In a judgment delivered on Friday, a five-judge bench led by Chief Justice Martha Koome dismissed appeals by the Ethics and Anti-Corruption Commission (EACC) and the Assets Recovery Agency (ARA), upholding a Court of Appeal decision in Aboo’s favour, whose three Equity Bank accounts holding a total of Sh19,688,152.35 had been targeted for forfeiture by the State.

Aboo, who is the spouse of a former Kenya Revenue Authority (KRA) employee, had contested the attempted forfeiture of the funds, which investigators alleged were proceeds of crime.

The Supreme Court affirmed that investigators must establish a clear link between suspected criminal activity and any property targeted for forfeiture under the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA).

At the centre of the dispute were three Equity Bank accounts at the Donholm branch containing a combined Sh19,688,152.35.

The ARA moved to recover the funds after receiving information in March 2017 that the money was suspected to be proceeds of crime.

The agency linked the funds to Aboo’s husband, Alex Mukhwana Khisa, then a KRA officer who had been investigated over allegations that he solicited bribes from clearing and forwarding agents.

However, the EACC’s parallel investigations into Khisa were later closed, while preservation orders obtained against him were vacated in January 2018.

In response to inquiries on the source of the funds, Aboo said the money came from her businesses dealing in agricultural produce, transport, perfumes and cereals. She also provided investigators with the identities of her business associates

The Supreme Court found that the agencies failed to sufficiently investigate or challenge her explanation.

“Instead of discounting the respondent’s explanation by investigating these sources, all the 2nd appellant stated in rebuttal was that the respondent had not produced any receipts to back up her claim,” CJ Koome led bench said

The bench held that an element of crime must form the basis of any forfeiture proceedings.

“A reading of the foregoing provisions leaves no doubt that an order for forfeiture under POCAMLA can only be made against property which, in one way or another, is associated with the commission of a crime, or is a proceed of crime. The incidence of crime remains central to such forfeiture proceedings,” the court held.

“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 judges noted that the agencies’ suspicions were largely based on the existence of substantial amounts of money in Aboo’s accounts and allegations previously made against her husband.

They questioned the evidence linking the funds to criminal activity.

“What is there on record to show that the monies in question were obtained by Aboo as a result of an offence or criminal activity?” the judges asked.

They added: “Where is the evidence on record to support such an allegation by the very institution that closed further investigations into the accusations of bribery against the respondent’s husband? Where is the incidence of crime in the entire chain of events that triggered the forfeiture proceedings?”

The Supreme Court further held that where an agency alleges that property constitutes proceeds of crime generated by a third party, that person should be joined in the proceedings.

“We are of the considered view that the requirement for a nexus between the impugned property and the alleged criminal conduct under the forfeiture scheme in POCAMLA makes it critical that the person alleged to have generated the proceeds of crime, in this case, the respondent’s husband, ought to be joined to the proceedings,” the court stated.

The ruling is expected to shape future civil asset recovery proceedings by clarifying that although forfeiture cases are civil in nature, investigators must still demonstrate a connection between property and criminal activity before assets can be seized by the State.

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That , in essence, was the argument mounted Friday before a High Court bench hearing a constitutional challenge by the country’s top most senior judges against complaints before the Judicial Service Commission.

Senior Counsel George Oraro, appearing for Chief Justice Martha Koome before Justices Charles Kariuki, Lawrence Mugambi and Bahati Mwamuye at the Milimani Law Courts, posed what he described as the unavoidable constitutional paradox at the heart of the matter.

“Where a judge makes an error, the only remedy known to the law is an appeal. But the Constitution is clear that the Supreme Court is the final court. The JSC has no power to review or correct decisions of the Supreme Court.”

The argument was directed at complaints lodged with the JSC by former Law Society of Kenya President Nelson Havi, Senior Counsel Ahmednasir Abdullahi and former Cabinet Secretary Raphael Tuju, all of whom have raised grievances arising from Supreme Court proceedings involving them or their clients.

Oraro submitted that the complaints, instead of identifying grounds for removal recognised under Article 168 of the Constitution such as mental incapacity, bankruptcy, corruption or gross misconduct, are entirely anchored on dissatisfaction with judicial determinations.

He told the bench that the JSC is being invited to do something the Constitution does not permit: interrogate the quality, reasoning and outcome of decisions made by the apex court, thereby converting a disciplinary body into a de facto court of appeal over the Supreme Court.

“What is being invited is a review of rulings and judges through the back door.”

To drive home the structural danger of this, Oraro drew on comparative constitutional jurisprudence, citing Justice Brown and Justice Jackson in the US Supreme Court’s Brown v. Allen, where the court articulated the principle that it is not final because it is infallible, it is infallible because it is final.

He argued the same principle applies in Kenya under the constitutional architecture.

Oraro also cited the final report of the Constitution of Kenya Review Commission, which formed the intellectual scaffolding for the current Constitution, noting that the report explicitly stated that the people of Kenya wanted a judiciary independent and free from interference by any person or institution, both operationally and institutionally.

He further invoked the Ugandan Supreme Court precedent, which, he said, affirmed that judicial review applies to judicial acts, not to the courts themselves, and that it is an improper exercise of judicial power, not mere legal error, that can ground accountability.

Critically, Oraro argued that when a decision is made by a properly constituted Supreme Court bench, sitting as five judges as required by the Constitution, it is not the decision of any individual judge but the decision of the court as an institution.

To hold individual judges accountable through the JSC for that institutional decision, he submitted, is constitutionally irrational.

He told the bench that allowing the JSC to proceed along this path would not only violate the principle of finality,derived from the Latin maxim interest reipublicae ut sit finis litium (it is in the interest of the state that there be an end to litigation), but would also effectively allow the JSC to do what the Constitution reserves only for the Supreme Court itself: the power to overrule its own decisions.

“If that is not what the people of Kenya want, the task is to amend the Constitution. It is not to go through the JSC to remove all the judges of the Supreme Court.”

DCJ Mwilu, through advocate Winnie Bett, reinforced the argument with a warning about what she called institutional design, the deliberate constitutional choices that define what each organ can and cannot do.

“This matter is not about whether the Supreme Court was right or wrong. It is about institutional design. It is about whether this institution permits, at its very inception, what would fundamentally undermine that design.”

Bett also submitted that the absence of properly enacted disciplinary regulations for superior court judges further invalidates the JSC’s proceedings.

She argued that without such regulations, the commission is acting outside a lawful framework, and subjecting the judges to that process is an injury in itself.

The JSC’s counsel Issa Mansur countered that the commission had acted within its constitutional mandate to receive and investigate complaints and urged the court to allow the process to run before judicial intervention.

“The applications before this court are premature, misconceived, and an abuse of the court process. We urge the court to dismiss them and allow the Judicial Service Commission to discharge its constitutional mandate.”

The court reserved its decision on the petitions  to quash the complaints and halt proceedings.

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