Muriithi & 4 others v Assets Recovery Agency [2022] KEHC 10004 (KLR)

Muriithi & 4 others v Assets Recovery Agency (Anti-corruption and Economic Crimes Miscellaneous E018 of 2021) [2022] KEHC 10004 (KLR) (Anti-Corruption and Economic Crimes) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10004 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-corruption and Economic Crimes Miscellaneous E018 of 2021

EN Maina, J

July 14, 2022

Between

Peter Wangai Muriithi

1st Applicant

Goldenscape Trees Africa Limited

2nd Applicant

Goldenscape Greenhouse Limited

3rd Applicant

Goldenscape Group Limited

4th Applicant

Silverstone Properties Limited

5th Applicant

and

Assets Recovery Agency

Respondent

Ruling

Introduction 1. The 1st to 5th Respondents/Applicants (jointly referred to as “the Respondents/Applicants”) filed a Notice of Motion dated 12th October 2021 under Sections 83 and 84 of the Proceeds of Crime and Anti Money Laundering Act, 2009, and Order 51 of theCivil Procedure Rules which seeks the following orders:“1)Spent2. This Honourable Court be and is hereby pleased to make a declaration that the preservation orders issued by the Honourable Court (Hon. Justice Wakiaga J.) on 15th June 2021 have lapsed and/or expired by operation of Section 84 of the Proceeds of Crime and Anti-Money Laundering Act, No. 9 of 2009. 3.This Honourable Court be and is hereby pleased to order the removal and/or lifting of the preservation order, any caveats and/or restrictions placed on or against the registers of the following properties at the relevant land registries:a.LR No. Marmanet/North Rimuruti Block2 (Ndurumo) 553 registred in the name Peter Wangaii Muriithi.b.LR No. Marmanet/North Rimuruti Block2 (Ndurumo) 624 registred in the name Peter Wangaii Muriithi.c.LR No.Marmanet/North Rimuruti Block2 (Ndurumo) 625 registred in the name Peter Wangaii Muriithi.d.LR No.Marmanet/North Rimuruti Block2 (Ndurumo) 673 registred in the name Peter Wangaii Muriithi.e.LR No. Ngong/Ngong 6198 registered in the name of Silverstone Properties Limited.f.LR No. Ngong/Ngong57241 registered in the name of Silverstone Properties Limited.g.LR No. Ngong/Ngong57240 registered in the name of Silverstone Properties Limited.h.LR No. Ngong/Ngong57239 registered in the name of Silverstone Properties Limited.i.LR No. Ngong/Ngong57237 registered in the name of Silverstone Properties Limited.j.LR No. Ngong/Ngong57238 registered in the name of Silverstone Properties Limited.k.LR No. Ngong/Ngong57242 registered in the name of Silverstone Properties Limited.l.LR No. Ngong/Ngong2000 purchased by Silverstone Properties Limited the 4th Respondent vide sale agreement dated 13th February 2019. m.LR No. Ngong/Ngong9454 purchased by Silverstone Properties Limited the 4th Respondent vide sale agreement.n.LR No. Ngong/Ngong94454 purchased by Peter Wangai Muriithithe 1st Respondent vide a sale agreement dated 16th October 2018. o.Plot number 523 E-xp & D Settlement Scheme purchased by Goldenscape Group Ltdthe 5th Respondent vide a sale agreement dated 11th March 2019. 4. This Honourable Court be and is hereby pleased to order the removal and lifting of the preservation order, any caveats and/or restrictions placed on or against the registers of the following motor vehicles registered in the name of the 1st Respondent at the National Transport and Safety Authority (NTSA) registry or any other registry: -

a.Motor vehicle registration number KCS 572 N Isuzu Comob.Motor vehicle registration number KCN 336F Toyota Proboxc.Motor vehicle registration number KCL 804D ISUZU BDG-NPR85ARd.Motor vehicle registration number KCB 733K NISSAN CBA-J31e.Motor vehicle registration number KBQ 637J, ISUZU FRR33 5. This Honourable Court be and is hereby pleased to order the removal and lifting of the preservation order, any caveats and/or restrictions placed on or against the registers of the following motorcycles registered in the name of the 1st Respondent at the National Transport and Safety Authority (NTSA) registry or any other registry: -

a.Motor vehicle registration number KMEQ 497A Honda Ace125b.Motor vehicle registration number KMEQ 494A Honda Ace125c.Motor vehicle registration number KMEQ 646R Honda Ace125d.Motor vehicle registration number KMEQ 646R (sic) Honda Ace 125e.Motor vehicle registration number KMEQ 609D Honda Ace 125 6. Costs of this Application be borne by the Applicant.”

2. The Application is based on the grounds stated on the face of it as well as the supporting affidavit sworn on behalf of the Applicants/Respondents summarized as follows: That on 15th June 2021 this court, upon application by the Applicant/Respondent issued preservation orders on in respect of the 1st to 5th Respondents/Applicants’ properties and assets that are the subject of the Application; that the court further ordered the respective Land Registrars and the Director General National Transport and Safety Authority (NTSA) to register caveats on the land parcels, motor vehicles, and motorcycles, respectively. The Applicants contend that the Applicant/Respondent failed to give notice of the preservation order to the 1st to 5th Respondents within the statutory timeline of 21 days from the date of the Order contrary to the provisions of Section 83 of the Proceeds of Crimes and Anti-Money Laundering Act. They contend that the Applicant published the preservation order in the Kenya Gazette on 2nd July 2021 via Gazette Notice No. 6547 (Vol. CXXIII- No. 141) and hence by operation of Section 84 of the Proceeds of Crime and Anti-Money Laundering Act the order lapsed on 30th September 2021 which was the 90th day after publication in the Kenya Gazette. They aver therefore that there is no Application for forfeiture orders pending before this court concerning the properties preserved on 15th June 2021 as ultimately the preservation orders have lapsed or expired and it is in the interests of justice that the court grants the orders sought.

3. In the written submissions dated 6th May 2022 Learned Counsel for the 1st to 5th Respondents/Applicants framed three issues for determination namely:- Whether the preservation orders issued by this court on 15th June 2021 have lapsed or expired by operation of Section 84 of POCAMLA.

Whether this Honourable Court has the jurisdiction to extend the period for the validity of the preservation order.

Whether the orders sought in the Notice of Motion dated 12th October 2021 ought to be granted.

4. Counsel reiterate the grounds for the application and submitted that the preservation order lapsed on 30th September 2021; that while computing the 90 days’ validity period, they took into account Order 50 Rule 8 of the Civil Procedure Rules, 2010, which provides that the computation excludes the first day but includes the last day of the period and accordingly, the Agency’s admission that the forfeiture application was filed on 1st October and the copy of the forfeiture application annexed to the affidavit of CPL Jeremiah Sautet is proof that the forfeiture application was filed outside the statutory timeline of 90 days.

5. Counsel stated that the exclusion of a public holiday from the computation of the 90 days under Order 50 Rule 2 is not applicable in the circumstances of this case as such exclusion applies only to timelines that are less than 6 days. Counsel submitted that the public holiday and weekends ought to be counted in the 90 days. To this end Counsel cited the case of Re Estate of Kinyanjui (Deceased) [2017] eKLR.

6. Counsel further submitted that the Applicant/Respondent introduced new facts in their written submissions by arguing that the preservation order was gazetted on 15th July 2021. They contend that the argument is unsupported by evidence hence should be ignored. For this Learned Counsel for the Respondents/Applicants cited the case of Republic vs Chairman Public Procurement Administrative Review Board & another ex parte Zapkass Consulting and Training Limited and another[2014] eKLR.

7. Counsel also contended that this court does not have the jurisdiction to extend the validity of the preservation order upon its expiry; that this court is a specialized court and must exercise its powers within the confines of the Constitutionand the Proceeds of Crime and Anti-Money Laundering Act and that Section 27 of the Limitation of Actions Act and Section 84 of the Proceeds of Crime and Anti-Money Laundering Act do not give the court jurisdiction to extend the life of preservation orders. To buttress the aforegoing submission Counsel placed reliance on the case of Samuel Kamau & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR and the case of Seth Ambusini v Independent Electoral and Boundaries Commission & others [2018] eKLR

8. Counsel asserted that because of the lapse of the preservation order, the same is void and of no legal consequence and the caveats against the properties subject to the order should automatically be lifted. Counsel urged this court to make a declaration in that respect and grant an order directing the respective Lands Registrars and the Director-General NTSA to lift the caveats against the properties. Counsel cited the case of Omega Enterprises (Kenya) Limited v Kenya Tourist Development Corporation Limited & 2 others [1998] eKLR.

9. Finally, Counsel stated that the Applicant/Respondent violated Section 83 of the Proceeds of Crime and Anti-Money Laundering Act by failing to serve the Respondents with a notice of the preservation order within 21 days; that these proceedings were instituted in bad faith to vex, harass, persecute and frustrate the Respondents/Applicants and that the preservation order has crushed the business and operations of the Respondents/Applicants as well as the performance of their contractual obligations to 3rd parties. Placing further reliance on the case ofRepublic v Principal Secretary Ministry of Defence ex parte George Kariuki Waithaka [2018] eKLR Counsel urged this court to allow the Application.

Response of the Applicant/Respondent 10. The Applicant/Respondent opposed the Application through the affidavit of CPL. Jeremiah Sautet, sworn on 3rd November 2021.

11. The Applicant/Respondent conceded that this court granted a preservation order in respect of the suit properties on 15th June 2021 and stated that the Agency caused the same to be published in the Kenya Gazette on 2nd July 2021. It avers that the Agency filed an application HCACEC No. E027 of 2021 for forfeiture of the subject properties on 1st October 2021 and the same was duly served on the Respondents and the Interested Parties. They aver therefore that the preservation order is still valid by dint of the existence of a forfeiture application and it is in the interest of justice that the same remains in force. They contend that the instant application is superfluous and it ought to be dismissed for lack of merit.

12. In the written submissions dated 2nd December 2021 and further submissions dated 4th May 2022, the Applicant/Respondent reiterates that the preservation order was duly gazetted and that they subsequently filed an application for forfeiture in HCACEC E027/2021; that they are well within the timelines provided in Section 84 of the Proceeds of Crime and Anti-Money Laundering Act. They contend that the ninety-day period started to run from 6th July 2021 when they gazetted the order with the first day being 7th July 2021 and the last day being Tuesday 5th October 2021. They contend that since they filed the forfeiture application on 1st October 2021 the preservation orders have not lapsed and have never lapsed and this court ought to hold as much and dismiss the application.

13. The Applicant/Respondent was silent on the issue of service of the preservation order.

Issues for determination 14. Whether the preservation order issued herein on 15th June 2021 lapsed by effluxion of time and if so, what are the appropriate reliefs?

Analysis and determination 15. This Application invokes Section 84 of the Proceeds of Crime and Anti-Money Laundering Act, which stipulates the duration of a preservation order. The section states:-“84. Duration of preservation ordersA preservation order shall expire ninety days after the date on which notice of the making of the order is published in the Gazette, unless—a.there is an application for a forfeiture order pending before the court in respect of the property subject to the preservation order;b.there is an unsatisfied forfeiture order in force concerning the property subject to the preservation order; orc.the order is rescinded before the expiry of that period.” [

16. It is clear from the wording of the section that time starts running from the date of the gazettement of the preservation order but not from the date of the issuance of the order by the court. That the preservation order was gazetted on 2nd July, 2021 is not in doubt as that is the date of the gazette in which the order was gazetted. On this I am in agreement with Counsel for the Respondents/Applicants. Ninety days from 2nd July 2021 lapsed on 30th September, 2022. I say so in deference to Section 57 (a) of the Interpretation and General Provisions Act Cap 2 which states:-“57. Computation of timeIn computing time for the purposes of a written law, unless the contrary intention appears—a.a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;b.if the last day of the period is Sunday or a public holiday or all official non-working days (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day;c.where an act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterward, not being an excluded day;d.where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time.”

17. Order 50 Rule 8 of the Civil Procedure Rules is also explicit on the issue of computation of time. The rule states:-“8. In any case in which any particular number of days not expressed to be clear days is prescribed under these Rules or by an order or direction of the court, the same shall be reckoned exclusively of the first day and inclusively of the last day.”

18. Whereas the gazette notice is dated 6th July 2021, several days post its publication on 2nd July 2021 it is clear that its publication was on 2nd July 2021 and that is the date that this court must take into consideration when determining this application. On this I agree with Counsel for the Respondents/Applicants that a party ought not to approbate and reprobate as the Applicant/Respondent has attempted to do in regard to the date of gazettement.

19. It has always been the case that when it comes to expiry the same takes place at midnight of the last day therefore the order lapsed at midnight on 30th September, 2021. The forfeiture application in HCACEC E027/2021 though dated 30th September 2021 was filed in court on 1st October 2021 on the morning of the date of the lapse of the preservation order. It is noteworthy that Section 84 of the Proceeds of Crime and Anti-Money Laundering Act does not specify the time within which the forfeiture application ought to be filed. In other words, there is no requirement in law that the forfeiture application must be filed within the duration of the preservation order. My own interpretation is that as provided in the Act the order lapses at the end of the 90 days unless a forfeiture application is filed which in effect means that unless a forfeiture application is filed at the end of the ninety days then the preservation order lapses. It is my finding therefore that since a forfeiture application was filed on 1st October, 2021 the preservation orders did not lapse. The authorities cited by Counsel for the applicant/Respondent, do not with due respect, come to the aid of the Respondents/Applicants as firstly they do not concern the Proceeds of Crime and Anti-Money Laundering Act and secondly because the issue of extension of time has not arisen in this case as there is no application to that effect. Time in election petitions is of course cast in stone as those are not ordinary civil cases but actions in sui generis and are governed under their own rules. The provisions of the Limitation of Actions Act are clearly also not applicable to this case.

20. In regard to the issue of non-service of the notice within 21 days as provided under Section 83(1) of the Proceeds of Crime and Anti-Money Laundering Act my finding is that whereas this court does not condone such conduct, the Respondents/Applicants have not demonstrated that they have suffered any prejudice on account of the non-service within 21 days. They have all through the proceedings being able to ventilate their rights in regard to these proceedings despite knowledge of the same having come to their notice outside of the 21 days period. I do not therefore find the late service fatal to the proceedings.

21. In the upshot the application is dismissed in its entirety, costs shall be in the cause.

SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI THIS 14THDAY OF JULY, 2022. E N MAINAJUDGE