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Ex -NYS official loses appeal in property forfeiture suit
The judges said Mr Kundu had failed to explain why he had doubts about the agency's ability to manage the properties now, but did not raise them when the order came into force in 2022.
A former National Youth Service (NYS) official has lost a bid to block a state agency from taking over his properties, which were declared as proceeds of crime almost three years ago.
The Court of Appeal dismissed an application by Evans Wafula Kundu, seeking to stop Assets Recovery Agency (ARA) from managing the properties, pending the determination of his appeal.
The properties he was ordered to forfeit to the government include apartments in Kasarani valued Sh16 million, which he acquired in April 2014, 40 acres of land in Kitale, which he bought in 2013, a plot in Kitale, a house in Runda, Nairobi valued Sh73 million, a house in Kiamunyi in Nakuru and a lorry.
Others are a four-storey residential building in Njoro, another land in Nairobi valued at Sh6 million and his palatial home in Trans Nzoia, which was allegedly constructed using proceeds of crime. The properties were acquired between 2013 and 2018.
He submitted that the assets are likely to waste away, if the agency takes over its management, since ARA does not have the structure to manage the properties.
Justices Fatuma Sichale, Francis Tuiyott and Fred Ochieng rejected the application wondering why it took Mr Kundu over two years to file the application.
“Such lengthy and unexplained delay is perhaps evidence that the application is simply an afterthought and the fear that the appeal will be rendered nugatory if not protected by stay is not well founded,” said the judges.
The judges said Mr Kundu had failed to explain why he had doubts about the agency's ability to manage the properties now, but did not raise them when the order came into force in 2022.
He was employed by the NYS as a serviceman in 1980 and rose through the ranks to become the acting deputy director and officer in charge of the Mechanical and Transport Branch.
Mr Kundu has faulted trial judge Esther Maina for allegedly excluding critical evidence that demonstrated legitimate sources of income used to acquire the assets.
The former NYS boss also faulted the judge for relying on his none compliance with tax returns as a basis of finding illegitimacy in the acquisition of the assets when tax legislation has a raft of measures in sanctioning a person who does not declare taxes.
He has further faulted the court for ignoring the legitimate interest of third parties as owners of some of the properties.
Evidence produced in court showed that Mr Kundu’s earnings between 2013 and 2017 only amounted to Sh259,550 and there was no evidence to support an allegation that he earned Sh200 million from maize farming.
The agency further said the audited records and bank accounts could not account for Sh65 million and Sh175 million, allegedly earned from the sale of maize.
ARA said Mr Kundu did not file his annual returns or tax returns for his business.
The judges, however, ruled that his appeal raised substantial questions.
“While the learned trial judge interrogated the evidence before her and reached a conclusion that the interested parties were proxies of the applicant, whether that conclusion is in tandem with the evidence is a matter worthy of further scrutiny by an appellate court,” the court said.
