Mozzartbet Kenya Limited v Assets Recovery Agency & 2 others (Civil Appeal E250 & E313 of 2022 (Consolidated)) [2025] KECA 897 (KLR)
The bottom line
#The Court of Appeal upheld forfeiture of over Kshs.256 million linked to Mozzartbet, ruling that only provably innocent third parties can shield funds from Kenya's asset recovery agency.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The status and scope of third party protection under sections 93 and 94 of POCAMLA
- 2.The bona fides of the contracts between Mozzartbet Kenya Limited and Kimaco Connections Ltd of February 20, 2020
- 3.Whether the funds held in the accounts of Kimaco and Pescom were proceeds of crime, whether derived from money laundering, and whether Mozzartbet could claim third party protection
Key legal issues
#Scope of third party protection under section 93 of POCAMLA
The underlying principle, drawn from the English POCA, is that forfeiture should not interfere with the property rights of innocent third parties, but protection is conditional on the third party proving innocence, sufficient consideration, and absence of knowledge or reasonable suspicion under section 93(1).
The court adopted Lord Stephens' exposition of the English POCA in Aquila Advisory and held that the same principle underlies section 93 of POCAMLA. A claimant such as Mozzartbet had to establish the twin limbs: non-involvement in the offence and acquisition for sufficient consideration without knowledge or circumstances arousing reasonable suspicion that the property was tainted. On the evidence, directors and persons associated with Mozzartbet received funds from Kimaco under unexplained circumstances, defeating the claim to innocence.
Whether deviation between the prayers (proceeds of crime) and the affidavit evidence (money laundering) vitiated the forfeiture
No. Since section 4 is included in the definition of money laundering, seeking forfeiture of funds as proceeds of crime because they result from money laundering is consistent with the pleadings; only an offence not pleaded at all would amount to trial by ambush.
The court examined the statutory definition of money laundering, which ties it to offences under sections 3, 4 and 7 of POCAMLA. Section 4 covers acquisition, use or possession of proceeds of crime. The supporting affidavit of Snr. Sgt Musyoki expressly deponed to a complex money laundering scheme. The trial judge was therefore entitled to consider and find that the monies were laundered; the appellants were not tried on an unpleaded case.
Whether DCI clearance insulates the appellants from civil forfeiture
No. POCAMLA forfeiture proceedings are civil in nature, decided on a balance of probabilities, and section 92(4) provides that the validity of a forfeiture order is unaffected by the outcome of criminal proceedings or investigations.
The court contrasted the criminal standard of proof beyond reasonable doubt, relevant to the DCI's decision not to prosecute, with the civil threshold of balance of probabilities under section 92. A lower threshold is justified because money laundering is a complex and covert scheme. The ARA's mandate differs from the DCI's, and appellants cannot rely on DCI clearance to resist forfeiture.
Whether the evidence established that the funds were proceeds of crime and that Kimaco was a shell company
Yes. Kimaco received payments under suspicious circumstances, paid out funds to persons associated with Mozzartbet without explainable underlying contracts, filed nil KRA returns and had no verifiable staff, supporting the finding that it was a shell company used in a laundering scheme.
The court re-evaluated the affidavit evidence: Kimaco lacked capacity and past experience in software, its contract with Open Skies predated the Mozzartbet contract, Emmanuel Charumbira directed both Mozzartbet and Open Skies, substantial funds flowed to Sirma, Charumbira and Melentijevic without contractual justification, and Kimaco filed nil returns despite receiving over Kshs.641 million. The trial judge's findings were entitled to be upheld.
Legal principles established
#- Third party innocence is at the heart of section 93 protection: a third party must prove on a balance of probabilities that it was not involved in the offence and that it acquired its interest for sufficient consideration without knowledge or reasonable suspicion that the property was tainted.
- Because section 4 (acquisition, possession or use of proceeds of crime) is included as a money laundering offence in the interpretation section, ARA may seek a declaration that funds are proceeds of crime arising from money laundering even where the prayer is framed as proceeds of crime; a party is only unfairly ambushed by an offence not pleaded at all.
- Forfeiture proceedings under Part VIII of POCAMLA are civil proceedings decided on a balance of probabilities, and clearance by the DCI or the outcome of criminal investigations does not defeat a forfeiture order by virtue of section 92(4).
Court orders
#- 1.The two appeals are dismissed
- 2.Costs awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Forfeiture application by originating motion dated March 12, 2021 (specific case number not stated)
- Jurisdiction invoked
- First appellate jurisdiction over forfeiture proceedings under Part VIII of the Proceeds of Crime and Anti-Money Laundering Act, 2009, including appeals from orders under section 93(1) as provided in section 93(5) of POCAMLA
- Consolidated with
- Two consolidated appeals by Mozzartbet Kenya Limited and Kimaco Connections Ltd (appeal numbers not stated in the judgment)
Relief refused
#Mozzartbet's claim to third party protection/exclusion of Kshs.256,051,910 from the forfeiture order under sections 93 and 94 of POCAMLA
The evidence implicated persons associated with Mozzartbet as beneficiaries of funds from Kimaco, and the statutory threshold on a balance of probabilities was met; Mozzartbet was not an innocent third party
Costs
The two appeals are dismissed with costs to the respondent ("the two appeals are without merit and are hereby dismissed with costs.")
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Ultimately, we reach the conclusion that the two appeals are without merit and are hereby dismissed with costs.
Third party innocence is at the heart of the provisions of section 93 which afiords protection to a third party who satisfies court, on a balance of probabilities that; the person was not in any way involved in the commission of the ofience
We hold that there was suficient evidence, on the statutory threshold of balance of probabilities set by section 92 of the Act, to implicate Mozzartbet as well and it cannot benefit from protection of a third party.
What would be of concern to us is if appellants would be found culpable on an ofience not pleaded at all. That would be trial by ambush and inimical to the right to fair hearing.
The mandate of the ARA and its Director is markedly difierent from that of the DCI and the appellants cannot bank on clearance from the DCI to resist the forfeiture proceedings
Issues in the judgment
#The judgment states the Mozzartbet payment as Kshs.256,051,910 in one passage but Kshs.256,725,028, Kshs.256,930,343.52 and Kshs.256,851,910 elsewhere; the exact figure is inconsistent.
The judgment refers to a payment on May 8, 2025 by Kimaco, a date after the forfeiture application and the trial judgment, likely a typographical error for an earlier year.
The UK Supreme Court case is referred to as 'Crown Protection Services [2021] UKSC 49' by counsel but as 'Aquila Advisory Ltd' by the court; the naming is inconsistent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mozzartbet Kenya Limited v Assets Recovery Agency & 2 others (Civil Appeal E250 & E313 of 2022 (Consolidated)) [2025] KECA 897 (KLR)", Case Analysis (2025). Not stated in the judgment (two consolidated appeals against HCACEC forfeiture proceedings arising from originating motion dated March 12, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/897/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.