Man claims ignorance of wife's Sh19.6 million as Supreme Court blocks forfeiture

In 2017, a Kenya Revenue Authority (KRA) employee told the Assets and Recovery Agency (ARA) that he did not know the source of his wife’s Sh19,688,152, a fact that led to her accounts being frozen and the funds forfeited.

Alex Khisa, a declaration officer with KRA, told ARA that despite knowing that his wife, Pamela Aboo, had the said monies in three accounts at Equity Bank, he did not know the source of the funds.

Aboo told ARA that the funds in the accounts were cash deposits from her businesses and trade in transportation, bananas, sugarcane, perfumes and cereals in Mombasa and Busia.

Dissatisfied with Aboo’s explanation, ARA obtained preservation orders against the monies on grounds that the monies were Proceeds of Crime and Anti-Money Laundering (POCAMLA).

ARA said Aboo failed to produce any evidence, such as business licenses, permits, or compliance documents, as proof that she operated the alleged businesses or trade.

ARA said that Aboo only provided names and cell phone numbers of depositors of the said funds during investigations.

According to ARA, Aboo’s funds were proceeds of corruption from her husband, who was under investigation for graft and abuse of office by the Ethics and Anti-Corruption Commission (EACC).

The EACC accused Khisa of allegedly receiving bribes from clearing and forwarding agents to undervalue tax payable on imports.

The Commission said Aboo’s accounts were being used by her husband as a conduit to deposit and transfer money acquired from bribes.

EACC further said the deposits were mainly made in Mombasa and Embakasi, where importation clearance takes place and the huge amounts were made without withdrawals, whereas in the ordinary course, a business account has debits and credit entries.

The commission said Aboo could not tell the running balances of the accounts and failed to adduce documentary and material proof of the various alleged businesses or trade.

EACC said that ARA established that Aboo was engaged in money laundering of the bribes received by her husband.

However, EACC later closed the bribery investigations against Khisa without preferring any charges and proceeded to seek Forfeiture of Aboo’s funds.

In its application for forfeiture, ARA said that under Section 55(2) to (6) of Anti-Corruption and Economic Crimes Act (ACECA) there is no requirement for the commission to prove that the Khasi actually committed an act of corruption to invoke the said section.

ARA went ahead to obtain orders for forfeiture of the said funds from Justice Hedwig Ong’udi.

Justice Ong’udi said that Aboo failed to prove the source of the huge deposits and held that once ARA established through the bank statement that there were huge unexplained deposits into the accounts, the burden shifted to her to explain the source of the funds.

In her defense, Aboo said EACC and ARA had not connected the funds to any illegitimate source or proved that the deposits made into the accounts were made on behalf of his husband.

She said that having been issued with a tax assessment dated February 26 2018, it was evident that the funds in the accounts were genuine.

Aboo said that by providing the contacts of all her agents and partners she discharged the evidentiary burden, and ARA and EACC’s failure to invalidate her explanation renders forfeiture proceedings against her illegal, unsustainable and unconstitutional.

She further said that the mere fact that Khisa was her husband did not prove that the deposits into the accounts were made on his behalf.

She said ARA and EACC had not proven any wrongdoing on her part to warrant the forfeiture and did not enjoin Khasi in the said suit.

On June 19 2026, the Supreme Court judges dismissed ARA’s appeal seeking to uphold the forfeiture of Aboo’s monies.

The Apex judges upheld a ruling delivered on December 15 2023 by Justices Mohammed Warsame, Hannah Okwengu and Jonh Mativo, setting aside High Court orders allowing forfeiture of Aboo’s funds.

Chief Justice Martha Koome, Justices Smokin Wanjala, Njoki Ndung’u, Issac Lenaola and Willis Ouko ruled that ARA cannot effectively mount forfeiture proceedings under POCAMLA without establishing a link to an incidence of crime.

The Apex court said ARA has to demonstrate that the said property has been used or intended to be used to commit a crime or that it is a proceeds of crime.

The SC said ARA failed to establish that the said monies were proceeds of crime and that Khasi was involved in money laundering and bribery, as alleged by EACC, which later dropped the investigations against him.

“We have concluded that the record discloses no evidence to link the monies in question to the commission of a crime, or that they were proceeds of crime. Without such a nexus, the forfeiture proceedings ought not to have stood before the trial court,” said Justice Koome.

The CJ said ARA ought to have enjoined Khisa in the forfeiture suit to afford him a chance to defend himself as an interested party in the suit.

The SC upheld the Appellate court’s verdict that ARA had the legal burden under Section 92 of POCAMLA to prove that Aboo had assets that had been used or intended for use in the commission of an offence or the assets were proceeds of crime.

In the appellate court, the judges said a link must establish that certain benefits flowed either indirectly or directly from the offence.

The three judges said Aboo had given a satisfactory explanation disclosing not only who was making the deposits, but also for what purpose the deposits were being made and therefore the evidentiary burden shifted back ARA to prove otherwise.