The Court of Appeal has rejected the Assets Recovery Agency’s bid to seize Sh35.6 million held in a Kenyan bank account belonging to a Burundi-linked businessman, Nduwimana Aimable.
A three-judge bench comprising Justices Lydia Achode, Rachel Ngetich and Stephen Radido dismissed ARA’s appeal and upheld the High Court decision rejecting the forfeiture of USD274,369.56 held in an I&M Bank account belonging to EIS Afrika Group Limited.
“From the foregoing, we accordingly find no merit in the appeal. The appeal is dismissed. The judgment and decree of the High Court dated June 20 2025 are hereby upheld. The respondent shall have the costs of this appeal,” the judges ruled.
The dispute arose after USD350,000 was transferred into EIS Afrika’s account from a foreign jurisdiction on March 1, 2024.
ARA subsequently obtained preservation orders and sought forfeiture of the USD274,369.56 that remained in the account, alleging that the money was proceeds of money laundering.
ARA told the High Court that its investigations had established a money-laundering scheme designed to conceal the nature, source, disposition and movement of illicit funds.
EIS Afrika, through its director Nduwimana, however, disputed the allegations and explained that it was incorporated in Kenya and was an affiliate of EIS Company SPRL in Burundi.
The companies operated under the same management, with the Burundian firm involved in civil engineering, including road, bridge and construction works.
The company said the money was connected to a USD5,033,576.15 construction contract for works at the Kavimvira Border Post, which it said was funded by the World Bank.
According to the company’s explanation, funds were routed through the Kenyan account because of difficulties involving foreign exchange and importation in Burundi.
The money was intended to facilitate the procurement of equipment and vehicles from Dubai.
EIS Afrika produced tender documents, invoices and correspondence to support its explanation.
ARA challenged the authenticity of some of the documents, including an alleged World Bank email.
It also relied on a cyber forensic report attributed to the Communications Authority of Kenya.
The Court of Appeal, however, said ARA had failed to establish the necessary link between the money and criminal conduct.
The judges emphasised that under the Proceeds of Crime and Anti-Money Laundering Act, ARA carries the legal burden of proving that property is proceeds of crime.
“The legal burden of establishing the case remains upon the party asserting the relevant facts. In the context of civil forfeiture under POCAMLA, that burden rests upon the Agency,” the court said.
Achode's led bench further held that an unusual, large or international transaction could not, without more evidence, establish that funds were proceeds of crime.
“Suspicion may properly trigger an investigation; it does not, by itself, discharge the evidential burden necessary for forfeiture,” they ruled.
The court also faulted ARA for failing to independently verify the construction project or the documents with institutions including the World Bank or the Burundi Embassy.
“We agree with the learned Judge that the failure to undertake further independent verification weakened the appellant's case,” the judges said.
They noted that ARA had alleged massive cash withdrawals, but the bank statements did not substantiate the claim.
The judges also found that the cyber forensic report could not, on its own, carry the evidential weight ARA sought to place on it because its foundation had not been satisfactorily established.
The court concluded that the evidence warranted investigation but did not prove, on a balance of probabilities, that the remaining USD274,369.56 constituted proceeds of crime.
