Assets Recovery Agency v Njunge & 5 others; Ahmed (Interested Party) [2023] KEHC 25756 (KLR) | Asset Forfeiture | Esheria

Assets Recovery Agency v Njunge & 5 others; Ahmed (Interested Party) [2023] KEHC 25756 (KLR)

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Assets Recovery Agency v Njunge & 5 others; Ahmed (Interested Party) (Civil Application E028 of 2021) [2023] KEHC 25756 (KLR) (Anti-Corruption and Economic Crimes) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25756 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Civil Application E028 of 2021

EN Maina, J

November 16, 2023

Between

Assets Recovery Agency

Applicant

and

Esther Wagio Njunge

1st Respondent

Margaret Wanja Muthui

2nd Respondent

Light House Trading Company Ltd

3rd Respondent

Grace Nyambura Ndiritu

4th Respondent

Mercy Wambui Nyambura

5th Respondent

Cynthia Wanjiku Nyambura

6th Respondent

and

Abdulwalli Shariff Ahmed

Interested Party

Judgment

Introduction 1. On 26th April, 2021 the Applicant received information that the Respondents had acquired funds and assets through a scheme of money laundering, which are reasonably believed to be proceeds of crime. That the Applicant opened an Inquiry file to investigate and inquire into activities of the Respondents ‑ for the offences of money laundering and identification of proceeds of crime.

2. The Applicant obtained orders from the Chief Magistrate's Court ex-parte vide Misc. Criminal Application No. E1422 of 2021, E1423 of 2021, and E1700 of 2021 pursuant to Sections 118,118A, & 121 of the Criminal Procedure Code, Sections 180(1) & (2) of the Evidence Act and Sections 53A of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA), seeking orders to investigate and restrict debits in the 1st, 2nd, and 3rd Respondents' accounts.

3. Accordingly, the orders were served upon the respective banks where the accounts in the name of the 1, 2 and 3 Respondents' were held. The respective banks issued the Applicant with account opening forms, and bank statements in the name of the 1st, 2nd, and 3rd Respondents' accounts.

4. After analysis of the 1st, 2nd, and 3rd Respondents’ bank statements, the investigations established that those accounts had received suspicious funds, through a scheme of money laundering which funds are believed to be illicit funds and/or proceeds of crime.

5. Pursuant to the findings of the investigations, the Applicant filed preservation application and obtained preservation orders on 21st June, 2021 vide NRB HCMIC APP No. E019 of 2021. Assets Recovery Agency Vs- Esther Wagio Njunge & 5 Others pursuant to Sections 81, 82 and 87 of the Proceeds of Crime and Anti ­ Money Laundering Act (POCAMLA) preserving the traced funds, and assets ‑ in the name of the 1st, 2nd, 3rd, 4th, 5th, and 6th Respondents.

6. The Applicant went on to gazette the preservation orders on 9th July, 2021 pursuant to Section 83(1) of the POCAMLA vide Gazette Notice No. 6945.

7. Subsequently, the Applicant filed forfeiture application dated 4th October, 2011 pursuant to Sections 81, 90, and 92 of the POCAMLA seeking forfeiture of the funds, and assets ‑ subject of the preservation orders which was served upon the Respondents. This forfeiture application forms the subject of this judgment.

The Parties 8. The Applicant, Assets Recovery Agency [herein after referred to as “Agency”], is established under Section 53 of the Proceeds of Crime and Anti-Money Laundering Act [POCAMLA] with the mandate of identifying, tracing, freezing, seizing, and recovering proceeds of crime.

9. The 1st Respondent, Esther Wagio Njuge, identifies as a director of Lighthouse Trading Company Limited [which is the 3rd Respondent herein].

10. The 2nd Respondent, Margaret Wanja Muthui, was at all material times the Deputy Director, Supply Chain Management at the Kenya Rural Roads Authority (KeRRA)

11. The 3rd Respondent is Lighthouse Trading Company Limited with a family company said to have been passed over to the 2nd Respondent and her sister one Alice Wacuke Njunge, who are now the directors of the company.

12. The 4th Respondent, Grace Nyambura Ndiritu is a green grocer at Githurai Market and is said to be a sister to Mr. Ephantus Kimotho Kimani.

13. The 5th Respondent, Mercy Wambui Nyambura, was at the material time a graduate of the Moi University and a post graduate student at the Kenya Institute of Supplies Management who was yet to be employed and is also said to be a niece of one Ephantus Kimohto Kimani.

14. The 6th Respondent, Cynthia Wanjiku Nyambura, identifies as a sister of the 5th Respondent who had at the material time just graduated from Moi University.

15. The Interested Party, Abdulwalli Shariff Ahmed, describes himself as a Kenyan Citizen with business interest in local, and international companies: Director at Zynmat Group of Companies Limited, and Tunasco Insaat Ticaret A.S.; and also a founding shareholder and director of Ceytun East Africa Limited.

The Applicant’s case 16. The Agency, by an Originating Motion dated 4th October, 2021 – brought under Section 81, 90, & 92 of the Proceeds of Crime and Anti-Money Laundering Act; and Order 51 of the Civil Procedure Rules – seeks for orders:1)That this Honourable Court be pleased to issue an order declaring that the following funds and assets are proceeds of crime and are liable for forfeiture to the Government;a)Ksh 74,774,000. 00 held in fixed deposit account No. xxxxxxxxxx at Co-operative bank of Kenya in the name of the 1st Respondent, Esther Wagio Njunge.b)Ksh 13,939,249. 99 held in fixed deposit account No. xxxxxxxxxx a at Co­operative bank of Kenya in the name of the 2nd Respondent, Margaret Wanja Muthui.c)Ksh 6,773,157. 80 held in account No. xxxxxxxxxx a at Co-operative bank of Kenya in the name of the 3rd Respondent, Light House Trading Company Ltd.d)Apartment numbers 820, Cl4, Cl5, C22, C24, C26, C30 & C34 erected on LR No. 209/21878 (Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 3rd Respondent.e)Apartment number C16 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 4th Respondent.f)Apartment number C2 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 5th Respondent.g)Apartment number C3 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 6th Respondent.h)House No.3 erected on LR No. 1160/1190 (original number 1160/1189/1) Nairobi, Collingham gardens registered in the name of the 3rd Respondent.i)Land Reference Kiambaa/Ruaka/5500 situated in Ruaka area of Kiambu county registered in the name of the 3rd Respondent.j)Residential flat comprising of 24 apartments known as "Taraji Residence" erected on Land Reference Kiambaa/Ruaka/4923 in Kiambu County, registered in the name of the 3rd Respondent.k)Land Reference Dagoreti/Riruta/4756 purchased by the 3rd Respondent.2)That this Honourable Court be pleased to issue an order declaring that any rental income. benefit, profit accruing from the following properties are proceeds of crime and therefore liable for forfeiture to the Government.a)Apartment numbers B20, C14, Cl5, C22, C24, C26, C30 & C34 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 3rd Respondent.b)Apartment number C16 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 4th Respondent.c)Apartment number C2 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi, (Signature Apartments), registered in the name of the 5th Respondent.d)Apartment number C3 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 6th Respondent.e)Residential flat comprising of 24 apartments known as "Taraji Residence" erected on Land Reference Kiambaa/Ruaka/4923 in Kiambu County, registered in the name of the 3rd Respondent.3)That this Honourable Court be pleased to issue vesting orders transferring the following assets to the Applicant;a)Apartment numbers B20, C14, C15, C22, C24, C26, C30 & C34 erected on LR No. 209/21878 (Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 3rd Respondent.b)Apartment number C16 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 4th Respondent.c)Apartment number C2 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 5th Respondent.d)Apartment number C3 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 6th Respondent.I) (sic) Residential flat comprising of 24 apartments known as "Taraji Residence" erected on Land Reference Kiambaa/Ruaka/4923 in Kiambu County, registered in the name of the 3rd Respondent.e)House No.3 erected on LR No. 1160/1190(original number 1160/1189/1) Nairobi, Collingham gardens, registered in the name of the 3rd Respondent.f)Land Reference Kiambaa/Ruaka/5500 situated in Ruaka area of Kiambu county registered in the name of the 3rd Respondent.g)Land Reference Dagoreti/Riruta/4756 purchased by the 3rd Respondent.4)That this Honourable Court be pleased to issue an order that the above stated funds. assets, rental income, benefit, profit accruing from the assets stated in prayers 1 & 2 be forfeited to the Government and transferred to the Applicant.5)That this Court do make any other ancillary orders it considers appropriate to facilitate the transfer of the property forfeited to the Government.6)That costs be provided for.

17. The Application is accompanied by an even dated Supporting Affidavit of CPL. Fredrick Muriuki (No.62047) a police officer/investigator attached to the Assets Recovery Agency [Applicant] – supporting the forfeiture Application. It is averred as follows:(1)That I am a police officer/investigator currently attached to the Assets Recovery Agency, and therefore competent and authorized to swear this supporting affidavit in support of the Forfeiture Application herein.(2)That the Applicant has policing powers to enable it identify, trace, freeze, seize and recover proceeds of crime under Section 53A (5) of the Proceeds of Crime and Anti ­ Money Laundering Act herein after referred as (POCAMLA).(3)That I was part of a team of investigators investigating the Respondents' who are beneficial owners of assets believed to be proceeds of crime.(4)That on 26th April 2021, the Applicant received information that the Respondents had acquired assets through a scheme of money laundering which assets are believed to be proceeds of crime.(5)That I opened inquiry file No.27 of 2021 and commenced investigations to investigate the Respondents and establish if they were involved in the scheme of money laundering activities and also to identify the proceeds of crime.(6)That the investigations revealed that the 3rd Respondent is a limited company whose registration No. is CPR/2010/29334 registered on 17th August 2010 and the directors of the company are the 1st Respondent, Esther Wagio Njunge and one Alice Wacuka Njunge. (Annexed herewith and marked FM1 is a copy of the company records).(7)That on 3rd May 2021 and 24th May 2021, I obtained Court orders from the Chief Magistrate Court vide Miscellaneous Criminal Application. Numbers. E1422 of 2021, 1423 of 2021, and E1700 of 2021 to investigate and restrict debits of inter-alia the 1st, 2nd, and 3rd Respondents bank accounts. (Annexed herewith and marked FM2 A, B & C are copies of the court orders).(8)That the court orders were served upon the respective banks and I obtained the Respondents' account opening forms, bank statements as per the court order.(9)That after analysis of the 1st, 2nd, and 3rd Respondent's bank accounts, the investigations revealed that the 1st ,2nd, and 3rd Respondents accounts had received suspicious funds through a scheme of money laundering which are believed to be proceeds of crime.(10)That further investigations traced properties which were unlawfully acquired and purchased with illicit funds and are registered in the name of 3rd, 4th, 5th & 6th Respondents.(11)That following the investigations the Applicant, filed preservation application and obtained preservation orders on 21st June 2021 vide NRB HCMISC App No. EO19 of 2021, Assets Recovery Agency -Vs- Esther Wagio Njunge & 5 Others pursuant to sections 81, 82, and 87 of POCAMLA preserving the traced funds, assets, rental income, benefit, profit accruing from some of the preserved assets which are proceeds of crime. (Annexed herewith and marked FM3 is a copy of the preservation orders).(12)That the Applicant gazetted the preservation orders on 9th July 2021 pursuant to Section 83(1) of POCAMLA vide Gazette Notice No. 6945. (Annexed herewith and marked FM4 is a copy of the gazette notice).(13)That the preservation proceeding was premised on an investigation which established that on diverse dates between 2015 to 2021, the 1st Respondent's fixed account No. xxxxxxxxxxx held at Co-operative bank received suspicious funds whose principal sum and interest at maturity date on 16th April 2022 will be Ksh 74,774,000. 00 which accumulated as follows;a)On 13th April 2015, the 2nd Respondent transferred through RTGS suspicious funds of Ksh 39,000,000 from her account number xxxxxxxxxxx held at Cooperative bank to the 1st Respondent account number xxxxxxxxxxxheld at Equity bank. (Annexed herewith and marked FM 5A & 5B are copies of the bank statements for account number xxxxxxxxxxx and xxxxxxxxxxx).b)On 4th June 2015, the 1st Respondent transferred through RTGS the suspicious funds of Kshs 39,000,000 from her account number xxxxxxxxxxx held at Equity bank to her other account number xxxxxxxxxxx held at Co-operative bank. (Annexed herewith and marked FM6 is a copy of the bank statement for account number xxxxxxxxxxx).c)On 8th June 2015, the 1st Respondent's account No. xxxxxxxxxxx held at Co-operative bank received an addition suspicious funds of Ksh 3,000,000 from the 3rd Respondent.d)As on 8th June 2015, the 1st Respondent's account No. xxxxxxxxxxx at Co-operative bank had received approximate Ksh 42,000,000 (refer to annexure marked FM6).e)On 9th June 2015, the total Ksh 42,000,000 was placed in fixed deposit account and accumulated interest as shown in the table below; (refer to annexure marked FM6).Date SoUrce Amount (Debit) Amount (Credit)

09/06/2015 Fixed Deposit 42,000,000. 00

09/09/2015 Maturity

42,000,000. 00

Interest applied

1, 058,630. 13

10/09/2015 Fixed Deposit 42,900,000. 00

10/12/2015 Maturity

42,900,000. 00

Interest applied

1,443,908. 21

11/12/2015 Fixed Deposit 44,137,361. 00

11/03/2016 Maturity

44,137,361. 00

Interest applied

1,210,452. 07

30/03/2016 Fixed Deposit 45,166,000. 00

30/09/2016 Maturity

45,166,000. 00

30/09/2016 Interest applied

2,390,704. 43

14/10/2016 Fixed Deposit 47,200,000. 00

14/04/2017 Maturity

47,200,000. 00

14/04/2017 Interest applied

2,059,342. 46

26/04/2017 Fixed Deposit

48,950,000. 00

26/07/2017 Interest applied

1,067,847. 60

26/07/2017 49,857,670. 00f)On 26th July 2017, the above Ksh 49,857,670. 00 which had accumulated interest in the 1st Respondent xxxxxxxxxxx account held at Co-operative bank was transferred to her other account number xxxxxxxxxxx held in the same bank. (Annexed herewith and marked FM7 is a copy of the bank statement for account number xxxxxxxxxxx).g)On the same date 26th July 2017 the Ksh 49,857,670 was placed in a fixed deposit account and accumulated interest to Ksh 68,600,00. as on 16th April 2021 as shown below; (refer to annexure marked FM7).Date Source Amount (Debit) Amount (Credit)

26/07/2017 Funds transfer (from xxxxxxxxxxx)

49,857,670. 00

26/07/2017 Fixed Deposit 49,850,000. 00

26/07/2017 Maturity

49,850,000. 000

Interest Applied

1,099,431. 50

03/11/2017 Self-Transfer from xxxxxxxxxxx

3,517,686. 95

Total

54,476,117. 45

03/11/2017 Fixed Deposit 53,309,956. 25

03/05/2018 Maturity

54,309,956. 25

Interest applied

2,558,519. 71

14/05/2018 Fixed Deposit 56,551,000. 00

14/05/2019 Maturity

56,551,000. 00

Interest applied

04/10/2019 Fixed Deposit 62,000,000. 00

04/04/2020 Maturity

62,000,000. 00

04/04/2020 Interest applied

2,486,794. 52

08/04/2020 Fixed Deposit 64,000,000. 00

08/10/2020 Maturity

64,000,000. 00

Interest applied

2,486,794. 52

09/10/2020 Fixed Deposit 66,300,000. 000

09/04/2021 Maturity

66,300,000. 00

Interest applied

2,644,734. 24

16/04/2021 Fixed Deposit

68,600,000. 00h)That on 16th April 2021 the above Ksh 68,600,000. 00/= was deposited in a fixed deposit account number xxxxxxxxxxx held at Co-operative bank for a period of one year.i)That the maturity date of the Ksh 68,600,000. 00/= is on 16th April 2022, whose expected interest at maturity is Ksh 6,174,000 and the total maturity amount will be Ksh 74,774,000. 00. as of the said date. (Annexed herewith and marked FMB is a copy of the bank document for account No. xxxxxxxxxxx in the name of the Respondent).14. That further investigations established that, on 12th April 2021, the 2nd Respondent's placed suspicious funds amounting to Ksh 13,000,000/= in a fixed deposit account No. xxxxxxxxxxx held at Cooperative bank for a period of one year whose date of maturity is on 12th April 2022. (Annexed herewith and marked FM9 is a copy of the bank statement for account number xxxxxxxxxxx).15. That the expected interest at maturity of the above fixed amount is Ksh 1,104,999 and the total maturity amount will be Ksh 13,939,249 on 12th April 2022. (refer to annexure marked FM9).16. That further investigations established that the 3rd Respondent was used as a conduit for money laundering to hide, conceal and disguise the illicit funds as follows;a)On diverse dates between 2015 to 2021 the 3rd Respondent's bank account No. xxxxxxxxxxx at Co-operative bank received suspicious funds as shown in the table below;Account No. xxxxxxxxxxx at Co-operative Bank in the Name of Lighthouse Trading Company LTD

No. DATE AMOUNT (KSHS)

1. 28/5/2015 2,800,000

2. 20/6/2015 500,000

3. 25/8/2015 133,400

4. 14/12/2015 471,464

5. 6/9/2016 2,200,000

6. 28/12/2017 1,866,207

7. 27/12/2019 200,000

8. 24/01/2020 1,096,000

9. 1/02/2020 200,000

10. 25/02/2020 200,000

11. 9/03/2020 750,000

12. 19/03/2020 750,000

13. 25/03/2020 200,000

14. 24/04/2020 200,000

15. 30/04/2020 750,000

16. 22/05/2020 200,000

17. 23/06/2020 200,000

18. 27/07/2020 200,000

19. 03/08/2020 750,000

20. 3/09/2020 200,000

21. 29/09/2020 200,000

22. 26/10/2020 750,000

23. 28/10/2020 200,000

24. 25/11/2020 200,000

25. 25/11/2020 200,000

26. 22/12/2020 200,000

27. 22/12/2020 180,000

28. 25/01/2021 180,000

29. 27/11/2021 200,000

30. 01/02/2021 750,000

31. 10/02/2021 232,000

32. 11/02/2021 116,000

33. 23/02/2021 405,000

34. 24/02/2021 200,000

35. 25/02/2021 180,000

36. 10/03/2021 116,000

37. 24/03/2021 200,000

38. 25/03/2021 180,000

39. 20/04/2021 116,000

40. 26/04/2021 180,000

41. 27/04/2021 200,000

42. 18/05/2021 750,000

TOTAL KSH 19, 802,071a)Following the investigations into the suspicious transaction in the 3rd Respondent's bank account No. xxxxxxxxxxx at Cooperative bank, the Applicant obtained orders to preserve the funds in the said account whose balance was Ksh 4,836,757 /= as on 20th May 2021. b)That further investigations into the said account number No xxxxxxxxxxx established that the account received additional funds which include rental income from the preserved assets and the balance as on 1st October 2021 is Ksh 6,773,157. 80 (Annexed herewith and marked FMIO is a copy of the bank statement for account number xxxxxxxxxxx).j)That investigations further established that the 2nd Respondent, used illicit funds to purchase the following eleven (11) apartments in Kileleshwa Nairobi (Signature Apartments), from Ceytun East Africa Ltd and registered them in the name of the 3rd ,4th ,5th and 6th Respondent as follows;

A.Apartment No. C14 erected on L.R No. 209/21878 (Original No. 209/7752) Kileleshwa, Nairobi (Signatures Apartments)k)That the 1st Respondent and one Alice Wacuka Njunge who are directors of the 3rd Respondent signed a sale agreement dated 20th August 2019 with the vendor, a limited company incorporated in Turkey named Ceytun lnsaat Sanayi Ve Ticaret and the developer, Ceytun East Africa Ltd for the purchase of Apartment No. C14 at a purchase price of Kenya Shilling Twenty-Million, Five Hundred Thousand (Kshs 20,500,000. 00/=). (Annexed herewith and marked FMI1 is a copy of the sale agreement).l)That on 28th July 2019, the 2nd Respondent in the company of her advocate Henia Ruara went to Ceytun East Africa Ltd office at Signature Apartment, Kileleshwa ­Mwingi Road and paid Necmi Karatas who was in charge of sales at Ceytun East Africa Ltd, the full purchase price of Kshs 20,500,000. 00/= in cash for the purchase of Apartment No. C14, which funds are believed to be illicit funds. (Annexed herewith and marked FM12 is a copy of Necmi Karatas statement).m)That vide lease document dated 6th September 2019 the apartment No.C14 was registered in the name of the 3Respondent. (Annexed herewith and marked FM13 is a copy of Lease).n)That the apartment No. C14 is occupied by a tenant who prior to obtaining the preservation orders on 21st June 2021 paid the 3rd Respondent monthly rent of Ksh 116,000/= which is a benefit and illicit funds accruing from the apartment that is a proceed of crime. (Annexed herewith and marked FM14 is a copy of the lease agreement).o)That following the preservation orders obtained on 21st June 2021, the preserved monthly rental income for apartment C14 is deposited into the Agency's account pending the determination of the forfeiture Application herein.B.Apartment No. C15 erected on LR No. 209/21878 (Original No. 209/7752) Kileleshwa, Nairobi (signatures apartments)p)That the 1 Respondent and one Alice Wacuka Njunge signed a sale agreement dated 20th August 2019 with the vendor Ceytun Insaat Sanayi Ve Ticaret, and the developer Ceytun East Africa Ltd, for the purchase of Apartment No. ClS at a purchase price of Kenya Shilling Twenty-two million (Ksh 22,000,000/=) (Annexed herewith and marked FM/5 is a copy of the sale agreement).q)That on 31st August 2019 the 2nd Respondent in the company of her advocate Henia Ruara went to Ceytun East Africa Ltd office and paid Necmi Karatas the full purchase price of Kshs 22,000,000/= in cash for the purchase of Apartment No. C15, which funds are believed to be illicit funds. (refer to Necmi Karatas statement marked as FM12).r)That vide lease document dated 6th September 2019, the apartment no. C15 was registered in the name of the 3rd Respondent. (Annexed herewith and marked FM16 is a copy of Lease).s)That the apartment No. Cl5 is currently occupied by a tenant who prior to obtaining the preservation orders on 21st June 2021 paid the 3rd Respondent, monthly rent of Ksh 170,000 which is a benefit and illicit funds accruing from the apartment that is a proceed of crime. (Annexed herewith and marked FMI7 is a copy of the lease agreement).t)That following the preservation orders obtained on 21st June 2021, the preserved monthly rental income for apartment C15 is deposited into the Agency's account pending the determination of the forfeiture Application herein.C.Apartment No. C22 Erected on LR No. 209/21878 (Original No. 209/7752) Kileleshwa, Nairobi (signatures Apartments)u)That the 1st Respondent and one Alice Wacuka Njunge signed a sale agreement dated 24th September 2019, with the vendor, Ceytun Insaat Sanayi Ve Ticaret and the developer, Ceytun East Africa Ltd for the purchase of Apartment No. C22 at a purchase price of Kenya Shilling Twenty-Five Million, five hundred thousand (Ksh 25,500,000/=) (Annexed herewith and marked FM18 is a copy of the sale agreement).v)That the 2nd Respondent paid the purchase price of Ksh 25,500,000/= in cash for Apartment No. C22, which funds are believed to be proceeds of crime (Annexed herewith and marked FM19 is a copy of Andrew Mike Shindu statement).w)That vide lease document dated 11th December 2019 the apartment No.C22 was registered in the name of the 3rd Respondent. (Annexed herewith and marked FM20 is a copy of Lease).x)That the apartment No. C22 was occupied by a tenant who paid the 3rd Respondent, the registered owner the monthly rent of Ksh 250,000/= which is a benefit and illicit funds accruing from the apartment that is a proceed of crime. (Annexed herewith and marked FM21 is a copy of the lease agreement).D.Apartment No. C24 erected on LR No. 209/21878 (Original No. 209/7752) Kileleshwa, Nairobi (signatures Apartments)y)That the 1st Respondent and one Alice Wacuka Njunge signed a sale agreement dated 25th August 2019, with the vendor, Ceytun Insaat Sanayi Ve Ticaret and the developer Ceytun East Africa Ltd for the purchase of Apartment No. C24 at a purchase price of Kenya Shilling Twenty-Five Million, five hundred thousand (Ksh 25,500,000/=) (Annexed herewith and marked FM22 is a copy of the sale agreement).z)That on 26th August 2019, the 2nd Respondent in the company of her advocate Henia Ruara went to Ceytun East Africa Ltd office and paid Necmi Karatas the full purchase price of Ksh 25,500,000/= in cash for the purchase of Apartment No. C24 which funds are believed to be illicit funds. (refer to Necmi Karatas statement marked as FMI2).aa)That vide lease document dated 6th September 2019 the apartment No.C24 was registered in the name of the 3rd Respondent. (Annexed herewith and marked FM23 is a copy of Lease).E.Apartment No. C26 erected on LR No. 209/21878 (Original No. 209/7752) Kileleshwa, Nairobi (signatures Apartments)bb)That the 1st Respondent and one Alice Wacuka Njunge signed a sale agreement dated 20th August 2019, with the vendor, Ceytun Insaat Sanayi Ve Ticaret and the developer Ceytun East Africa Ltd for the purchase of Apartment No. C26 at a purchase price of Kenya Shilling Twenty Million, five hundred thousand (Ksh 20,500,000/=) (Annexed herewith and marked FM24 is a copy of the sale agreement).cc)That on 28th August 2019, the 2nd Respondent in the company of her advocate Henia Ruara went to Ceytun East Africa Ltd office and paid Necmi Karatas the full purchase price of Ksh 20,500,000/= in cash for the purchase of Apartment No. C26, which funds are believed to be illicit funds. (refer to Necmi Karatas statement marked as FMI2).dd)That vide lease document dated 6th September 2019 the apartment No.C26 was registered in the name of the 3rd Respondent. (Annexed herewith and marked FM25 is a copy of lease).ee)That the apartment No. C26 is occupied by a tenant who prior to obtaining the preservation orders on 21st June 2021 paid the 3rd Respondent monthly rent of Ksh 135,000 which is a benefit and illicit funds accruing from the apartment that is a proceed of crime. (Annexed herewith and marked FM26 is a copy of the lease agreement).ff)That following the preservation orders obtained on 21st June 2021, the preserved monthly rental income for apartment No. C26 is deposited into the Agency's account pending the determination of the forfeiture Application herein.F.Apartment No. C30 erected on L.R No. 209/21878 (Original No. 209/7752) Kileleshwa, Nairobi (signatures Apartments)gg)That the 1st Respondent and one Alice Wacuka Njunge signed a sale agreement dated 20th August 2019, with the vendor, Ceytun Insaat Sanayi Ve Ticaret and the developer Ceytun East Africa Ltd for the purchase of Apartment No. C30 at a purchase price of Kenya Shilling Twenty-five Million, five hundred thousand (Ksh 25,500,000/=) (Annexed herewith and marked FM2 7 is a copy of the sale agreement).hh)That on 26th August 2019, the 2nd Respondent in the company of her advocate Henia Ruara went to Ceytun East Africa Ltd office and paid Necmi Karatas the full purchase price of Kshs 25,500,000/= in cash for the purchase of Apartment No.C30, which funds are believed to be illicit funds. (refer to Necmi Karatas statement marked as FMI2).ii)That vide lease document dated 6th September 2019 the apartment No.C30 was registered in the name the 3rd Respondent. (Annexed herewith and marked FM28 is a copy of Lease).G.Apartment No. C34 erected on L.R No. 209/21878 (Original No. 209/7752) Kileleshwa, Nairobi (signatures Apartments)jj)That the 1st Respondent and one Alice Wacuka Njunge signed a sale agreement dated 15th July 2019, with the vendor, Ceytun Insaat Sanayi Ve Ticaret and the developer Ceytun East Africa Ltd for the purchase of Apartment No. C34 at a purchase price of Kenya Shilling Twenty-seven Million, (Ksh 27,000,000/=) (Annexed herewith and marked FM29 is a copy of the sale agreement).kk)That on 24 July 2019, the 2nd Respondent in the company of her advocate Henia Ruara went to Ceytun East Africa Ltd office and paid Necmi Karatas the full purchase price of Kshs 27,000,000/= in cash for the purchase of Apartment No. C34, which funds are believed to be illicit funds (refer to Necmi Karatas statement marked as FM12).ll)That vide lease document dated 29th July 2019 the apartment No.C34 was registered in the name of the 3rd Respondent. (Annexed herewith and marked FM30 is a copy of Lease).mm)That the apartment No. C34 was occupied by a tenant who paid the 3rd Respondent, the registered owner the monthly rent of Ksh 200,000 which is a benefit and illicit funds accruing from the apartment that is a proceed of crime (Annexed herewith and marked FM31 is a copy of the lease agreement).H.Apartment No. B20 erected on LR No. 209/21878 (Original No. 209/7752) Kileleshwa, Nairobi (signatures Apartments)nn)That the 1st Respondent and one Alice Wacuka Njunge signed a sale agreement dated 23rd July 2019, with the vendor, Jean Pierre De Leu for the purchase of Apartment No. B20 at a purchase price of Kenya Shilling Twenty-seven Million, (Ksh 27,000,000/=) (Annexed herewith and marked FM32 is a copy of the sale agreement).oo)That the 2nd Respondent paid the purchase price of Ksh 27,000,000/=) in cash for the purchase of Apartment No. B20, which funds are believed to be illicit funds. (refer to Andrew Mike Shiundu witness statement marked as FM19).I.Apartment No.C16 erected on LR No. 209/21878 (original No, 209/7752) Kileleshwa, Nairobi (signatures Apartments)pp)That further investigations established that the 2nd Respondent, used the illicit funds to purchase apartment No. C16 from Ceytun East Africa Ltd and registered it in the name of the 4Respondent as follows;qq)That the 4th Respondent as the purchaser signed a sale agreement dated 15th July 2019, with the vendor Ceytun lnsaat Sanayi Ve Ticaret and the developer Ceytun East Africa Ltd for the purchase of Apartment No. C16 at a purchase price of Kenya Shilling Twenty-seven Million, (Ksh 27,000,000/=) (Annexed herewith and marked FM33 is a copy of the sale agreement).rr)That on 22nd July 2019, the 2nd Respondent in the company of her advocate Henia Ruara went to Ceytun East Africa Ltd office and paid Necmi Karatas the full purchase price of Kshs 27,000,000/= in cash for the purchase of Apartment No. C16, which funds are believed to be proceeds of crime. (refer to Necmi Karatas statement marked as FMI2).ss)That vide lease document dated 29th July 2019 the apartment No.C16 was registered in the name of the 4th Respondent. (Annexed herewith and marked FM34 is a copy of Lease).J.Apartment No.C2 erected on LR No. 209/21878 (original No, 209/7752) Kileleshwa, Nairobi (signatures Apartments)tt)That further investigations established that the 2nd Respondent, used the illicit funds to purchase apartment No. C2 from Ceytun East Africa Ltd and registered it in the name of the 5th Respondent as follows;uu)That the 5th Respondent as the purchaser signed a sale agreement dated 15th July 2019, with the vendor, Ceytun lnsaat Sanayi Ve Ticaret and the developer, Ceytun East Africa Ltd for the purchase of Apartment No. C2 at a purchase price of Kenya Shilling Twenty-two Million, (Ksh 22,000,000/=) (Annexed herewith and marked FM35 is a copy of the sale agreement).vv)That on 17th July 2019, the 2nd Respondent in the company of her advocate Henia Ruara went to Ceytun East Africa Ltd office and paid Necmi Karatas the full purchase price of Kshs 22,000,000/= in cash for the purchase of Apartment No.C2, which funds are believed to be proceeds of crime. (refer to Necmi Karatas statement marked as FMI2).ww)That vide lease document dated 29th July 2019 the apartment No.C2 was registered in the name of the 5 Respondent. (Annexed herewith and marked FM36 is a copy of Lease).K.Apartment No.C3 erected on LR No. 209/21878 {original No. 209/7752) Kileleshwa, Nairobi (signatures Apartments)xx)That the investigations revealed that the 2nd Respondent, used the illicit funds to purchase apartment number C3 from Ceytun East Africa Ltd and registered the same in the name of the 6 Respondent as follows;yy)That on 19th July 2019, the 2nd Respondent in the company of her advocate Henia Ruara went to Ceytun East Africa Ltd office and paid Necmi Karatas the full purchase price of Kshs 22,000,000/= in cash for the purchase of Apartment No. C3, which funds are believed to be proceeds of crime. (refer to Necmi Karatas statement marked as FM12).zz)That vide lease document dated 29th July 2019 the apartment No.C3 was registered in the name of the 6th Respondent (Annexed herewith and marked FM37 is a copy of Lease).aaa)That the apartment No. C3 was occupied by a tenant who paid the 3rd Respondent monthly rent of Ksh 180,000 which is a benefit and illicit funds accruing from the apartment that is a proceed of crime (Annexed herewith and marked FM38 is a copy of the lease agreement).bbb)That as on 4th October 2021, apartments numbers C14, C15, and C26 are occupied by tenants.ccc)That the investigations established that the 2nd Respondent paid a total of Ksh 264,500,000 million in cash for the above eleven (11) apartments and which apartments were registered in the names of the 3rd ,4th, 5th and 6th Respondents in a scheme of concealing the ownership.ddd)That the investigations established that the 2nd Respondent bought the assets in issue within a period of about three months during the demonetization period in 2019 so as to launder the illegitimately obtained cash.L.House No.3 erected on land reference No. 1160/1190(original Number 1160/1189/1) Nairobi, Collingham Gardenseee)That further investigations established that vide sale agreement dated 1st August 2016, the 3rd Respondent, purchased the above stated house from Collingham Garden Ltd at a purchase price of Kenya Shillings Fifty-five million (Ksh 55,000,000/=) which funds are believed to be proceeds of crime (Annexed herewith and marked FM39 is a copy of the sale agreement).fff)That vide a lease dated 22nd August 2016, the above property was registered in the name of the 3rd Respondent. (Annexed herewith and marked FM4O is a copy of the lease document).M.Land reference KIAMBANRUAKNSS00 situated in Ruaka Area of Kiambu Countyggg)That investigations revealed that vide sale agreement dated 7th June 2019, the 3rd Respondent purchased the above property from one Paul Kahungi Kamau at a purchase price of Kenya Shillings Fifteen Million (Kshs 15,000,000) which funds are believed to be from illegitimate sources and proceeds of crime. (Annexed herewith and marked FM41 is a copy of the sale agreement).hhh)That the above property is registered in the name of the 3rd Respondent. (Annexed herewith and marked FM42 is a copy of the title document).N.Land reference KIAMBA/RUAKA/4923 in Kiambu Countyiii)That investigations established that vide sale agreement dated 9th March 2019, the 3rd Respondent purchased the above land parcel from Fredrick Kithinji Njogu at a cost of Kenya Shillings fifteen million (Ksh 15,000,000/=) which funds are believed to be illicit funds and proceeds of crime. (Annexed herewith and marked FM43 is a copy of the sale agreement).jjj)That the above property is registered in the name of the 3rd Respondent. (Annexed herewith and marked FM44 is a copy of the title document).kkk)That further investigations established that above land parcel Kiambaa/Ruaka/4923 was developed and a residential flat comprising of 24 units known as "Taraji Residence" is erected on the land.lll)That prior to obtaining the preservation orders. the tenants occupying "Taraji resident" paid the 3rd Respondent the monthly rental income. (Annexed herewith and marked FM45A, B, C, D, E, F, G, H, I, J, K, L are some of the copies of the tenants lease agreements).mmm)That as on 4th October 2021, the residential flat is occupied by Twenty (20) tenants as shown in the table below who deposit the monthly rent in the Agency's account as per the preservation orders obtained on 21st June 2021. NO HOUSE NUMBER MONTHLY RENT (KSH) SERVICE CHARGE (KSH)

1. A1 38,000 1200

2. A3 20,000 1200

3. A4 28,000 1200

4. B1 38,000 1200

5. B2 38,000 1200

6. B3 20,000 1200

7. B4 28,000 1200

8. C1 38,000 1200

9. C2 38,000 1200

10. C3 20,000 1200

11. D1 38,000 1200

12. D2 35,000 1200

13. D3 20,000 1200

14. D4 28,000 1200

15. E1 38,000 1200

16. E2 38,000 1200

17. E3 20,000 1200

18. E4 28,000 1200

19. F3 20,000 1200

20. F4 28,000 1200nnn)That the monthly rental income obtained from the residential flat known as "Taraji Residence" erected on land reference Kiambaa/Ruaka/4923 is a benefit or profit accruing from assets believed to be proceed of crime and therefore its liable for forfeiture under POCAMLA.O.Land Reference DAGORETI/RIRUT /4756ooo)That investigations revealed that, vide sale agreement dated 18th December 2020 the 3rd Respondent purchased the above land from Rosemary Wanjiku Gathuku, the vendor at a purchase price of Kenya Shillings Twenty -five million (Ksh 25,000,000/=) which funds are suspected and believed to be illicit funds and proceeds of crime. (Annexed herewith and marked FM46 is a copy of the sale agreement).ppp)That the 1st Respondent who is a director of the 3rd Respondent agreed to purchase the above stated land at the said purchase price of Ksh 25,000,000/= which funds are suspected to be from illegitimate source. (Annexed herewith and marked FM47 is a copy of Rosemary Wanjiku Gathuku statement).qqq)That at the time of obtaining preservation orders the transfer of Land reference Dagoreti/Riruta/4756 had not been effected in favour of the 3 Respondent who is the beneficial owner of the said property.rrr)That the investigations established that the 1st, 3rd ,4th ,5th and 6th Respondents were used as conduit of money laundering by the 2nd Respondent to hide and conceal the source of funds and beneficial ownership of the assets contrary to Sections 3, 4 and 7 as read together with Section 16 of Proceeds of Crime and Anti-Money Laundering Act.sss)That further investigations established that the funds in issue are illicit funds and the assets were purchased with illicit funds hence are proceeds of crime liable for forfeiture under POCAMLA.ttt)That there are reasonable grounds to believe that the funds, assets and rental income or benefit accruing from some of the assets in issue are proceeds of crime liable for recovery pursuant to the Provisions of Proceeds of Crime and Anti-Money Laundering Act.uuu)That it is in the interest of justice that the orders of forfeiture be issued forfeiting the funds, assets, rental income or benefit accruing from some of the assets to Applicant on behalf of the State.vvv)That unless this Honourable Court grants the orders sought, the economic advantage derived from the commission of crimes and /or illegally acquired assets will continue to benefit a few to the disadvantage of the general public interest.www)That I swear this affidavit in support of the forfeiture application herein.xxx)That what is deponed to herein is true to the best of my knowledge, information and belief, save where the source of such information and belief has been indicated. 18. Additionally, the Applicant [Asset Recovery Agency] in advancing their case relied on the following filed documents:i)Supplementary Affidavit dated 14th February 2023 (in response to the 1st Respondent’s Replying Affidavit dated 05th December 2022)ii)Supplementary Affidavit dated 14th February 2023 (in response to the 2nd Respondent’s Replying Affidavit sworn on 9th December 2022)iii)Supplementary Affidavit dated 14th February 2023 (in response to the Replying Affidavit sworn by Richard W.O.O Ocholla on 9th December 2022)iv)Supplementary Affidavit dated 14th February 2023 (in response to the Replying Affidavit sworn by Abdulwalli Shariff Ahmed on 5th December 2022)v)Supplementary Affidavit dated 21st July 2023 (in response to the Interested Party Replying Affidavit sworn on 10th July 2023)

19. Also, the Applicant promotes its case by further relying of the following filed documents:i)Further Supplementary Affidavit dated 10th March 2023 (in response to the 1st Respondent’s Further Replying Affidavit dated 28th February 2023)ii)Further Supplementary Affidavit dated 10th March 2023 (in response to the 2nd Respondent’s Further Replying Affidavit dated 28th February 2023)iii)Further Supplementary Affidavit dated 10th March 2023 (in response to the 2nd Respondent’s Further Replying Affidavit dated 28th February 2023 sworn by Richard W.O Ocholla)iv)Further Supplementary Affidavit dated 10th March 2023 (in response to the Further Replying Affidavit dated 28th February 2023 sworn by Alice Wachuka Njunge)

20. In sum, it is the Applicant’s case that the 1st, 2nd, and 3rd Respondent’s bank accounts had received suspicious funds - through a scheme of money laundering - which are believed to be proceeds of crime. Also, that the preserved subject properties were unlawfully acquired and purchased with illicit funds, which properties are registered in the names of the 3rd, 4th ,5th, and 6th Respondents. To this end the Applicant annexed statements alleged to have been recorded by the 1st, 3rd, 4th, 5th and 6th Respondents in which they claimed to have been approached by one Ephantus Kimotho Kimani to pose as purchasers of apartments although they did not pay any consideration for them. (See annexture FM1, FM1A, FM2, FM6, FM7 to the Applicant’s supplementary affidavit dated 14th February 2023.

21. That the 2nd Respondent, used the illicit funds Ksh. 264,500,000/= paid in cash to purchase the eleven (11) apartments in Kileleshwa, Nairobi (Signature Apartments), from Ceytun East Africa Ltd; and registered the apartments in the name of the 3rd ,4th ,5th and 6th Respondents in a scheme of concealing the ownership.

22. That notably, the subject assets were purchased within a period of about three (3) months during the demonetization period in 2019, so as to launder the illegitimately obtained cash.

23. Additionally, the Applicant avers that the following assets were purchased with illicit funds – and registered in the name of the 3rd Respondent – hence proceeds of crime liable to forfeiture under the POCAMLA. The assets being: (i). House No.3 erected on Land Reference No. 1160/1190 (original number 1160/1189/1) Nairobi, Collingham Gardens; (ii). Land Reference Kiambaa/Ruaka/5500 situated in Ruaka area Kiambu County; (iii) Land Reference Kiambaa/Ruaka/4923 in Kiambu County; (iv). Land Reference Dagoreti/Riruta/4756.

24. The Applicant further contends that the allegations by the Respondents in their pleadings are false, a fabricated narrative on how they acquired the subject assets - which narrative contradicts their recorded statements.

25. Accordingly, the Applicant averred that based on the recorded statements, the narrative stated by the 1st, 3rd to 6th Respondents - in their responses herein - is an afterthought, false, contradicts their recorded statements, unsupported by any evidence, and depicts a scheme of money laundering by the Respondents.

26. The Applicant pointed out that on the materials presented by the Respondents, the total amount indicated in the invoices is not equivalent to cash deposits matched to the respective invoices; and several amounts were not demonstrated as being sourced from the said invoices, loans, Chama contributions, or friends. Further, that various alleged invoices are shown to be generated on dates before the contracts (allegedly derived from) were entered into.

27. Additionally, that the Respondents did not tender any evidence to demonstrate where or how they sourced the allegedly goods that they supplied to their claimed business clients/customers. That there is also, no evidence of business to the 3rd Respondent that warranted the 2nd Respondent to receive Kes. 2,600,000/= being 1% of generated business, which would make the referral business be of Kes. 260,000,000/= valued.

28. Notably, that the Kenya Revenue Authority confirmed the Respondents did not declare any income in the same period as alleged by the Respondent to have earned income from conducting businesses. That as per the tax laws and rules in Kenya, the Kenya Revenue Authority can keep tax records for a longer period than the 5 years requires of a tax payer.

29. To the Applicant, the variance and absurdities in the materials provided by the Respondents demonstrates that the documents are fabricated, misleading, and an afterthought - to suit an invented false narrative. Further, that the materials are not authenticated/certified by the alleged issuing authorities.

30. That any alleged loan borrowed by the 2nd Respondent from the 3rd Respondent for purchase of property is not substantiated by evidence, and that as of such period of time the 2nd Respondent had suspicious funds held by the 1st Respondent’s bank account. Also, that the 2nd Respondent had intermingled her allowances and salary earnings with suspicious cash/cheques deposits in an effort to conceal the source of such funds. That there was no evidence of fixed deposits that would earn the claimed interest.

31. The Applicant maintained that 1st, 3rd, 4th, 5th and 6th Respondents were used as conduit of money laundering by the 2nd Respondent to hide and conceal the source of funds and beneficial ownership of the properties. As per the Applicant, there are reasonable grounds and evidence that the assets are laundered and are proceeds of crime. That no evidence was adduce to demonstrate the legitimate source of funds; and that the Applicant has discharged the burden of proof, to the ends that the preserved assets are proceeds of crime liable for recovery by the them [Applicant] under POCAMLA.

32. CPL Fredrick Muriuki, for the Applicant, deponed opposing the allegations of threats, harassments, and intimidation by the Applicant’s officers to the Respondents. That there is no [evidence] report/registered complaint against the police officers or the Applicant’s officers to any authority or body; thus, that the allegations are false, fabricated, an afterthought, and unsubstantiated. It was maintained that in collecting the statements - from among others the Respondents - the same was given, recorded, and signed for, voluntarily.

33. As to the instant application, the Applicant maintained that the preservation orders obtained on 21st June, 2021 still subsist and have not lapsed; since the forfeiture Application was filed on 6th October, 2021 - which is within the statutory period of 90 days provided under Section 84 of the POCAMLA.

34. On the claims by the Interested Party, the Applicant stated that there is no evidence tendered to demonstrate the purported cash transaction between Zynmat Group of Companies Ltd and Light House Trading Company Ltd [3rd Respondent] for purchase of any assets; or of cash transaction to the 1st Respondent.

35. Further, that no evidence tendered to demonstrate the preserved properties as managed, sourced, or developed by the 3rd Respondent on behalf of Tunasco; and such claims are fabricated narrative with the intention to mislead. To the Applicant, the explanation given by the Interested Party on his alleged acquisition of the properties is false, invented, unsubstantiated, and misleading.

36. Further, that the allegation that the 3rd Respondent engaged the services of Soil and Water Masters Ltd to develop property is hearsay, false, and invented; considering no evidence has been adduced to demonstrate the engagement/construction by Soil and Water Masters Ltd.

37. The Applicant contends that the allegations by the Interested party that the Applicant seeks to irregularly take over his [Interested Party’s] property are false and unsubstantiated; given that the same properties are not registered in his name, and that the Respondents had not conceded to the ownership claim of the Interested Party, who has not substantiated the link between the suspect agreements and the preserved assets.

38. That the Respondents all stated that the apartments were purchased by Ephantus Kimotho Kimani, who denied ownership of the same; while the other persons who recorded their statements indicated that some of the properties were purchased in cash by Margaret Wanja Muthui [the 2nd Respondent].

39. According to the Applicant, the Interested Party or his companies will not suffer any substantial or irreparable damages for reason that he has not demonstrated he is the owner of the preserved assets or his interest in the assets.

Respondent’s Case 40. Conversely, in response to the Application, the Respondents’ opposed the Applicant’s assertions through the following filed documents:a)1st, 3rd to 6th Respondents’ Grounds of Opposition dated 3rd October, 2022b)1st Respondent’s Replying Affidavit dated 5th December, 2022c)2nd Respondent’s Replying Affidavit dated 9th December, 2022d)Richard W. O. Ocholla’s Replying Affidavit dated 9th December, 2022

41. Also, the Respondents’ filed the following documents to advance their case:a)1st Respondent’s Further Replying Affidavit dated 28th February, 2023b)2nd Respondent’s Further Replying Affidavit dated 28th February, 2023c)Richard W. O. Ocholla’s Further Replying Affidavit dated 28th February, 2023d)Alice Wacuke Njunge’s Further Replying Affidavit dated 28th February, 2023

42. As per the 1st, 3rd to 6th Respondents’ Grounds of Opposition, their case is that the forfeiture application is misconceived, bad in law, and incurably defective, and is for summary striking out. That the Applicant has failed to comply with mandatory provisions of the law in filing the forfeiture application. Also, that averments have been made in the forfeiture application that calls for cross examination of the deponents, with the right to cross-examine being provided under Section 55 of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA); and which the Respondents seek to exercise. And, that it is in the interest of justice that the witnesses be called for cross-examination as in the filed application for cross-examination.

43. In the main, the 1st, 3rd, to 6th Respondents’ case as deponed by the 1st Respondent is that Light House Limited [3rd Respondent] sourced for, developed, purchased, holds, and manages properties on behalf of Zynmat and Tunasco, and/or their director - Abdulwalli Shariff Ahmed [Interested Party] providing the cash – with the properties registered in the 3rd Respondent and nominees’ names. The properties being: Kiambaa/Ruaka/4923 [after purchase developed 24 units/apartments allegedly by Soil and Water Masters Limited]; Kiambaa/Ruaka/5500; and Dagoretti/Riruta/4756; Apartments units (C2, C3, C14, C15, C16, C22, C24, C26, C30, C34, and B20) at Signature Apartments,

44. As regard to the property known as L.R. No 1160/1190 (Collingham Gardens Limited), it is conceded that the same was purchased by Margaret Wanja Muthui [2nd Respondent]; but Light House Trading Limited [3rd Respondent] was registered as the owner because it [3rd Respondent] paid a total of Kshs. 39,000,000 being part of the purchase price, and a loan to Margaret Wanja Muthui [2nd Respondent].

45. That Shengli Engineering Construction (Group) Company Limited paid Kshs. 28,587,122 directly to Collingham Gardens Limited, and credit it to Light House Limited [3rd Respondent]; with Mercy Wambui Nyambura [5th Respondent] giving the sum of Kshs. 9,000,000 which was part of the cash given by Abdulwalli Shariff Ahmed - which she remitted through RTGS; and, the 1st Respondent gave Kshs. 1,412,878 towards the clearance of the purchase price; and Margaret Wanja Muthui [2nd Respondent] paying the remaining Kshs. 16,000,000. Notably, that all the receipts were issued in the name of the 3rd Respondent owing to the loan arrangement/agreement.

46. As regarding bank accounts, the 1st Respondent indicated as to how she received money and transferred money in and from her accounts. From the 2nd Respondent, and from 3rd Respondents accounts on funds received from business with Liaison Healthcare Limited and Tai Enterprises Limited. That she placed monies in her Co-operative bank fixed interest earning accounts, which has grown to substantial sum. In the end, the 1st Respondent denied that the 3rd Respondent was used as a conduit of money laundering.

47. Further, the Respondents claimed to have been subjected to harassment, threats, victimization, and intimidations by police officers/investigating officers. They denied the statements, and the contents their recorded; and signed statements.

48. On her part, the 2nd Respondent [Margaret Wanja Muthui] asserted that no evidence has been adduced to support the position that the funds in the bank accounts are illicit. She maintains that she has over the years generated substantial income from salaries and allowances earned from her previous and current employer. Also, that she has generated income by engaging in business activities over several years; particularly with: Fresh Choice Limited Company, Lavington Security Limited, and Urbanis Africa Limited Company.

49. The 2nd Respondent states that she kept money in an interest earning fixed deposit account at Co-operative Bank, for higher returns; and that would move money between that account and her salary account from time to time. In addition, that the 2nd Respondent received commission fee of Ksh. 2,600,000/= from the 1st Respondent being payment for business referrals.

50. It was stated that the 2nd Respondent made an arrangement with the 1st Respondent for a loan for part payment of purchase of property L.R. No 116011190 (Collingham Gardens Limited). The 2nd Respondent reiterated the position stated herein above by the 1st Respondent involving the purchase.

51. Further, the 2nd Respondent averred that failure to produce accounting records for the period 2007 to 2015 should prejudice her, as the law set out under Section 630 (2) of the Companies Act only provides for a document retention period of Seven (7) years. Also, that in regards to the cheques in contention, the banks are yet to provide her with the requested relevant information.

52. The 2nd Respondent denied to the allegations of failure to file tax returns, and to having defaulted in tax obligations. That any failure on her part to produce her tax records for the period 2007 to 2013, cannot be visited on her as the tax laws provides for a document retention period of five (5) years.

53. The 2nd Respondent confirmed to have commissioned an analysis of her and 1st Respondent’s bank and financial records - by an accounting firm - to illustrate the sources of incomes received into their bank accounts, investments made, and how the funds in the said banks accounts grew to the queried amounts.

54. The Accountant, CPA. Richard W.O Ocholla, in his sworn affidavits averred that he ascertained the main sources of funds paid into the accounts as: Salaries received from various employers over the years; Allowances from employers; Interest earned from Fixed Deposit Accounts at varied times within the period under review; and Receipts from other parties for the supply of goods and services, from Chama contributions, and other receipts from friends.

55. Notably, the Accountant contended that, the Project Management and Contract Services Consultancy Agreement signed between the 2nd and 3rd Respondent - where the 2nd Respondent would receive 1% of the value of the business generated from any connection or deals brought to the 3rd Respondent by her [2nd Respondent]. That the 2nd Respondent received Kshs. 2,600,000/= as under the agreement.

56. As such, that the explanation and analysis supported by the 1st and 2nd Respondents’ bank statements, gives a true and fair view of the transactions entered into by Margaret Wanja Muthui [2nd Respondent] and that funds received into her accounts were correctly earned by her.

Interested Party’s Case 57. The Interested Party in opposing the Application, and in supporting the Respondents case; filed Replying Affidavits dated 10th July, 2023 and dated 5th December, 2022.

58. The Interested Party’s case is that as a director of Zynmat and Tunaso, the companies [Zynmat and Tunasco] he entered into agreements with Lighthouse Trading Company Limited [3rd Respondent], where the 3rd Respondent was to source for, develop, purchase, hold and manage properties on their [Zynmat and Tunasco] behalf. That Zynmat and Tunasco provided Lighthouse Trading Company Limited, and the other nominees with the funds/cash to make the relevant purchases.

59. That, accordingly, the 3rd Respondent acting on behalf of Tunasco purchased Apartments C2, C3, C14, C15, C16, C22, C24, C26, C30, C34 and B20 at Signature Apartment; and had the same registered in the name of 3rd Respondents and other nominees.

60. Additionally, that after purchasing property LR Kiambaa/Ruaka/4923 the same was developed through construction of 24 units/apartments by Soil and Water Masters Limited; that Kiambaa/Ruaka/5500 and Dagoretti/Riruta/4756 were purchased with money belonging to the Interested Party on behalf of the Interested Party’s Tunasco and Zynmat companies but registered in the name of Light House Trading Company Limited [3rd Respondent]

61. The Interested Party states that it is the 2nd Respondent [Margaret Wanja] who introduced him to the 3rd Respondent [Light House Trading Company Limited]. That the 2nd Respondent also made payments contributions of Ksh. 5,000,000/= toward purchase of the properties. In essence, therefore, the Interested Party claims that the preserved properties belong to him and his companies.

Parties Submissions 62. Learned Counsel for the Applicant summed up the Plaintiff’s case through submissions dated 3rd April 2023 and supplementary submissions dated 30th June 2023 while those of the 1st, 3rd, 4th, 5th and 6th Respondents dated 2nd June, 2023 and those of the 2nd Respondents are dated 2nd June, 2023. Those of the Interested Party are dated 10th July, 2023. The same have all been considered alongside the other materials placed before this court by the parties.

Issue for Determination 63. Having considered the Originating Motion, the responses thereto, the annexures, the rival submissions, and the cited authorities, I find the issue for determination to be Whether the preserved assets are proceeds of crime liable for forfeiture to the state.

Analysis and Determination 64. The Applicant invokes the court’s jurisdiction under Section 90 (1) and 92 of the Proceeds of Crime and Anti-Money Laundering Act which state: -“90. Application for forfeiture order(1)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.92. Making of forfeiture order(1)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; or(b)is proceeds of crime.(2)The Court may, when it makes a forfeiture order or at any time thereafter, make any ancillary orders that it considers appropriate, including orders for and with respect to facilitating the transfer to the Government of property forfeited to it under such an order. (3)The absence of a person whose interest in property may be affected by a forfeiture order does not prevent the Court from making the order.

(4)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."

65. The term “Proceeds of crime” is defined under Section 2 of the Proceeds of Crime and Anti-Money Laundering Act as meaning: -“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”

66. In the case of Schabir Shaik & Others v State Case CCT 86/06[2008] ZACC 7 the court expressed itself as follows in regard to this wide ambit of the definition: -“... One of the reasons for the wide ambit of the definition of “proceeds of Crime” is, as the Supreme Court of Appeal noted, that sophisticated criminals will seek to avoid proceeds being confiscated by creating complex systems of “Camouflage.” The Supreme Court of Appeal held that a person who has benefited through the enrichment of a company as a result of a crime in which that person has an interest will have indirectly benefited from that crime.”

67. It is trite that in civil forfeiture proceedings, it is immaterial that the suspect has been charged, tried, or convicted of a criminal offence; see Section 92 (4) of the POCAMLA and the case of Assets Recovery Agency v Pamela Aboo; Ethics & Anti-Corruption Commission (Interested Party) [2018] eKLR where the court stated:-“63. Forfeiture proceedings are Civil in nature and that is why the standard of proof is on a balance of probabilities. See section 92(1) of POCAMLA. In the case of Director of Assets Recovery and Others, Republic vs Green & Others [2005] EWHC 3168 the court stated as follows:“In civil proceedings for recovery under part 5 of the Act the Director need not allege the commission of any specific criminal offence but must set out the matter that are alleged to constitute the particular kind or kinds of unlawful conduct by or in return for which the property was obtained.”

68. However, for a forfeiture order to issue, the Applicant must prove on a balance of probabilities that the property(ies) are proceeds of crime on a balance of probabilities, for a forfeiture order to issue. In the case of Republic v Director of Public Prosecutions & another Ex parte Patrick Ogola Onyango & 8 others [2016] eKLR Onguto J stated and I agree: -“150. It would appear to me therefore, and I so hold, that the prosecution need not prove, prior to any charges of money laundering, that there has existed a conviction or an affirmation of a predicate offence. The prosecution need not consequently show a determination by a court of law that there was theft or forgery or fraud that led to the acquisition of the proceeds or property the subject of the money laundering proceedings.151. The criminal origins of the proceeds may be proved in the same way as any other elements of an offence can be proved. The offence of money laundering must be deemed as ‘stand-alone’ offence. In proving that the proceeds or property are proceeds of crime even circumstantial evidence will be crucial. There is in my view no need to await any prior convictions of other offences before launching the prosecution of alleged money launderers. It is thus of little wonder that ‘proceeds of crime’ as defined under POCAMLA 2009 as “proceeds of crime” means 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 successfully 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” (emphasis)152. I have added the emphasis to illustrate that even the legislators appreciated instances when there may be no one to prosecute hence there may be no conviction for a predicate offence or crime. The need to prove a predicate offence before laying a charge of money laundering was effectively dispensed with.”

69. The Applicant’s case against the Respondents rests mainly on statements recorded during the investigation. In those statements the 1st, 4th, 5th and 6th Respondents allege to have been approached by one Ephantus Kimotho Kimani to pose as purchasers of the apartments C2, C31, C22, C34, C14, C15, C16, C26, C24, C15, C30, B20 in Kileleshwa as well as the other landed properties stated in the Originating Motion. The 1st, 4th, 5th and 6th Respondents are claimed to be related to the said Ephantus Kimotho Kimani by blood. They describe him invariously as a brother to their mother hence uncle or simply as an uncle.

70. The Applicant also sought to establish a nexus between those properties and the 2nd Respondent through statements recorded by the said Ephantus Kimotho Kimani who claims to have been introduced to the 2nd Respondent by his business partner Joram Mwangi through the statement of Joram Mwangi. Through the statement of one Necmi Karatas who alleges to have received payment of the properties from the 2nd Respondent, the 2nd Respondent is said to have paid in cash a sum of Kshs. 264,500,000/- carried in suit cases. Notably, the properties are said to have been purchased within a period of about three (3) months during the demonetization period in 2019.

71. Similarly, the 1st Respondent and the 3rd Respondent of which she was a co-director with her sister one Alice Wachuka, also claimed to have purchased the property and managed them on behalf of the 2nd Respondent who they claim was introduced to them by the said Ephantus Kimani Kimotho.

72. Although in their replying affidavits filed in response to the Originating Motion the 1st, 4th, 5th and 6th Respondents recanted their statements recorded during the investigation and stated that they acted on behalf of the Interested Party; that the properties were paid for by the Interested Party, it is my finding that the statements were so detailed as to have been a fabrication of the investigating officer. Placed side by side with their affidavits in response to the Originating Motion the statements recorded during the investigations appear to this court to be more plausible. This is given that no explanation was forthcoming and this more especially in regard to the 4th, 5th and 6th Respondents, as to why a “mama mboga” would come all the way from Githurai to pose as purchasers for properties on behalf of a person (Interested Party) who firstly they did not know and secondly as to why they would agree to be registered as owners of apartments which they had no interest in and which they had paid no consideration for.

73. What becomes clear from the materials placed before this court be it the statements recorded during the investigations or the replying affidavits is that the preserved properties do not belong to any of the Respondents. It is their own case that they do not lay claim to the same.

74. From a careful analysis of all the materials placed before this court by the Applicant although the 2nd Respondent denied it, there is a link between the landed properties in the names of the 1st, 3rd, 4th, 5th and 6th Respondents and the 2nd Respondent. Save for the 4th, 5th, 6th Respondent who do not seem to have met the 2nd Respondent there is a direct nexus between the 1st Respondent, her company the 3rd Respondent and the 2nd Respondent. There is evidence that the 1st and 2nd Respondent were introduced to each other through one Ephantus Kimotho Kimani who is also related to the 4th, 5th and 6th Respondents. As I have already stated although they recanted their statements the same are so detailed as to have been made up and this court has not been given any reason to doubt the same. Be that as it may all the Respondents made it clear that they make no claim to the apartments and landed properties save for the Collingham Gardens property. This then leads me to the question whet her the properties lawfully belong to the Interested Party.

75. It is my finding that the Interested Party did not offer any explanation as to the source of the funds used to acquire the properties. He also did not offer a satisfactory explanation for using persons such as the 4th, 5th and 6th Respondents who he had never met to purchase properties on his behalf. Why if all he did not want was for the properties to appear in the names of his companies, did he not use his own or the names of his own kin. His conduct in looking for a “mama mboga” and students is very telling. These are gullible parties who would not ask any questions and the purpose of using them was to disguise the real owner of the properties. The conduct of having the 1st, 3rd, 4th, 5th and 6th Respondents pose as purchasers and agents of the properties is circumstantial evidence that the funds used to acquire the properties were tainted.

76. As I have stated all the evidence before this court points to the purchaser and developer of the impugned properties as being the 2nd Respondent who as I have already found could not explain the source of the funds she used to acquire the same. It would be remiss of this court to find otherwise. As was observed by Mumbi Ngugi J, (as she then was) in the case of Assets Recovery Agency v Lillian Wanja Muthoni Mbogo & others-ACEC MISC. APPL No. 58 of 2018:“... money and assets are not plucked from the air or, like fruits, from trees. They can be traced to specific sources- salaries, businesses in which one sells specific items or goods, or provides professional services. There must be books of accounts, stock registers, local purchases orders and delivery notes showing to whom goods are sold, deliveries made and payment receipts showing from whom payment has been received.”

77. The circumstances of this case make it clear that the 1st, 3rd, 4th, 5th and 6th Respondents were used to launder tainted money. That is a crime under Section 3 of the POCAMLA and they would not be entitled to benefit from the tainted funds/assets and in their own words they have no intention of so doing. It is also my finding hat the Interested Party who is a late entrant to the proceedings was introduced so as to conceal the real owner of the properties. He is not the owner and he was not involved in their acquisition. The 1st and 2nd Respondents did not give a plausible explanation on the source of the funds in their accounts and the 2nd Respondent has also not explained the source of the funds she used to acquire so many properties which she has ended up denouncing, which properties that she has now denounced. The evidential burden which shifts to the Respondents and Interested Party under Section 112 of the Evidence Act has not been discharged.

78. In regard to the Collingham Gardens property there is contradiction as to how the same was acquired. On the one hand there is a memorandum of understanding “MWN 7” dated 6th July 2016 annexed to the 2nd Respondent’s further replying affidavit sworn on 28th February, 2023 and which implied that the Kshs. 39 million was a loan advanced to the 2nd Respondent by the 3rd Respondent for purchase of the said property, drawn between the 3rd Respondent and the 2nd Respondent for purchase of the property at Kshs. 55 million. This is negated by the statement by the 1st Respondent to the effect that it is the 2nd Respondent who deposited a fixed deposit raising it to a sum of about Kshs. 42 million.

79. It is the 1st Respondent’s contention that the funds are still in her account awaiting instructions from the 2nd Respondent as to what she should do with the same. The 1st Respondent’s version is corroborated by the bank statements of the 1st and 2nd Respondents annexed to the Applicant’s supporting affidavit. The 2nd Respondent also annexed bank statements which are not certified and asked this court to rely on the same and she cannot therefore be heard to criticize the Applicant for doing the same.

80. The 2nd Respondent and the Interested Party, and in particular the 2nd Respondent did not provide any evidence of the legitimacy of the sources of funds used to acquire the Collingham property. The 2nd Respondent adduced evidence that she engaged in various businesses from which she earned income hence the source of funds. She annexed a report which analysed the various transactions and bank statements. I have carefully perused the various annexures and reports but I am not persuaded that she derived the funds, in issue in this case, from those businesses. To begin with the records from the Kenya Revenue Authority Annexed to the Applicant’s Supplementary affidavit sworn by Fredrick Muriuki on 14th February 2023 (Annexure “FM1”) indicates that during the period of interest the 2nd Respondent declared income from employment but not from any other source. That she did not disclose income from other sources for that period is in my view, evidence that she was not engaged in any other business and that she had no other source of income other than her salaries and emoluments. Secondly her analysis which is intended to prove income from other sources was rebutted by the Applicant in the further Supplementary Affidavit of Fredrick Muriuki sworn on 10th March, 2023 which demonstrates inconsistencies and contradictions in regard to the cash deposits. It is also suspicious that the 2nd Respondent who alleges to have had her own trading companies would have preferred to transact using the 3rd Respondent, a shell company, which according to the 2nd Respondent had last been used for a tender of Kshs. 40,000/- to purchase landed property on her behalf. This is conduct usually employed by money launderers to disguise the source of funds and properties.

81. It is my finding therefore, that the Plaintiff has proved its case on a balance of probabilities and I find that the assets preserved by this court, are proceeds of crime liable to be forfeited to the State and I do so order.

82. Accordingly, I enter Judgment for the Plaintiff against the Respondents and the Interested Party as follows: -1)That an order be and is hereby issued declaring that the following funds and assets are proceeds of crime and are liable for forfeiture to the Government;a)Ksh 74,774,000. 00 held in fixed deposit account No. xxxxxxxxxxx at Co-operative bank of Kenya in the name of the 1st Respondent, Esther Wagio Njunge.b)Ksh 13,939,249. 99 held in fixed deposit account No.xxxxxxxxxxx at Co­operative bank of Kenya in the name of the 2nd Respondent, Margaret Wanja Muthui.c)Ksh 6,773,157. 80 held in account No. xxxxxxxxxxx at Co-operative bank of Kenya in the name of the 3rd Respondent, Light House Trading Company Ltd.d)Apartment numbers 820, Cl4, Cl5, C22, C24, C26, C30 & C34 erected on LR No. 209/21878 (Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 3rd Respondent.e)Apartment number C16 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 4th Respondent.f)Apartment number C2 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 5th Respondent.g)Apartment number C3 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 6th Respondent.h)House No.3 erected on LR No. 1160/1190(original number 1160/1189/1) Nairobi, Collingham gardens registered in the name of the 3rd Respondent.i)Land Reference Kiambaa/Ruaka/5500 situated in Ruaka area of Kiambu county registered in the name of the 3rd Respondent.j)Residential flat comprising of 24 apartments known as "Taraji Residence" erected on Land Reference Kiambaa/Ruaka/4923 in Kiambu County, registered in the name of the 3rd Respondent.k)Land Reference Dagoreti/Riruta/4756 purchased by the 3rd Respondent.2)That an order be and is hereby issued declaring that any rental income. benefit, profit accruing from the following properties are proceeds of crime and therefore liable for forfeiture to the Government.a)Apartment numbers B20, C14, Cl5, C22, C24, C26, C30 & C34 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 3rd Respondent.b)Apartment number C16 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 4th Respondent.c)Apartment number C2 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi, (Signature Apartments), registered in the name of the 5th Respondent.d)Apartment number C3 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 6th Respondent.e)Residential flat comprising of 24 apartments known as "Taraji Residence" erected on Land Reference Kiambaa/Ruaka/4923 in Kiambu County, registered in the name of the 3rd Respondent.3)That vesting orders be and are hereby issued transferring the following assets to the Applicant;a)Apartment numbers B20, C14, C15, C22, C24, C26, C30 & C34 erected on LR No. 209/21878 (Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 3rd Respondent.b)Apartment number C16 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 4th Respondent.c)Apartment number C2 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 5th Respondent.d)Apartment number C3 erected on LR No. 209/21878(Original No. 209/7752), Kileleshwa, Nairobi (Signature Apartments), registered in the name of the 6th Respondent.e)(sic) Residential flat comprising of 24 apartments known as "Taraji Residence" erected on Land Reference Kiambaa/Ruaka/4923 in Kiambu County, registered in the name of the 3rd Respondent.f)House No.3 erected on LR No. 1160/1190(original number 1160/1189/1) Nairobi, Collingham gardens, registered in the name of the 3rd Respondent.g)Land Reference Kiambaa/Ruaka/5500 situated in Ruaka area of Kiambu county registered in the name of the 3rd Respondent.h)Land Reference Dagoreti/Riruta/4756 purchased by the 3rd Respondent.4)That an order be and is hereby issued that the above stated funds, assets, rental income, benefit, profit accruing from the assets stated in prayers 1 & 2 be forfeited to the Government and transferred to the Applicant.5)That the costs of these proceedings shall be borne by the Respondents.

SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 16TH DAY OF NOVEMBER 2023. ...............E N MAINAJUDGE