The High Court in Nairobi has dismissed an application by the Assets Recovery Agency (ARA) seeking to forfeit over Ksh16 million and USD 67,906 (about Ksh10 million) held in ten bank accounts belonging to former Nairobi Governor Mike Mbuvi Sonko
Justice Nixon Sifuna of the Anti-Corruption and Economic Crimes Division ruled that the agency failed to prove the funds were proceeds of crime.
The judge added that the agency’s investigations were “rash, selective, and riddled with gaps,” and could not sustain a civil forfeiture claim.
He concurred with Sonko, stating that indeed he defended deposits as legitimate business and land sale proceeds.
ARA had argued that the deposits, spread across Sonko’s accounts at Equity Bank, Co-operative Bank and Diamond Trust Bank, were linked to corruption at City Hall and formed part of a “complex money laundering scheme.”
“The Motion states that there are reasonable grounds to believe that those funds are proceeds of crime. Reason for which the Motion has urged this Court to declare those funds proceeds of crime; and order that they be forfeited to the Kenya Government,” the judgment states.
In its case, ARA relied on an affidavit by Corporal Sautet Jeremiah, who claimed that between 2017 and 2019, Sonko’s accounts received “huge suspicious cash deposits and transfers” which were a “clear case of splitting, smurfing and placement of funds into the banking system.”
But the court criticised the agency for producing no statements from individuals allegedly involved in the flagged transactions and for only presenting bank records from August 2017, when Sonko became Governor.
“That selective approach is either dishonest or rash, oppressive and skewed to propound the Applicant’s narrative. It amounts to cherry-picking of data, as opposed to an objective consumption of the entire available data,” the judge ruled.
Sonko, in a replying affidavit dated November 7, 2023, dismissed the claims, saying he had legitimate business dealings long before entering politics.
The former governor through, Lawyer Harrison Kinyanjui cited earnings from matatus, nightclubs, restaurants, real estate and cyber cafes, as well as proceeds from land sales in Kwale and Kajiado worth hundreds of millions of shillings.
“I had for long had various income generating businesses, and it was normal and usual for my bank Accounts to receive huge cash deposits… I never at the time thought that I will later be called upon to explain these proceeds,” Sonko stated.
The judge found that ARA had not proved its case on a balance of probabilities as required under the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA).
“Investigation is not a pastime activity to be undertaken lazily, leisurely, lousily and rashly. It is a solemn duty for which the investigator is being paid,” the court stressed.
Consequently, the application was dismissed and the funds, totalling about Ksh26 million, remain under Sonko’s control.
