EACC moves to apex court in Sh19m fight with businesswoman

The anti-graft body has been allowed to move to the Supreme Court, in a fight with a businesswoman, who could not explain how she made Sh19 million, raising suspicion that the funds were kickbacks deposited on behalf of her husband, a former employee of Kenya Revenue Authority (KRA).

The Court of Appeal allowed the Ethics and Anti-Corruption Commission (EACC) and Assets Recovery Agency (ARA) to move to the apex court, after the High Court in a judgement last year, allowed Ms Pamela Aboo to get back the Sh19.6 million, which the agencies argued were proceeds of crime.

The ARA had submitted that the consequence of the judgment was to constrain or cripple the country’s fight against corruption and money laundering, among other crimes.

The court also heard that the judgment placed an “unrealistically high burden of proof” on the two institutions, and which was not founded on law and ignored the complex and clandestine nature of corruption and economic crimes.

“We have no doubt in our minds that the issues involved in the intended appeal are not private matters relevant and important only to Ms Aboo, ARA and EACC,” Justices Asike Makhandia, Kathurima M’Inoti and Mumbi Ngugi said.

“We are satisfied that the ARA and EACC have demonstrated that the issues they wish to be considered by the apex court transcend the circumstances of the parties herein and have a significant bearing on the public interest,” added the judges.

In the case, ARA had argued that Ms Aboo could not explain how Sh19.6 million, was deposited in her three bank accounts.

The agency successfully argued that the businesswoman, who said she dealt in cereals, could not explain the source of the funds and that the deposits were made by her husband—Alex Mukhwana Khisa—who then worked with the Kenya Revenue Authority, customs department, in Mombasa.

The court said how to draw the correct balance between protecting the rights and freedoms of the individual and at the same time “facilitating the detection and prosecution of debilitating crimes”, was in their view, deserved the benefit of the guidelines of the apex court.

When questioned, the investigators said the businesswoman did not even know the amount of money in her accounts and failed to produce any business license, permits or compliance documents, to confirm the existence of any legal business or trade.

The agency suspected that the accounts were being used as a conduit for depositing and transferring proceeds of crime.

High Court judge Hedwig Ong’udi ruled that Ms Aboo’s explanation of the source of the money, as proceeds from her transport, banana and sugarcane business as well as trading in cereals in Busia, did not add up.

On average the daily deposits in her account were between Sh100,000, and Sh400,000. And while she traded in Busia and Nairobi, the deposits were made in Mombasa.

After losing the case and being ordered to forfeit the money to the State, Ms Aboo appealed and the judgment was overturned in a majority decision.

In the decision, the appellate court said ARA had not discharged its burden of proving that the money in Ms Aboo’s accounts were proceeds of crime.

The court further said Ms Aboo had adequately explained the source of the money and that it was mistake for ARA to fail to join the husband in the case.

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