The High Court on Monday ordered Asset Recovery Agency (ARA) to produce its two investigators tomorrow afternoon to testify in a Sh55 million case pitting the agency against businessman Anthony Odiero.
Frederick Musyoki and Isaac Nakitare were to appear before Justice Patrick Otieno for a hearing yesterday.
The orders for them to appear were issued on July 13, 2024, by Justice Esther Maina.
However, ARA lawyer Mohamed Adow informed the judge he had difficulty with the investigators being on the witness stand.
He stated that two files were allegedly not before the court. At the same time, Adow said that Musyoki, a critical witness, had retired and was out of Nairobi.
Adow stated that ARA wanted the court to first rule on who would foot the cost of bringing Musyoki to court before he would be called as a witness. At the same time, while asking for adjournment, Adow said that the agency needed time to find out where he was.
“Musyokai is a senior citizen who has retired. We need to find out where he is, and we need to inform him. The respondent needs to bear the cost of the witness. That practice should be controlled. You have been invited to cross-examine witnesses on files not before court,” said Adow.
On Nakitare, the state lawyer said he was also out of Nairobi. According to him, Odiero’s lawyer Ndegwa Njiru ought to have sent the questions and affidavits he intended to ask the investigator for him to prepare the witness and the court to be at par with the parties about the case.
Asked about the orders by Justice Maina, Adow insisted that the file ARA used to investigate Odiero was allegedly before the magistrate’s court.
In response, Njiru said that ARA sued Odiero and tainted his reputation.
He stated that the agency had grown cold feet as those who swore the affidavits were to appear before the court for questioning. He argued that despite being aware that the file had been flagged as among those to be cleared during the Judiciary’s Rapid Response Initiative (RRI), the agency sought for an adjournment.
He asked the court to dismiss the case if ARA did not bring a witness.
“They (ARA) dragged my client before this court, they swore a litany of those affidavits. Justice Maina reviewed the case and issued orders. She raised the issue of Musyoki’s retirement and Nakitare was aware that he was to appear. We urge that Adow produces the witnesses,” replied Ndegwa.
Justice Otieno said that he was not convinced that Adow had done enough to bring the two witnesses. He however gave him until Wednesday afternoon to have the two in court.
“I am not convinced Mr Adow has done enough to comply with the orders of the court. I will allow Adow until August 14. Mr Ndegwa will identify the affidavits and serve a notice,” he ruled.
Odiero is the director of AIB Petals Limited and Ensign Insurance Brokers Limited. In his court papers, he accuses ARA of failing to investigate who he is and what kind of businesses he operates.
The businessman claims that ARA keeps on shifting goalposts and, in the process, tarnishing his reputation in court.
Initially, when ARA sought to freeze his accounts before a magistrate court, it claimed that it had intelligence that his money was obtained from drug trafficking. However, at the High Court, the agency dropped the drugs narrative and claimed that the Sh55 million in Odiero’s account was laundered.
ARA stated that the money had been flagged from his account at the National Bank of Kenya (NBK).
