Ex-Nairobi County officer ordered to forfeit Sh114m to State

The Court of Appeal has ordered former Nairobi County chief finance officer Jimmy Kiambaa to forfeit Sh114 million and seven prime properties to the government.

Delivering their judgment, Appellate Judges Imaana Laibuta, Abida Ali Aroni and John Mativo said the millions were unexplained cash in his and his wife Tracy Mbinya's bank accounts.

Kiambaa had filed an appeal challenging a High Court ruling ordering him to forfeit Sh282,648,604 of unexplained wealth to the government.

This was after the Ethics and Anti-Corruption Commission (EACC) moved to court following an investigation which showed disparities between the ex-officer’s assets and his known legitimate sources of income.

Kiambaa was however aggrieved and he moved to the Court of Appeal faulting the trial court for having made errors which resulted in the judgment.

He argued that the trial court, in arriving at its findings, had considered deposits and gross revenue as ‘unexplained assets’, without analysing the withdrawals and/or transfers from his and his wife’s account.

He also claimed that the court had failed to independently establish the total deposits in their accounts and that neither did it establish a base value of the deposits and/or income subject to the allegation that there was a disproportion between known and unknown income.

Further, he said the court had failed to appreciate the well-explained earnings from various businesses, even though the schedule of the earnings was analysed in the financial statements.

It was argued that during the period of interest being 2007 and 2013, Kiambaa earned a total of Sh236,981,010 from rent, water business and hotel businesses, saying they were all legitimate earnings.

During the same period, his wife and their company Jimbise Limited, earned a total of Sh302,489,110 from her businesses and rental income earnings.

EACC opposed the appeal, disagreeing with the finding that the money from Tracy's design business was clean.

It said there was no evidence including registration documents, business permits or tax returns presented to the court to demonstrate its existence.

In a cross-appeal, the Commission opposed the court’s findings that the purchase of some six properties was sufficiently explained.

It also faulted the court for failing to question the increase in the rental income for some apartments during the period of interest.

The rental income declared between 2007 and 2009 was Sh600,000 and it escalated to Sh95 million in 2011-2013.

Upon determination, the court found that Kiambaa could not indeed explain how his wealth had risen within six years.

"We must say that this explanation coming from one who has an accounting background appears casual and unacceptable, to say the least. In any event, the question is how the 1st appellant’s (Kiambaa) rental income increased from Sh1 million a year to Sh423,000,000 within six years. There was no reasonable or any explanation given on the substantial rise in the rental income," the judges said.

In its ruling, the three-judge bench agreed with EACC that the High Court had erred by failing to interrogate the difference in income between 2009 and 2013, which had skyrocketed from Sh600,000 to Sh95 million within six years.

They also agreed with Kiambaa that he was holding Sh124,893,743, deducting Sh11 million withdrawn from the account which left Sh113,893,743.

"We therefore agree with the appellants, only to the extent that, the judge erroneously arrived at the sum of Sh282,648,604 as cash in the bank," they said.

In conclusion, Judges Laibuta, Aroni and Mativo ordered Kiambaa and his wife to forfeit the Sh113,893,743 to the government.

"We further order and direct the payment by the appellants of the current market value of the assets listed in Paragraph b above (the seven properties) or forfeiture in lieu of payment to the government of Kenya of the current value of the said assets forthwith," the appellate judges ruled.