Forfeiture is defined as the loss of goods/chattels as a punishment for some crime or
misdemeanor by an owner. It is the process by which property suspected to be an outcome
of a crime or used to commit a crime is confiscated by the relevant authorities.
There exist two types of forfeiture in law: Civil and Criminal forfeiture.
Civil forfeiture occurs when a suit is brought against a person’s property (in rem) based
on suspicions of illegal acquisition of the property or its use, in perpetuating crimes such as
money laundering.
Criminal forfeiture differs from the civil type on the basis that it is imposed as part of a
sentence in a criminal case. The majority of countries refer to it as a Confiscation order
which acts in persona (imposed against the accused person). Here, the accused is
convicted, sentenced to prison or to pay a fine, ordered to pay restitution to his victims, and
ordered to disgorge the proceeds of his crime, or property he used to commit the offense.
Legal Framework Governing Forfeiture in Kenya
- Article 40 Constitution of Kenya 2010: Right to Property
- Article 31 Constitution of Kenya 2010: Right to Privacy; right not to have one’s
property searched nor their possessions seized. - Anti-Corruption and Economic Crimes Act (ACECA), 2003: This Act supplements civil
forfeiture efforts by criminalizing corruption and enabling the Ethics and Anti-Corruption
Commission (EACC) to seek recovery of assets derived from corrupt activities. - Proceeds of Crime and Anti-Money Laundering Act (POCAMLA), 2009: Primary Act
that allows the government to confiscate property suspected to be proceeds of
crime and also provides for asset recovery and anti-money laundering.
Difference between Forfeiture suits brought under the POCAMLA
and ACECA.
| POCAMLA | ACECA |
| Section 94 read together with section 92 of the Act empowers the court to issue an order of forfeiture of proceeds of crime if it is proved on a balance of probability that the property has been used or is intended for use in the commission of an offense or is proceeds of crime. [Pamela Aboo v Assets Recovery Agency & another] eKLR. This Act primarily governs Criminal Forfeiture suits. | Section 55 of the Act provides for forfeiture of unexplained assets which is concerned with disproportion between the assets concerned and the known legitimate income of the person found with the assets. [Pamela Aboo v Assets Recovery Agency & another] eKLR. The Act governs the conduct of civil forfeiture suits. |
Agencies Involved
● Ethics and Anti-Corruption Commission (EACC): Tasked with investigating and
recovering assets obtained through corruption. Established under the ACECA.
● Asset Recovery Agency (ARA): The ARA is empowered to trace, freeze, seize, and
recover assets acquired through crime, with a particular focus on money laundering.
It is established under the POCAMLA
● Directorate of Criminal Investigations (DCI): Works with other agencies to
investigate crimes and enforce asset seizures.
Burden of Proof
In Civil Forfeiture proceedings, the legal burden of proof is on a balance of probability. The
onus of proof is shifted to the Respondent to prove that the property was acquired lawfully.
The court in the matter of EACC v Nashon Wilson and others opined that in Civil Forfeiture
suits under the ACECA, the burden of proof lies with the Commission throughout the suit
and at no time does it shift to the suspect. In Stanley Mombo Kuti v Kenya Anti-
Corruption Commission [2019] eKLR, the court explained that under section 55(2) of the
ACECA, an individual has the evidentiary burden to offer a satisfactory explanation of
legitimate acquisition of the asset in question or forfeit such asset. Therefore, the
evidentiary burden of explanation is borne by the respondent and like a pendulum will
keep on shifting from the Commission to the Respondent based on assertions and counter-
assertions.
Process of Civil Forfeiture:
● Investigation Stage: This is the initial stage that seeks to establish whether a
suspect’s assets or proceeds are proceeds of economic crimes or enablers of
offenses. This is carried out by persons appointed by the Commission under the Act
under section 23 of the ACECA. It involves the collection of evidence related to
properties, and bank statements by issue of warrants to persons of interest.
● Preservation Stage: The Commission applies to the High Court for orders that
prohibit a named person or entity from dealing with the property in any way.
● Burden of Proof: The Commission provides evidence based on reasonable grounds
that the suspect’s properties are proceeds of crime. The suspect thereafter must
provide evidence that their assets were acquired legally. The onus of proof only
shifts to the suspect to prove that his assets were acquired legally.
● Final Orders: If the court is satisfied that the suspect’s assets are obtained illegally,
it grants a forfeiture order, transferring ownership of the property to the state.
Conclusion
Civil Forfeiture is a powerful tool in Kenya’s system used to fight and curtail corruption and
organized crimes.
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.
