EACC bets big on recovering stolen wealth in graft war

Life is no longer at ease for public officers who have accumulated wealth beyond the scope of their known legitimate sources as the Ethics and Anti-Corruption Commission (EACC) intensifies investigations, tracing and recovery of corruptly acquired assets.

Extending the string of its recent asset tracking and recovery cases, the Commission has moved to court to recover Sh25 million from a company associated with an employee of Turkana County Government that was paid millions of shillings for goods that it did not deliver.

Esther Lokai Elim, a director of Amailo Investment Company Ltd, is an accountant at the county and has used her kin to trade. Between March 2014 and July last year when the company’s accounts were frozen, the company had been paid Sh185 million.

The Sh25 million targeted by the Commission was paid for the supply of 6,024 (25kg) bags of corn soya blend, which were never delivered.

“During the period 2013-2019, knowingly held a private interest in various contracts entered into between the First Respondent and the County Government of Turkana, and in so doing, the Sixth Respondent (Ms Elim) engaged in a conflict of interest, committing an offence under Section 42 (3) of the ACECA,” the EACC argues.

The company accounts at Equity Bank, the Commission say, were first frozen last September for six months. The orders were extended in March but are also lapsing this July, but the Commission has established a case against the company to recover the money.

“Having instituted this recovery suit, the applicant is reasonably apprehensive that the 1st respondent (Amailo) will seek to dispose of, transfer or withdraw all the funds in the subject bank account to frustrate any decree that may be passed against it,” EACC says in the petition filed at the High Court, adding that several officials named in the case colluded with the company and issued a false inspection and acceptance certificate dated May 24, 2021, purporting that 6024 bags had been
delivered.

Elsewhere, life will never be the same again for two millionaire public officers with strings of properties and fat bank accounts to their names that are disproportional to their known legitimate sources.

This is after courts of law found, separately, that Gabriel Mbiti Mulei, a senior police officer and James Mwathethe Mulewa, a former managing director of the Kenya Ports Authority (KPA) could not explain the source of their assets.

The Court of Appeal sitting in Mombasa on July 8, upheld a High Court Judgement of April 2011 that had ordered the former KPA managing director to pay the Government of Kenya Sh63,683,794, being cumulative deposits made to his accounts in 2010, Sh3,683,861 cumulative interest of bank deposits and Sh11m being value of immovable property including two parcels of land No. MN/1/13483 and No. MN/1/1535.

The EACC, being the first respondent in the appeal and having already recovered Sh22,153,386, will now proceed to execute for the balance of the decretal sum of Sh74,683,794.

On the other hand, the High Court also declared Mr Mulei’s wealth including four bank accounts, six vehicles and six parcels of land in Malindi, Kwale township and Ndithini/Mananja as unexplained assets.

In addition, the court also ordered Mr Mulei in the June 30 judgement to pay the sum of Sh10,536,199 to the Government, being the cumulative bank deposits that he made between June 18 2008 and February 18 2011.

The EACC had moved the High Court in January 2011 under Sec. 55 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003 to declare that Mr. Mulei, then a Traffic Base Commander, Malindi Police Station, was in possession of unexplained assets valued at Sh27,573,959 which should be forfeited to the Government.

Forfeiture of assets is provided for under the Anti-Corruption and Economic Crimes Act, 2003 (ACECA). The law provides that a public officer in possession of property whose value is disproportional to their known legitimate sources of income shall, unless the contrary is proved, be presumed to have acquired the same through corrupt conduct. 

Where EACC reasonably suspects that a person is in possession of unexplained assets, it issues a statutory notice requiring the person to explain how they acquired the wealth in question.  Where the suspect is unable to explain or gives unsatisfactory explanation, EACC files a civil suit and upon demonstrating to the court, on a balance of probabilities, that the assets in question are unexplained, the burden of proof shifts to the suspect to convince the court that the assets were not acquired through corrupt conduct. Should the suspect fail to satisfy the court, they are ordered to forfeit the unexplained assets to the State. (