party alleges contracted him. It is instructive, that contrary to his Advocate’s submission, no invoices or receipts were presented to this court. The 1st Respondent and the 2nd Interested Party have therefore not discharged their evidential burden of proof which shifted to them once the Applicant discharged its legal burden of proof. They have not rebutted the Applicant’s evidence that the vehicles are tainted.

37. In the absence of proof that the 1st Respondent and 2nd Interested Party engaged in any legitimate business as would have afforded them the means to acquire the vehicles and there being evidence on a balance of probabilities that motor vehicle KCU 348H was impounded as it was trafficking cannabis, the only inference that can be drawn is that the vehicles are proceeds of crime. I find therefore that the Applicant has proved its case on a balance of probabilities. Accordingly, the vehicles are liable for forfeiture to the State and I do so order.

Issue No. (ii): Costs. 38. Costs generally follow the event and in this case the 1st Respondent and the 2nd Interested Party shall bear the costs of these proceedings and that includes those of the 1st Interested Party who was sued only because motor vehicle KCU 348H is still registered in her name yet she sold it to the 2nd Respondent way back in 2019.

39. In the upshot there shall be judgment for the Applicant against the 1st Respondent and the 2nd Interested Party as follows: -a.That a declaration be and is hereby issued that motor vehicle Regn. No. KCU 348H Toyota Land cruiser registered in the name of Grace Anyona Mbinda is a proceed of crime and the same is hereby forfeited to the Government of Kenya.b.That a declaration be and is hereby issued that motor vehicle Regn. No. KCW 835N Mercedes Benz Actors registered in the name of Jarso Boru Dida is a proceed of crime and the same is hereby forfeited to the Government of Kenya.c.That the costs of the Applicant and of the 1st Interested Party shall be borne by the 1st Respondent and the 2nd Interested Party.Orders accordingly.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 7TH DAY OF MARCH 2024. .............................E N MAINAJUDGEIn the presence of:-Mr. Githinji for Assets Recovery Agency/PlaintiffMs Kerubo for Mr. Omari for 1st Interested PartyNo appearance for Mr. Ogutu for 1st Respondent and2nd Interested PartyCourt Assistant:- Karanja