The High Court ordered the forfeiture after finding that millions of shillings transacted through bank and M-Pesa accounts, as well as 18 properties and three motor vehicles, constituted unexplained assets under Section 55 of the Anti-Corruption and Economic Crimes Act.
In a judgment delivered by Justice B.M. Musyoki, the court noted that the defendants had not been accused of committing a specific offence in the proceedings, but found a high possibility of abuse of office and corrupt conduct.
The judge, however, held that EACC was not required to prove a specific corrupt act to secure the forfeiture of unexplained assets.
The court said the purpose of a forfeiture order is to divest property owners of assets they are unable to demonstrate were lawfully acquired.
Among the transactions declared unexplained were Ksh.50,398,428 transacted through Nyakundi’s Co-operative Bank account, Ksh.16,323,000 through his NCBA account and Ksh.27,760,908 through his M-Pesa line.
A further Ksh.9,334,194 was transacted through another M-Pesa line associated with Nyakundi, while Ksh.4,260,000 seized pursuant to orders issued by the Milimani Chief Magistrate’s Court was also declared an unexplained asset.
The court also identified transactions involving Otwori’s accounts, including Ksh.2,062,665.30, Ksh.12,242,381.50, Ksh.88,088,547.86 and Ksh.13,150,000 across various Equity Bank and Equity Investment Bank accounts.
Another Ksh.14,221,858.08 transacted through her M-Pesa line was also declared an unexplained asset.
Justice Musyoki ordered that any credit balances in the specified accounts be forfeited to the Government through EACC, with the respective banks and service providers directed to facilitate compliance.
The forfeiture order also covered 18 properties, including properties registered in Nyakundi’s name, one jointly registered to Nyakundi and Otwori, and several parcels registered to Otwori.
Four properties in Nairobi/Block 105 were registered to The Bantu Hotel and Resort Company Limited.
The court declared the properties unexplained assets and ordered their forfeiture to the Government, directing the Chief Lands Registrar and respective land registrars to facilitate implementation of the orders.
Justice Musyoki also ordered the forfeiture of three motor vehicles registered to Otwori. The Director General of the National Transport and Safety Authority was directed to facilitate compliance with the order.
In explaining why it opted for forfeiture rather than ordering the defendants to pay the value of the unexplained transactions separately, the court said the funds had largely been absorbed into the acquisition and development of landed properties and businesses.
The court found that it would not be fair to order the defendants to pay the sums in addition to forfeiting assets that had already been traced.
“I am minded to forfeit what has been traced rather than going for restitution,” Justice Musyoki said.
