Overnight Success! Not on the EACC’s Radar: A Review of the Supreme Court’s Ruling on Stanley Mombo’s Case

The menace of money laundering, economic crimes, and corruption contribute to the moral
decadence in society with its rise in recent times. In Kenya, the Anti-Corruption and
Economic Crimes Act (ACECA) was implemented to serve as a tool to address this
challenge. Its main function is to prevent, investigate, and penalize corruption, economic
crimes, and related offenses. The Act establishes the Kenya Anti-Corruption Commission
now referred to as the Ethics and Anti-Corruption Commission (EACC) as a corporate
entity, which investigates such cases and takes appropriate legal action against individuals
found in possession of unexplained assets.
A key feature of the Act is the concept of “unexplained assets,” a legal mechanism designed
to combat illicit wealth accumulation, money laundering, and suspicious corrupt practices.
The Act defines unexplained assets as properties acquired by a person suspected of
corruption or economic crimes, whose value significantly exceeds their known sources of
income, without a satisfactory explanation for the discrepancy. The principle underpinning
this provision is straightforward: if an individual cannot satisfactorily account for the
lawful source of their assets, those assets are subject to forfeiture.[more on Civil forfeiture
can be found in our other article here https://www.proftomojiendaandassociates.com/civil-
forfeiture-in-kenya/. ]

Brief Facts of the Case

On 12th July 2008, the Kenya Anti-Corruption Commission (now EACC) launched an
inquiry into Stanley Mombo Amuti, a public officer, based on allegations that his wealth
was disproportionate to his earnings. The Commission issued a notice requiring him to
provide a written statement explaining the source of his assets acquired between 1992 and
2008, including large sums of cash and banker’s cheques recovered from his residence and
office.
Amuti challenged the Commission’s actions, alleging that his property was unlawfully
seized and that he had adequately accounted for his wealth. However, dissatisfied with his
explanation, the Commission moved to the High Court, seeking a declaration that the assets
in question were unexplained and should be forfeited to the state. The High Court ruled in
favor of the Commission, finding that the assets met the legal definition of unexplained
wealth and should therefore be surrendered.
Unwilling to accept the verdict, Amuti escalated the matter to the Court of Appeal, which
upheld the High Court’s decision. He then took the case to the Supreme Court, which
ultimately dismissed the appeal, citing a lack of jurisdiction under Article 163(4)(a) of the
Constitution which permits appeals to the Supreme Court based on the following two
circumstances:

1. As of right, in cases involving the interpretation or application of the Constitution.
2. With certification, where the Court of Appeal or the Supreme Court itself certifies
   that the matter is of general public importance.
   The Supreme Court dismissed Amuti’s appeal on the basis that it did not meet either of
   these conditions. Consequently, the Court did not review the merits of the case, and the
   decision of the Court of Appeal remained in effect.

Court of Appeal’s Determination

Public officers in Kenya are legally required to declare their income, assets, and liabilities
every two years under the Public Officer Ethics Act. This measure aims to promote
transparency and accountability in public service. In its ruling, the Court of Appeal
addressed Amuti’s argument that forfeiture of his assets violated his right to property
under Article 40 of the Constitution. The Court emphasized that property rights are not
absolute, especially when assets are acquired unlawfully.
The Court further affirmed that under ACECA, individuals suspected of possessing
unexplained wealth must provide a satisfactory explanation. If they fail to do so, their
assets can be lawfully forfeited. To establish possession of unexplained assets, the
following criteria must be met:

1. The person must be under investigation for a specific period.
2. There must be reasonable suspicion of corruption or economic crime.
3. The person’s wealth must be disproportionate to their known sources of income
   during the period under investigation.
4. There must be an unsatisfactory explanation for the excess assets.

Conclusion

Both the High Court and the Court of Appeal reinforced the principle that public officers
must comply with wealth declaration requirements. The constitutional right to property
does not shield individuals from accountability regarding assets obtained through
corruption or economic crimes. Regular wealth declarations serve as a critical tool in
upholding integrity in public service, reminding officials that their positions are meant for
service to the public, not personal enrichment. As outlined in Chapter 6 of the Constitution,
public office is a privilege that demands high ethical standards and accountability, ensuring
that public resources benefit all citizens rather than a select few.

How We Can Help

At Prof. Tom Ojienda & Associates, we are committed to providing expert legal insights and
guidance across various practice areas. Whether you are an individual seeking legal redress

or an organization navigating complex regulatory frameworks, our experienced team is
here to support you. Our articles and insights are for informational purposes only and do
not constitute legal advice. For tailored legal solutions, please contact our team of
professionals at www.proftomojiendaandassociates.com to Stay Ahead of the Game.