Businessman drags judge in battle with ARA over Sh55m, two cars

For businessman Anthony Kefa Odiero, a good name is fine oil that keeps his business.

However, a court battle between him and Assets Recovery Agency (ARA) hangs a dark cloud over his insurance brokerage firm, a consultancy firm and a flower export business.

Odiero is the director of AIB Petals Limited and Ensign Insurance Brokers Limited. In his court papers, he accused the Colonel Alice Mate-led agency of failing to investigate who he is and what kind of businesses he operates.

Instead, the businessman claimed that ARA keeps on shifting goalposts and, in the process, tarnishing his reputation in its case.

Initially, when ARA was seeking to freeze his accounts before the magistrate court, it claimed that it had intelligence that his money was obtained from drugs trafficking and money laundering.

However, at the High Court, the agency dropped the drugs narrative and held onto suspicion that the Sh55 million in Odiero's account was laundered. ARA stated that the money had been flagged from his account at National Bank of Kenya (NBK).

“Since the bank account was frozen on June 28, 2023, I have been subjected to inhumane and degrading treatment, noting that I have been labelled as a drug trafficker, wash wash guy, money launderer,” he told High Court Judge Esther Maina.

The businessman asserted that if the agency would have investigated who he was, and taken documents that he had provided as evidence to support his source of money, it would have realised that there was no figment of truth in their claim.

He said that ARA summoned him on August 4, 2023. The lower court’s case file was closed on August 25, 2023.

“I was not listed as a party and neither was I made aware of the said application… I Only got to learn of this order when I went to deposit to the said account on July 1, 2023,” he said.

According to him, the agency’s investigators allegedly never asked him in the two days meeting about drug trafficking or money laundering but grilled him on his lifestyle.

Odiero said that even after he voluntarily provided documentation on the source of his money, the agency rejected the same.

“I honoured the summons by the applicant and attended to the said summons on August 8 and 9, 2023 and in the said meeting I was neither informed of any complaint or evidence of money laundering or drug trafficking allegations but was instead asked questions that purported to audit my lifestyle and source of income. Curiously, the applicant officers declined to take my business invoices which explained the cash deposits to my accounts,” he argued.

In the meantime, he lamented that he was not aware of the magistrate’s orders freezing the accounts as the agency never roped him in as a party to the case. Although the account and the money in contest was his.

ARA only named NBK as a respondent in its application filed on June 28, 2023 to freeze the account for 21 days.

At the same time, Odiero stated that the agency which is under the Attorney General’s office sought to extend the orders on July 20, 2023 for a further 14 days.

When the case came up for mention on August 3, 2023, ARA asked for a further extension of the orders until August 18, 2023. ARA also went for his two vehicles. However, the businessman said that the two cars had no nexus to the money and the account.

“It was never and it can never be the business of the law to criminalise enterprise for having money,” he argued.

Odiero explained that although ARA's focus was bank transactions between September 29, 2020 and February 16, 2023, he purchased the first vehicle on May 10, 2019 and the second one on October 4, 2021.

In its application, ARA claimed that it suspected that Odiero has used proceeds of crime to purchase the two cars.

This time the agency claimed that he had unclear transactions totaling USD 1 million. At the same time, ARA alleged that he had received suspicious money amounting to USD 596.500 between 2020 and 2023.

“Investigations established that the respondent acquired the following vehicles through money laundering,” ARA claimed in its application signed by Sally Amadi. ARA alleged that on June 12, 2023, it allegedly received information on suspected money laundering.

Odiero dismissed the claim. He stated that he learned through social media about the vehicles and personally took them to the agency’s offices.

He averred that despite ARA freezing his accounts from June 2023, it had nothing criminal or unlawful about him to hang on its case.

Odiero had asked Justice Maina to lift the freeze orders and to allow him use the vehicles as they were needed for his personal and employees use. He argued that the vehicles would waste away in ARA’s parking while they could hold onto the logbooks to avert any sale or transfer.

In response, ARA filed opposed the application to unfreeze the accounts. Its investigator Frederick Musyoki in his supporting affidavit argued that he had not proved that he would suffer any hardship owing to the freeze.

Musyoki stated that the arms of the law tilted to government’s side as ARA intended to file a case for Odiero to forfeit the money and the cars. However, the Judge dismissed Odiero’s application on November 23, 2023.

The order opened a new battle front between him, ARA and the Judge. Odiero filed a complaint before the Judicial Service Commission (JSC) seeking the removal of Justice Maina from office.

His lawyer Ndegwa Njiru also filed an application to have her withdraw from the case on December 6 last year.

According to Odiero, a person by the name Anthony Manyara allegedly contacted him on September 6, 2023 with information about the case.

He alleged that Manyara then contacted him the following day, asking for a meeting about some information that he allegedly had about the case. He claimed that Manyara told him that he had the judge’s blessings to inform him that the case would succeed if he allegedly behaves.

“Upon learning that the applicant had declined the invitation to offer the solicited Sh 2.5 million the said Anthony Manyara threatened the applicant that he would never ever get justice from this court and the judge would mess the applicant’s case,” claimed Ndegwa.

He said that his client had recordings and WhatsApp messages from Manyara and had physically met him.

Odiero claimed that Manyara was either a messenger of the court or he was an imposter who was out to tarnish the reputation of the court.

“The application is no way questioning the integrity of this court but largely apprehensive that the application dated September 8, 2023 was eventually dismissed by this court as had been promised by Anthony Manyara.”

“The application is no way intended to actuate any attempt to forum shop for a friendlier court as I am confident that any court, save for this one, will be capable of dispensing substantive justice in this matter,” he said.

Justice Maina set mention of the case on January 16, 2024. However, ARA filed the case for forfeiture.

The Judge directed the agency to respond to the application for recusal and the case will be mentioned on February 26.

In the meantime, JSC last month acknowledged that it had received the petition for the judge’s removal from office.

“We acknowledge receipt of your petition dated December 14, 2023. The Judicial Service Commission is now fully seized of the complaint. We write to advice that the complaint is being processed in accordance with the law and the progress or outcome shall be communicated to you,” the letter by JSC acting secretary Paul Maina.