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Court of AppealPartially AllowedCivil Application No. E511 of 2025 (stay application pending Civil Appeal No. E511 of 2025)

Assets Recovery Agency v Eis Afrika Group Ltd (Civil Appeal (Application) E511 of 2025) [2026] KECA 1253 (KLR)

Court of Appeal of Kenya
3 July 2026
3,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal froze USD 274,369.56 pending an appeal, ruling that POCAMLA's section 97 keeps preserved assets locked even after forfeiture is dismissed.

What this practically means

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Executive summary

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The Asset Recovery Agency applied under rule 5(2)(b) of the Court of Appeal Rules, 2022 for a stay of execution of a High Court judgment (Musyoki, J., 20th June 2025) which dismissed its application for forfeiture of USD 274,369.56 held in the respondent's account at I&M Bank, alleged to be proceeds of crime. The funds were said to derive from a World Bank-funded border post construction contract in South Kivu, Burundi. The High Court found the agency's investigations defective and held it had failed to prove on a balance of probabilities that the funds were proceeds of crime. Before the Court of Appeal, the central dispute was whether section 97 of POCAMLA provided a statutory automatic stay of preservation orders pending appeal, as the applicant contended, or whether section 89(1)(b) required rescission of preservation orders upon conclusion of proceedings and whether, as a negative order, the dismissal was incapable of being stayed, as the respondent urged. The Court held that section 89 governs variation and rescission of interim preservation orders and does not apply to forfeiture proceedings; section 97 is the operative provision. It construed section 97 purposively, supported by comparative provisions in South Africa, Namibia and Nigeria, as a statutory 'safety net' preserving assets from dissipation pending appeal even where the forfeiture application was dismissed. Finding the appeal arguable and the substantial sum at risk of withdrawal by a company whose sole director is a foreign national, the Court stayed execution of the judgment and consequential release of the funds pending determination of Civil Appeal No. E511 of 2025, directed that the appeal be heard within sixty days, and ordered that costs of the application abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable under rule 5(2)(b) of the Court of Appeal Rules, 2022
  2. 2.Whether the appeal, if successful, would be rendered nugatory unless a stay is granted
  3. 3.Whether section 97 of POCAMLA provides a statutory stay of preservation orders pending appeal, notwithstanding that the order below is a negative order dismissing the forfeiture application

Key legal issues

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01

Whether the orders appealed from, being negative orders dismissing the forfeiture application, are capable of being stayed

Holding

Although a stay ordinarily cannot issue from a negative order, the express statutory stay in section 97 of POCAMLA displaces that general rule and preserves the preservation order pending appeal.

Reasoning

The court acknowledged the general rule that a negative order is not stayable, but held that section 97 of POCAMLA is a compelling statutory provision creating a 'safety net' for the State, keeping preserved assets frozen while an appeal against dismissal of a forfeiture application is pending. The provision protects assets from dissipation and operates even where no forfeiture order has been made.

p. 7
02

Whether section 97 or section 89(1)(b) of POCAMLA governs the fate of preservation orders upon conclusion of proceedings

Holding

Section 89 relates to variation and rescission of interim preservation orders; it does not relate to forfeiture proceedings. Section 97 is the applicable provision.

Reasoning

The court distinguished the two provisions: section 89 deals with variation or rescission of preservation orders, which are interim orders valid for 90 days, while section 97 governs the continuation in force of preservation and seizure orders pending the outcome of an appeal on a forfeiture decision. The court adopted a purposive reading, noting similar provisions in South African, Namibian and Nigerian legislation.

p. 5
03

Whether the rule 5(2)(b) threshold of arguability and nugatory effect was met

Holding

The appeal was sufficiently arguable and, given the substantial sum and the risk of withdrawal of funds by the respondent whose sole director is a foreign national, the appeal would be rendered nugatory without a stay.

Reasoning

Applying the settled principles in Trust Bank v Investech Bank, the court found the amount involved (USD 274,369.56) substantial, the respondent's sole director a Rwandese national, and concluded that if the funds were released and the appeal succeeded, it would have been rendered nugatory.

p. 7

Legal principles established

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  • Section 97 of POCAMLA provides a statutory stay: a preservation order in force when the court decides a forfeiture application remains in force pending the outcome of any appeal, even where the forfeiture application was dismissed and the order below is a negative order.
  • Section 89 of POCAMLA governs variation and rescission of interim preservation orders and does not apply to forfeiture proceedings; the operative provision on appeals in forfeiture matters is section 97.

Court orders

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  1. 1.Execution of the judgment by Musyoki, J. dated 20th June 2025 and the subsequent orders allowing the release of USD 274,369.56 held at the respondent's bank account at I&M Bank is stayed pending hearing and determination of Civil Appeal No. E511 of 2025
  2. 2.The appeal should be heard within sixty (60) days from the date of the order and determined expeditiously thereafter
  3. 3.The costs of the application shall abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya, Anti-Corruption and Economic Crimes Division, Milimani Law Courts
Suit Number E125 of 2024
Jurisdiction invoked
Article 164(3) of the Constitution; sections 3, 3A and 3B of the Appellate Jurisdiction Act; rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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No refusal of substantive relief; costs were not awarded to either party at this stage

Costs deferred to the outcome of the appeal

p. 7

Costs

The costs of this application shall abide the outcome of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Execution of the judgment by Musyoki, J. dated 20th June 2025 and the subsequent orders allowing the release of USD 274,369.56 held at the respondent’s bank account at I&M Bank is hereby stayed pending hearing and determination of Civil Appeal No. E511 of 2025.
p. 7Final orders - statutory stay granted
Section 97 provides a statutory stay to ensure that property that is subject to a preservation order is not dissipated or released while appellate proceedings are ongoing.
p. 7Effect of section 97 POCAMLA
It may be viewed as a “safety net” for the State to ensure that assets that are suspected to be proceeds of crime and had lawfully been preserved pursuant to a trial court’s order are not released immediately after dismissal of forfeiture proceedings, if the State has appealed.
p. 6Purposive interpretation of section 97
The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable
p. 4Rule 5(2)(b) principles
The said appeal should be heard within sixty (60) days from the date hereof and determined expeditiously thereafter.
p. 7Expeditious disposal direction

Issues in the judgment

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minor

The heading of the application refers to Civil Appeal Number E511 of 2025 both as the appeal in which the application is made and as the appeal number, while the case number of the application itself is not separately stated in the judgment as extracted.

minor

The judgment is dated 3rd July 2026 but recites that the application was heard on 24th November 2025, an unusually long interval; the certification block describes the signatories only as 'JUDGE OF APPEAL' without their full rank titles.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Assets Recovery Agency v Eis Afrika Group Ltd (Civil Appeal (Application) E511 of 2025) [2026] KECA 1253 (KLR)", Case Analysis (2026). Civil Application No. E511 of 2025 (stay application pending Civil Appeal No. E511 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1253/eng@2026-07-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.