A Nairobi-based businessman has escalated the battle between him and the Asset Recovery Agency (ARA) by going after the agency’s director.
In his application filed before the anti-corruption court on March 26, 2024, Anthony Odiero wants the court to determine first how Brigadier Alice Mate got into office.
He states that if the judge finds that she was not properly recruited, she should refund the salary and allowances she has received from the date she was appointed.
Odiero, through lawyer Ndegwa Njiru, argues that to date, there is no board appointed to recruit the agency’s director.
Hence, according to him, the appointment by the Attorney-General (AG) of the military lawyer to head ARA is unconstitutional.
If Odiero’s argument that Mate should have been competitively recruited will be allowed by the court, the agency will be in limbo over cases that were filed from the time she took over office from Muthoni Kimani.
Njiru is of the view that Mate has no powers or authority to institute any case as there is no evidence of how she was recruited to head ARA.
“The actions of the honourable Attorney General in appointing the Asset Recovery Agency director without the mandatory recommendation from the Asset Recovery Advisory Board renders the said appointment and the continued occupation in office of the current director of Asset Recovery Agency a nullity and thus incompetent to commence any suit, for lack of locus standi,” argues Njiru.
According to the lawyer, Proceeds of Crime and Anti-Money Laundering Act requires that ARA is run by Asset Recovery Agency Advisory Board.
Further, he states, the board ought to recommend, after carrying out interviews, a person who should be ARA’s director.
He is of the view that without a board in place, the AG violated the law as there is no advertisement, shortlisting and finally vetting of Mate before she got to the office.
The lawyer says that other Kenyans missed the opportunity to apply for the same position, adding that it was discriminatory and unfair.
Njiru claims that the appointment was done in secrecy.
“Honourable Attorney General violated the provisions of Article 10 of the Constitution of Kenya by appointing Brigadier Alice Mate as the director of Asset Recovery Agency without regard to the principles of the rule of law, accountability, public participation and transparency,” says Ndegwa.
In his supporting affidavit, Odiero claims Mate’s tenure in office is a nullity due to AG’s failure to follow the law.
According to him, the AG is aware that he cannot second a person to head the agency as it is an independent body.
Mate was recruited to head ARA after Muthoni’s exit in April 2021.
Odiero asserts that the case instituted by the agency against him is an illegality since Mate is a stranger in law.
“If this honourable court continues to entertain the current proceedings as they are, the court will be perpetuating an illegality as the proceedings were commenced by a stranger and an alien to the law,” he argued.
ARA filed the case seeking to have Odiero forfeit Sh55 million. It claimed that it suspected that the money was proceeds of crime.
Initially when ARA was seeking to freeze his accounts before the magistrate court, it claimed that it had intelligence that the money was obtained from drug trafficking and money laundering.
However, at the High Court, it dropped the drugs narrative and held onto suspicion that the Sh55 million in his account was laundered. The agency stated that the money had been flagged from his account at National Bank of Kenya (NBK).
“Since the bank account was frozen on June 28, 2023, I have been subjected to inhumane and degrading treatment, noting that I have been labelled as a drug trafficker, wash wash guy, money launderer,” Odiero told High Court judge Esther Maina.
He asserted that if the agency would have investigated who he was, and taken documents that he had provided as evidence to support his source of money, it would have realised that there was no figment of truth in their claim.
He said that ARA summoned him on August 4, 2023. The lower court’s case file was closed on August 25, 2023.
“I was not listed as a party and neither was I made aware of the said application… I only got to learn of this order when I went to deposit to the said account on July 1, 2023,” he said.
According to him, the agency’s investigators allegedly never asked him in the two days meeting about drug trafficking or money laundering but grilled him on his lifestyle.
Odiero said even after he voluntarily provided documentation on the source of his money, the agency rejected the same.
“I honoured the summons by the applicant and attended to the said summons on 8th and 9th August 2023 and in the said meeting, I was neither informed of any complaint or evidence of money laundering or drug trafficking allegations but was instead asked questions that purported to audit my lifestyle and source of income. Curiously, the applicant officers declined to take my business invoices which explained the cash deposits to my accounts,”
he argued.
He lamented that he was not aware of the magistrate’s orders freeing the accounts as the agency never roped him in as a party to the case.
Although the account and the money in contest was his, he said ARA only named NBK as a respondent in its
application filed on June 28, 2023 to freeze the account for 21 days.
Odiero stated that the agency, which is under the AG’s office, sought to extend the orders on July 20 for a further 14 days.
When the case came up for a mention on August 3, 2023, ARA asked for a further extension of the orders until August 18, 2023.
ARA also went for his two vehicles. However, the businessman said that the two cars had no nexus to the money and the account.
“It was never and it can never be the business of the law to criminalise enterprise for having money,” he argued.
Odiero explained that although ARA focus was bank transactions between September 29, 2020, and February 16, 2023, he purchased the first vehicle on May 10, 2019, while the second one was bought two years later, on October 4, 2021.
In its application, ARA claimed that it suspected that Odiero had used proceeds of crime to purchase the two cars.
The agency claimed the accused had unclear transactions totaling $1 million (Sh131,685,000).
“Investigations established that the respondent acquired the following vehicles through money laundering,” ARA claimed in its application signed by Sally Amadi.
Money laundering
The agency alleged that on June 12, 2023, it allegedly received information on suspected money laundering.
Odiero dismissed the claim.
The businessman stated that he learned on social media about the vehicles and personally took them to the agency’s offices.
On the money, Odiero explained that he earned the money from consultancy, brokerage fees and sale of flowers. His main market, he said, is United Arab Emirates (UAE).
“It is clear to me from the conduct and sequence of the applicant’s action in my case, right from the application before magistrate’s court, that the applicant was and is still on a fishing expedition seeking to nail me and cause me to admit non-existent offences,” he maintained.
Justice Esther Maina will mention the case on April 4, 2024.
