On July 6 last year, the Assets Recovery Agency (ARA) moved to court and obtained orders freezing more than Sh6 billion belonging to Nigerian start-up Flutterwave over claims of money laundering.
The money was spread in 62 bank accounts and Safaricom pay bill numbers. ARA claimed that the money was stashed in different bank accounts to conceal its nature, source and movement.
The agency obtained the orders. But six months later, it appeared to have a change of heart and started withdrawing the cases, in a trend a High Court judge Nixon Sifuna has termed 'notorious' and wanting in transparency.
The judge told the prosecutorial and recovery agencies that the withdrawal of cases midstream betrays and erodes public trust that Kenyans should have in them.
The rare lashing out by the court has put the spotlight back on the cases while reviving debate on the motivations behind the unprecedented withdrawals.
“The bodies entrusted with the duty to fight corruption, economic crime, organised crime and similar vices (including money laundering) should not abdicate their divine duty or become complicit in such vices,” the judge said.
Swear affidavit
The judge went ahead and directed the agency’s boss, Alice Mate, or any other high-ranking official of the agency to swear an affidavit detailing reasons for the change of heart and plans of withdrawing the matter.
Justice Sifuna said the prosecution should be transparent in their actions and their motions should not be question-begging and inviting scrutiny.
The court wondered what happened to the volumes of documents that accompanied the suit when it was filed in July last year.
“What about the evidence that the said Corporal (Isaac) Nakitare [the investigating officer] on oath in his affidavit stated he had over a period of time collected, and which is on the court file hitherto in five volumes?” the judge posed.
ARA moved to court in July last year after flagging the payment solutions firm as a possible conduit for money laundering.
In a few weeks, the agency had managed to freeze more than Sh6.2 billion in 62 bank accounts.
The Central Bank of Kenya (CBK) had in July last year ordered local banks to stop dealing with Flutterwave, arguing it was not licensed as its accounts got frozen under the country's anti-money laundering laws.
The funds frozen in the petition were in the names of Flutterwave, Hupesi Solutions Ltd and Adguru Technology Ltd.
Things changed when after the August 2022 General Election the agency started filing applications to drop the cases, which were allowed by courts. Some of the cases involved Flutterwave and related companies.
In the latest case, the agency indicated its plans to withdraw the matter in December but it was not until May 3, that ARA made the formal application and the matter was taken before Justice Sifuna.
The judge noted that when the file was taken to him, the agency and lawyers representing the firm requested the case to be mentioned in camera as there were ongoing negotiations.
Reasons for withdrawal
Justice Sifuna added that when the case was mentioned, the prosecution did not give reasons for the withdrawal but only stated that there was no evidence to sustain the case, hence no reason to ‘waste judicial time’.
He rejected the plea. The money still frozen amounts to about Sh393 million and is held at UBA Bank, Access Bank and several Safaricom pay bill numbers.
"I hereby politely decline the said withdrawal as made and order that these proceedings shall be terminated only upon an affidavit sworn by the chief executive officer, Assets Recovery Agency, the plaintiff herein, and in the absence, a similarly high-ranking officer of the agency and not advocates involved in the proceedings as its litigants," Justice Sifuna said.
The judge added that ARA by virtue of being sustained by public funds and resources must be accountable to the Kenyan public.
"Yet the agency is a public body that is run by public funds and accountable to the Kenyan public for decisions and actions including proceedings and their termination," he said.
"They and the persons working for them must at all times be guided by public interest and all actions and decisions embrace patriotism, transparency and accountability as the core values under our constitution."
Justice Sifuna directed the matter to be mentioned on July 27, to confirm compliance with his directive.
