Assets Recovery Agency v EIS Afrika Group Ltd
The bottom line
#Kenya's Court of Appeal confirmed that suspicion alone cannot justify seizing money as crime proceeds—the Assets Recovery Agency must prove its case with solid evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in finding that the appellant had not established the threshold necessary to warrant forfeiture of the funds under sections 90 and 92 of POCAMLA
- 2.Whether the learned Judge misdirected himself on the applicable burden and standard of proof in civil forfeiture proceedings
- 3.Whether the in rem nature of civil forfeiture proceedings lowers the evidential threshold applicable to the Agency
- 4.Whether the learned Judge improperly rejected or relied on inadmissible evidence, including the cyber forensic report
- 5.Whether the appellant could raise for the first time on appeal an objection to untranslated French documents
Key legal issues
#Burden and standard of proof in civil forfeiture under POCAMLA
The Agency bears the legal burden of proving on a balance of probabilities that the property is proceeds of crime or intended for use in an offence; mere suspicion or unusual transactions are insufficient, though the evidential burden may shift where credible evidence warranting rebuttal is adduced
Section 92(1) POCAMLA prescribes the balance of probabilities as the standard. Following the Supreme Court's decision in Pamela Aboo, forfeiture requires a nexus between the property and criminal conduct. The Agency's supporting affidavit contained only general conclusions unsupported by underlying evidential material, and its key allegations (massive cash withdrawals, unverifiable email) were not substantiated by the records it relied upon.
Effect of the in rem character of civil forfeiture on the evidential threshold
The in rem nature of proceedings determines the subject of the proceedings but does not alter the standard of proof prescribed by section 92(1) POCAMLA
The appellant argued that the in rem character of civil forfeiture lowered the evidential threshold. The Court rejected this: while no criminal conviction of the owner is required, the property itself must satisfy the statutory conditions for forfeiture. The statutory objective of combating money laundering cannot dispense with proof of the statutory elements, and the State's power to deprive a person of property must remain within the framework prescribed by the Act and the Constitution.
Weight of the cyber forensic report and unverified email evidence
The report, attributed to an unnamed analyst and tendered through the investigator's affidavit, lacked sufficient evidential foundation and could not alone carry the weight the appellant placed on it
The Court declined to decide the wider question of admissibility of a public body's report, taking the narrower route: the issue was whether the report established the disputed facts. Failure to verify an email address raises questions about that communication only, not about the existence of the underlying contract or the criminal provenance of the funds.
Raising a new evidential objection (untranslated French documents) for the first time on appeal
A party should not ordinarily be permitted to raise on appeal a new evidential objection requiring factual inquiry not raised before the trial court
The record did not show the objection was raised before the High Court; the respondent had been granted leave to respond to the further affidavit and the matter proceeded to judgment. The Court declined to entertain the objection on appeal.
First appeal duty of re-evaluation of evidence
A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, making allowance for the fact it did not see or hear the witnesses
Citing Selle v Associated Motor Boat Co, the Court undertook its own independent re-evaluation of the record, including examining the bank statements and the affidavit evidence, before agreeing with the learned Judge's ultimate conclusion though on a narrower basis.
Legal principles established
#- In civil forfeiture under POCAMLA the Agency bears the legal burden of proving, on a balance of probabilities, a nexus between the property and criminal conduct; the in rem nature of the proceedings does not lower the standard of proof
- Suspicion or unusual, large or international transactions may trigger investigation but do not by themselves discharge the evidential burden for forfeiture
- A party may not ordinarily raise on appeal a new evidential objection requiring factual inquiry that was not raised before the trial court
- The evidential burden may shift to the person in possession of property where the Agency adduces sufficient evidence warranting a rebuttal, but the legal burden remains on the Agency
Court orders
#- 1.The appeal is dismissed
- 2.The judgment and decree of the High Court dated 20th June 2025 are upheld
- 3.The respondent shall have the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (Anti-Corruption and Economic Crimes Division)
- Suit No. E025 of 2024
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Court of Appeal's statutory appellate powers; appeal against judgment in civil forfeiture proceedings under POCAMLA
Relief refused
#Forfeiture of USD 274,369.56 held in the respondent's I&M Bank account
The Agency failed to establish on a balance of probabilities the statutory nexus between the funds and criminal conduct; suspicion alone does not discharge the legal burden
Costs
The respondent shall have the costs of this appeal.
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.
The in rem nature of the proceedings determines the subject of the proceedings; it does not alter the standard of proof prescribed by section 92(1) of POCAMLA.
Suspicion may properly trigger an investigation; it does not, by itself, discharge the evidential burden necessary for forfeiture.
A party should not ordinarily be permitted to raise on appeal a new evidential objection requiring factual inquiry which was not raised before the trial court and upon which that court was consequently not called upon to rule.
The appeal is dismissed. The judgment and decree of the High Court dated 20th June 2025 are hereby upheld. The respondent shall have the costs of this appeal.
Issues in the judgment
#Judgment refers to the learned Judge as 'he' in early paragraphs and 'she' in paragraph 12
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Assets Recovery Agency v EIS Afrika Group Ltd", Case Analysis (2026). Civil Appeal E511 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1739/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.