Judge blasts ARA for 'copy pasting affidavits, shoddy investigations'

Lawyer Ndegwa Njiru. [File, Standard] The Anti-Corruption High Court has criticised the Asset Recovery Agency (ARA) for filing forfeiture cases based on mere suspicion. In his judgment, Justice Benjamin Musyoki acknowledged the agency's crucial role in promoting clean business practices and financial integrity in the country but condemned its reliance on "desk investigations" to pursue individuals. "It should be detestable for the applicant to conduct what I would call desk investigations and expect to fight the menace of money laundering and prevention of use of proceeds of crimes in the country," said Justice Musyoki. ARA filed the case against East Africa Group Limited (EAGL), seeking to have the firm forfeit $274,369.36 (Sh35,462,239.78) held in an account at I&M Bank under the name of Eis Africa Group Limited. Justice Musyoki noted that parts of investigator Alfred Musalia's affidavit appeared to have been copied and pasted from an earlier application to freeze funds. According to the judge, it seemed that ARA used a standard affidavit template, which they copy, paste, and edit, as it closely resembled affidavits from other cases he had previously handled. "I dare say that the applicant seems to have a standard affidavit which they copy, paste and edit and that is why the supporting affidavit in this matter still talks of preservation orders despite us now dealing with the final forfeiture." "The affidavit also talks of the respondent having made huge cash withdrawals but going through the bank account statement, I could not trace a single entry showing any cash withdrawal. It has become a custom, at least for the matters I have handled, that the applicant tells the court that it has investigated and investigations reveal that the money or property it seeks to forfeit are proceeds of crime or money laundering without giving details," the judge added. The case, filed last year, mirrors another case before the Court of Appeal involving the agency and businessman Anthony Odiero. In Odiero's case, the agency's former investigator Fredrick Musyoki admitted he did not investigate the Sh55 million alleged to be suspected money laundering. The judge questioned why the investigator did not seek mutual legal assistance to verify the source of the money abroad. Despite this, Justice Patrick Otieno ruled that part of Odiero's money and vehicles be forfeited to the state. Odiero's lawyer, Ndegwa Njiru, said ARA kept shifting the goalposts and, in the process, tarnished the businessman's reputation. In the EAGL case, ARA's Alfred Musalia alleged that on March 1, 2024, the agency received information that the firm was involved in money laundering. He claimed that funds wired to the company's account came from a foreign country and were being withdrawn or transacted in a suspicious manner. EAGL's director, Nduwimana Aimable, told the court that the firm is affiliated with EIS Company SPRL, based in Burundi, which provides engineering services, including road, bridge, and construction works. He explained that EIS Company had won a tender for construction and installation works at Kavimvira Border Post in South Kivu Province, Burundi, which serves as the border between Burundi and Congo, at a cost of $5 million (Sh646,250,000). The project was funded by the World Bank, which released $1 million (Sh129,250,000) for equipment purchases. However, international transfers in Burundi faced challenges, as amounts above $5,000 require justification with a licence confirming that imported goods would be used locally. Due to this, Nduwimana said his company, on advice from its bank, opened an account with I&M Bank in Kenya, with which they had an established relationship, enabling them to transfer funds to Kenya for equipment procurement. Despite submitting statements proving the source and intended use of the funds, ARA delayed unfreezing the accounts, citing an application it had submitted to Interpol. Nduwimana lamented that the project had stalled despite the World Bank's confirmation of the legitimacy of the funds.

Judge blasts ARA for 'copy pasting affidavits, shoddy investigations'

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Judge blasts ARA for 'copy pasting affidavits, shoddy investigations'

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