• The Assets Recovery Agency (ARA) subsequently filed an application in court and obtained orders preserving the cash.
• But Bala immediately filed an application asking the court to set aside the orders.
The High Court has declined to set aside orders directing the preservation of over Sh100 million seized from a Nigerian traveller two weeks ago.
Mauzu Bala was at the Jomo Kenyatta International Airport en route to Dubai from Lagos, Nigeria, when he was arrested two weeks ago with the money ($880,000, €60,000 euros and ₦63,000) stashed in a bag. He failed to declare and show proof of the source of the money.
The Assets Recovery Agency subsequently filed an application in court and obtained orders preserving the cash. The agency quoted the Proceeds of Crime and Anti-Money Laundering Act, which requires a person to declare any amount above $10,000 - about Sh1 million).
But Bala immediately filed an application asking the court to set aside the orders. He claimed ARA obtained the orders without disclosing other facts to the court.
Bala told Justice James Wakiaga that the agency failed to disclose to the court that it had filed and prosecuted a similar application before the chief magistrate's court at the airport.
“The information presented to the court by the agency, which contributed to the ruling, was not accurate and was intentionally intended to mislead the court,” he said.
In seeking the release of his money, Bala said he has not been charged with any offence because he has not broken any law.
But the judge said the agency need not prove any predicate offence to succeed at the forfeiture stage. He said ARA is only supposed to satisfy the court that there are reasonable grounds to believe that the property in question is proceeds of crime or is to be used in criminal activity.
“The proceedings before court are to determine the criminal origins of the property in issue and are not a criminal prosecution against the agency where the presumption of innocence is applicable,” he said.
The court also found that the contention that the order was obtained on the basis of material nondisclosure lacks merit.
The issue of whether or not Bala had made the required declaration is not relevant at this stage as the application that was before the court was for the preservation of the cash.