The High Court has rejected an application seeking to reverse a decision to seize Sh35 million from one of the suspects implicated in the theft of funds at the National Youth Service (NYS).
James Nderitu Thuita went back to the High Court seeking to overturn the decision, which was issued in April this year, saying he had found receipts and documents to support the supplies he made to the NYS.
But Justice Mumbi Ngugi dismissed the application stating that it was an afterthought, meant to seal the loopholes in the judgment.
The Judge said the reasons advanced by the businessman, over the failure to table the documents during the trial, appears somewhat contrived to suit the purposes of the application.
“Whatever their reasons, their explanation after the full hearing of the forfeiture application, after they had every opportunity to present their case, does not satisfy the court that their attempt to re-litigate a matter that is already determined,” the Judge said.
Mr Thuita had stated that he had given the documentary evidence to his lawyer but the advocate failed to use them in his defence, thinking it was premature.
He claimed he learnt after the judgment that the documents were crucial and were actually needed in his defence. He blamed his lawyer for the mistake or a lapse adding that he should not be punished for the mistake of the lawyer.
Assets Recovery Agency through Peter Ngumi said the agency had already written to chief executive officers of Absa Kenya, Standard Chattered and Equity Banks, asking them to transfer the amounts for preservation.
Mr Ngumi argued that the late presentation was an afterthought because Mr Thuita had the evidence all along, but chose not to use them.
Evidence presented in court showed that Mr Thuita through his companies received Sh1.1 billion from NYS within eight months in 2017.
The companies including Flagstone Merchants, Firstling Supplies, received approximately Sh1,100,375,521 between March and October 2017.
The Judge said the businessman failed to explain the large deposits from NYS, and in the absence of reasonable explanation, the funds could be assumed to be proceeds of crime.
Transfer of funds
“In the absence of an explanation regarding the legitimate basis for the transfer of funds, the conclusion that the funds are proceeds of crime and liable to forfeiture is inevitable,” the Judge said.
She said the companies were beneficiaries of proceeds of crime and the funds held in several accounts were obtained directly as a result of money laundering and other predicate offences. “In my view, the applicant has placed material before the court that indicate that the funds were transferred to the respondents in circumstances that show, on a balance of probabilities, that these funds are proceeds of crime,” the Judge added in the April 20, judgment.
The money in seven accounts were frozen in 2018 following an application by ARA. The agency argued that investigations revealed that the traders fraudulently received funds from NYS through business entities and personal accounts and associates and split them in several transactions, in a bid to conceal the proceeds.
The court heard that the funds were intra-transferred into accounts owned by family members and associates, hence suspicion that they were proceeds of crime, which should be forfeited to the government.
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