Assets Recovery Agency v Kimaco Connectons Limited & another; Mozzartbet Kenya Ltd (Intended Interested Party) [2022] KEHC 15252 (KLR)

Assets Recovery Agency v Kimaco Connectons Limited & another; Mozzartbet Kenya Ltd (Intended Interested Party) (Anti-Corruption and Economic Crimes Civil Suit E004 of 2021) [2022] KEHC 15252 (KLR) (Anti-Corruption and Economic Crimes) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15252 (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 E004 of 2021

EN Maina, J

October 5, 2022

Between

Assets Recovery Agency

Petitioner

and

Kimaco Connectons Limited

1st Respondent

Peter Kiilu Makau t/a Pescom Kenya

2nd Respondent

and

Mozzartbet Kenya Ltd

Intended Interested Party

Ruling

1. The application by the interested party dated April 25, 2022 and the application by the respondents dated June 2, 2022 both seek a return of the funds the subject of the forfeiture order granted by this court on April 1, 2022, to a certain account at Diamond Trust Bank Ltd pending hearing and determination of an appeal filed in the Court of Appeal. Parties had filed written submission on both application and I have perused the rival submissions and the cases cited therein. However, the law is explicit on what is to happen upon an appeal by a party aggrieved by a forfeiture order.

2. Firstly, section 92 (6)(b) of the Proceeds of Crime and Anti-Money Laundering Act provides that a forfeiture order shall not take effect before an appeal has been disposed of secondly section 97 of the Act provides that pending the outcome of the appeal any preservation order and any order authorizing the seizure of the property concerned shall remain in force.

3. In effect therefore whereas the forfeiture order cannot take effect before the appeal is heard and determined the preservation and seizure orders granted to the applicant in regard to the funds in issue must remain in force. For that reason and the hands of this court being tied by the law it cannot grant the orders sought by the respondents and the interested party. That is not to say however that the Assets Recovery Agency/applicant/respondent can do whatever it pleases with the funds. The same must remain preserved pending the hearing and determination of the appeal.

4. Accordingly, the notice of motion dated 25/4/2022 and the notice of motion dated June 2, 2022 are both dismissed with an order that parties shall bear their own costs.Orders accordingly.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 5TH DAY OF OCTOBER, 2022. E. N MAINAJUDGEIn the Presence of:-Mr. Lutta for the RespondentsMs Chebet for the Interested party/ApplicantMr. Githinji for ARA/RespondentPotishoi - Court Assistant.