- Justice Esther Maina said public interest dictates that a person ought not to be allowed to continue enjoying illicit wealth.
- The judge agreed with the Assets Recovery Agency that the vehicles were acquired using illicit funds.
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The High Court has ordered a couple facing charges of human trafficking to surrender two of their vehicles after they were found to be proceeds of crime.
Justice Esther Maina said public interest dictates that a person ought not to be allowed to continue enjoying illicit wealth.
“Such wealth must be forfeited to act as a deterrent. Learners must take cognisance of this and take precautions to cushion themselves from customers such as the respondents who use their facilities to launder their ill-gotten property,” she said.
The judge agreed with the Assets Recovery Agency that the vehicles were acquired using illicit funds stemming directly or indirectly from trafficking in persons, making them liable to forfeiture.
The vehicles were bought using loan facilities from two financial institutions who are listed as interested parties.
The judge in analysing the case said she is convinced the loans borrowed from the interested parties by Elosy Kendi Mutwiri and Felix Mutwiri Muthamia were just decoys to conceal and disguise the source of funds used to acquire the two vehicles.
“It is evident that after taking the loans and acquiring the cars, which they then used as collateral, they used monies, which they acquired through the illegal trade, to service those loans,” she said.
“That explains why after they were arrested they could no longer service the loans,” she added.
In the case, the Assets Recovery Agency sued Kendi and Muthamia and listed the two financial institutions that awarded them loans as interested parties.
The agency said the interested parties are both financiers in respect to the purchase of the vehicles and are co-registered owners, having extended loans to Kendi for purchase of the vehicles.
They based their case on information received from the Directorate of Criminal Investigations of suspected trafficking of persons by Kendi and Muthamia.
The agency started investigations to inquire into the activities of the couple with a view of identifying, tracing, freezing and effecting forfeiture of proceeds of crime under the Proceeds of Crime and Anti-Money Laundering Act.
Investigations established the two used funds sourced directly or indirectly from trafficking in persons to buy the two vehicles.
The couple did not file their responses in the matter.
Situ Investments, one of the interested parties, opposed the application, saying the company is engaged in offering asset finance to clients.
They told the court that on December 15, 2020, it advanced a loan of Sh1 million to Kendi to purchase a car, which in turn she offered as security for the loan. The vehicle was registered in her name and that of Situ.
But she defaulted with the outstanding balance being Sh1.8 million.
The vehicle has been at DCI and Situ said it has been unable to recover its expenses and that the vehicle has depreciated in value due to lack of maintenance.
The company argued that it will suffer if the vehicle is forfeited and urged court to dismiss the application.
NCBA bank, the other interested party, said the funds used to purchase the vehicle were obtained from them.
The bank said it did not suspect that Kendi was involved in crime.
But the Assets Recovery Agency in supporting its case said it's "a classical scheme of money laundering as criminals usually create sophisticated complex schemes to camouflage the assets and benefits derived from criminal activities.”