The court further directed that the money, which had been preserved under a court order issued on 12th March 2021, be released immediately to the respondent, Mohammed Hassan Sharif, unless it is lawfully held under any other grounds.
Justice Sifuna underscored the importance of evidence in civil forfeiture proceedings, reiterating that even anti-corruption agencies must meet the required legal threshold.
“A court of law is a court of proof. It is not a court of mere perceptions, suppositions, and presumptions,” he stated. “Even the Anti-Corruption Agency must provide evidence that meets the legal threshold. A court, unlike a lynch mob, acts only on evidence, not unproven allegations and assertions.”
The case arose from an incident on 13th July 2020, when Sharif was found in possession of USD 29,000 during a routine security check at Migwani Junction while travelling as a passenger in a vehicle along the Nairobi-Garissa Highway. The cash was discovered in $100 denominations and immediately seized by a multi-agency team.
Sharif was later charged under Criminal Case No. 2221 of 2021 at the Nairobi Magistrates Anti-Corruption Court. However, the case was dismissed under Section 210 of the Criminal Procedure Code after the magistrate found that there was no case to answer.
Despite the collapse of the criminal case, ARA pursued a civil forfeiture application, supported by an affidavit from CPL Fredrick Muriuki, an investigator attached to the agency. The agency claimed that the cash was of suspicious origin and likely to be proceeds of crime.
In his defence, Sharif told the court that he is a legitimate livestock farmer and trader operating across Garissa, Mandera, and Nairobi counties. He explained that the money in question was proceeds from the sale of 105 head of cattle and subsequent resale of another 100 cattle in Nairobi. He submitted livestock sale receipts issued by county government authorities as evidence of the lawful nature of his business dealings.
ARA, however, dismissed his explanation, questioning the authenticity of the receipts and pointing to inconsistencies in his tax returns filed with the Kenya Revenue Authority (KRA). Investigators labelled the documents “dubious” and argued that his declared income could not justify possession of such a large sum.
Justice Sifuna rejected the agency’s arguments, stating that in civil forfeiture matters, the standard of proof is based on the balance of probabilities, a threshold ARA had failed to meet.
“If, at the end of the evidence, an objectively-minded person would say the fact is more probable than not, then that standard is met. In this case, it has not been,” the judge ruled.
The judgment is a significant reminder to investigative and anti-corruption agencies that civil forfeiture, while a powerful tool, must be grounded in credible and demonstrable evidence. The ruling also signals the judiciary’s commitment to upholding the rule of law and protecting individuals against arbitrary seizure of assets without due process.
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