Court Orders ARA to Return Sh34m Cash, Luxury Cars to Trader

The Court of Appeal has ruled in favor of businessman Anthony Kepha Odiero, ordering the Assets Recovery Agency (ARA) to return Sh34 million held in a bank account and two luxury vehicles. The court found that the ARA failed to prove the assets were proceeds of crime, overturning a High Court judgment that had declared the assets liable to forfeiture.

The ARA had raised questions about the volume and nature of transactions in Mr. Odiero's accounts, but the court found that the agency had not identified any specific criminal enterprise, predicate offence, or money laundering scheme. The judges emphasized that the law requires proof of a clear connection between the assets and unlawful activity, and that suspicion alone is insufficient grounds for forfeiture.

The ARA had told the court that investigations into allegations of money laundering and drug trafficking against Mr. Odiero revealed that he had acquired assets using proceeds of crime. However, the agency admitted that it had not established the source of the money. Mr. Odiero explained that he had accumulated his wealth through various business ventures and international consultancy engagements.

Mr. Odiero described himself as a businessman and Director General for East and Central Africa of the TransPacific Africa Chamber of Commerce and Industry. He said he was a director of three companies: AIB Associates Limited, AIB Petals Limited, and Insurance Brokers Limited. He maintained that his businesses involved exporting fresh-cut flowers, insurance brokerage, and international consultancy.

The High Court had questioned why Mr. Odiero would travel to European and Asian countries to collect payments in cash before returning to Kenya to deposit the money. However, the Court of Appeal found that Mr. Odiero had presented evidence explaining the sources of the funds through his business and consultancy engagements, as well as documentation relating to the acquisition of the vehicles.

The judges emphasized that under the Proceeds of Crime and Anti-Money Laundering Act, the ARA bears the initial burden of proving that property targeted for forfeiture is proceeds of crime. The court faulted the High Court for failing to distinguish between forfeiture proceedings under the Act and unexplained assets recovery proceedings under the Anti-Corruption and Economic Crimes Act.

The court's decision highlights the importance of establishing a clear connection between assets and unlawful activity before forfeiture can occur. The ARA's failure to provide such evidence means that Mr. Odiero's assets will be returned to him. The court's ruling also underscores the need for the ARA to follow due process and ensure that its actions are based on evidence rather than suspicion.

Key points

• The Court of Appeal has ordered the Assets Recovery Agency to return Sh34 million and two luxury vehicles to a businessman due to lack of evidence linking the assets to criminal activity.