A court dismissed a bid by the Assets Recovery Agency (ARA) to seize Sh572 million from former Nairobi governor Mike Sonko’s bank accounts.
The ruling is a reprieve for Sonko in all ways.
The court ruled that the funds were not proven to be proceeds of crime.
Justice Prof. Nixon Sifuna, sitting at the Anti-Corruption and Economic Crimes Division, criticised ARA for what he described as “selective, rash and unprofessional investigations” that failed to establish any credible link between the funds and corruption or money laundering.
The agency had targeted ten accounts belonging to Sonko at Equity Bank, Diamond Trust Bank and Co-operative Bank, which held a combined Sh24.9 million at the time of freezing.
The balances included Sh4.2 million, Sh2.9 million, Sh2.6 million and Sh1.4 million in separate Equity Bank accounts, Sh2.2 million at Diamond Trust Bank Sh1.1 million at Co-operative Bank and additional foreign currency balances amounting to over Sh8 million
ARA argued that between 2017 and 2019, Sonko received large and suspicious cash deposits in those accounts, which it believed were proceeds of crime and evidence of money laundering.
The agency sought to have the money forfeited to the State.
In its filings, ARA alleged that Sonko had received huge suspicious cash deposits and money transfer in US dollars and Kenyan shillings between August 2017 and December 2019 that could not be explained.
Investigators alleged these deposits formed part of a scheme to conceal and disguise illegally acquired wealth.
However, Sonko, through an affidavit, defended himself and said the funds were legitimate earnings from property sales in Kwale and Kajiado counties.
He produced copies of sale agreements showing transactions worth hundreds of millions of shillings, including the sale of parcels in KWALE/GOLINI/384 for sh 150 million, KWALE/S. N. KUNDUTSI “A” for Sh175 million, and several others ranging between Sh24 million and Sh53 million.
Sonko further explained that part of the money had been placed in various bank accounts years before he became Nairobi Governor, and therefore could not be linked to abuse of office.
Justice Sifuna faulted ARA for failing to verify Sonko’s explanations, sale agreements and banking history, saying its case was built on suspicion rather than evidence.
“The evidence so far on record is insufficient to support the assertion that the funds… are proceeds of crime. There is therefore no legal basis for ordering forfeiture,” the judge ruled.
He added that investigators must act professionally and not appear to be driven by vendetta.
“The agency cannot wake up one day and start investigating someone without a report or credible complaint. Investigations have to be thorough, air-tight and water-tight.”
The judge also observed that ARA only produced bank statements from 2017 onwards, when Sonko was governor, but failed to produce earlier records that could have shown a financial pattern.
This, he said, amounted to “cherry-picking” data to support its narrative.
In dismissing the suit, Justice Sifuna ordered the immediate release of the funds that had been frozen since 2020, unless held for another lawful reason.
The court also criticized ARA for relying only on bank statements beginning in August 2017, when Sonko became governor, and failing to provide records from before that period which could have allowed for a fair comparison.
“Being a public institution, the ARA is under a public duty to provide not only the evidence that incriminates a suspect but also that which exculpates him if available. Unfortunately, this was not the case here,” the judge observed.
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