Civil Asset Recovery in Focus: Key Developments on Burden of Proof, Constitutional Protection and Proceeds of Crime
Civil asset recovery remains one of the most dynamic areas of Kenya’s anti-corruption and
anti-money laundering framework. As litigation before the Anti-Corruption and Economic
Crimes Division continues to evolve, the courts have provided important guidance on the
constitutional protection of property, the evidentiary burden in forfeiture proceedings, and
the distinction between recovery proceedings under the Proceeds of Crime and AntiMoney Laundering Act (POCAMLA) and the Anti-Corruption and Economic Crimes Act (ACECA). These developments have significant implications for financial institutions, corporates, public officers and individuals whose assets become the subject of
investigation or recovery proceedings.
A recurring issue is whether allegations that property constitutes proceeds of crime
automatically deprive it of constitutional protection under Article 40 of the Constitution.
Kenyan courts have consistently emphasised that property rights remain protected unless
and until the statutory threshold for deprivation is met through due process. Investigations
and preservation orders are therefore not mere procedural formalities; they serve as
essential safeguards against arbitrary deprivation of property and must be conducted
lawfully, fairly and within the framework established by statute.
The courts have also reaffirmed the important distinction between forfeiture proceedings
under POCAMLA and recovery proceedings under ACECA. While both statutes facilitate
recovery of unlawfully acquired assets, they operate under different statutory frameworks
and pursue distinct objectives. Civil forfeiture under POCAMLA is directed at the property
itself and does not depend upon a criminal conviction, whereas recovery proceedings
under ACECA focus on the recovery of unexplained or unlawfully acquired assets within
the statutory scheme established by that Act. Understanding these distinctions is critical
when assessing the applicable evidentiary burden and litigation strategy.
Another significant area of judicial consideration concerns the burden of proof. Courts
have reiterated that the investigating agency—whether the Ethics and Anti-Corruption
Commission (EACC) or the Assets Recovery Agency (ARA)—must first establish a sufficient
factual basis linking the property to alleged criminal conduct or unlawful acquisition. The
evidentiary burden does not shift merely because allegations have been made. Rather, it
arises only after the agency has presented credible evidence establishing a prima facie
connection between the property and the alleged unlawful conduct. At that stage, the
respondent may be required to provide a reasonable explanation for the lawful source or
acquisition of the property. What constitutes a reasonable explanation will depend on the
facts of each case, including the availability of contemporaneous financial records,
legitimate income, transactional documentation and other objective evidence capable
of demonstrating lawful acquisition.
These principles also reinforce the relationship between civil forfeiture and the
constitutional presumption of innocence. Because forfeiture proceedings under POCAMLA
are civil in nature, they do not determine criminal guilt and do not displace the presumption
of innocence applicable in criminal proceedings. Instead, they are directed towards
determining whether specific property constitutes proceeds or an instrumentality of crime
under the applicable statutory framework. Nevertheless, courts have consistently stressed
that statutory powers of investigation, preservation and forfeiture must be exercised
proportionately and in accordance with constitutional guarantees of due process, fair
hearing and protection from arbitrary deprivation of property.
As Kenya’s asset recovery jurisprudence continues to develop, these decisions provide
important guidance for investigators, financial institutions, regulated entities and asset
holders navigating corruption, financial crime and civil forfeiture proceedings. They also
underscore the importance of maintaining robust financial records, demonstrating
legitimate sources of wealth and adopting effective governance and compliance
frameworks capable of withstanding regulatory scrutiny.
Our White-Collar Crime, Asset Recovery and Dispute Resolution teams continue to advise
clients on investigations, civil forfeiture proceedings, anti-corruption litigation, anti-money
laundering compliance, asset tracing and recovery, and complex constitutional
challenges arising from the exercise of investigative and enforcement powers.
