The Supreme Court has ruled that the Assets Recovery Agency (ARA) must prove a link between property and criminal activity before seeking forfeiture orders in a landmark judgment that could reshape asset recovery cases in Kenya.

🇰🇪 Breaking It Down

In a judgment delivered on Friday, June 19, the apex court dismissed appeals by the ARA and the Ethics and Anti-Corruption Commission (EACC) seeking to recover Ksh19.6 million held in bank accounts belonging to a Kenyan, Pamela Aboo.

The court upheld an earlier Court of Appeal decision, finding that investigators failed to establish a relationship between the funds and any criminal activity as required under the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA).

The judges, according to court documents reviewed by Kenyans.co.ke , held that forfeiture under POCAMLA can only be made against property associated with the commission of a crime or property that constitutes proceeds of crime.

📌 What You Need to Know

"It is therefore a requirement that the ARA has to establish a nexus between the subject matter of forfeiture and a crime or its intended commission when seeking an order of forfeiture," the court stated.

According to the judgment, the existence of a crime remains central in proceedings brought under POCAMLA , meaning investigators must first provide credible evidence linking assets to unlawful conduct before seeking their recovery.

The court said the burden of proof does not automatically shift to a person just because their assets are being questioned.

Instead, the agency seeking forfeiture must first provide enough evidence to show the property is linked to criminal activity before asking the owner to explain where it came from.

However, the Supreme Court also noted that a criminal conviction is not required for forfeiture cases to succeed.

"The fact that the accused is eventually acquitted of the same does not necessarily insulate the property from forfeiture," the judges noted.

📰 Source: Kenyans.co.ke