Jared Kiasa Otieno has signalled his intention to fight to recover his luxury vehicle, which was declared proceeds of crime by the High Court in February.
In a memorandum of appeal, Mr Otieno says Justice Esther Maina erred by stating that the motor vehicle—a Bentley Continental GT—was acquired from proceeds of crime. The vehicle is registered in the name of Yugni Holdings Limited, where Mr Otieno is a director.
Another vehicle, a Porsche Panamera registered under the name of Cleanen Limited, had been cleared by another judge who said it was not tied to any criminal activity, although the Assets Recovery Agency (ARA) has since appealed the decision.
“The judgement by the Hon Lady Justice E. Maina dated 8th February 2024 finding that motor vehicle registration no. KCU 966C is proceeds of crime and that the said motor vehicle be forfeited to the government be set aside,” he says in the notice filed on February 29.
Mr Otieno faulted the judge for finding that the move to file nil returns to the Kenya Revenue Authority (KRA) during the period he acquired the vehicles was proof that they were proceeds of crime.
“The learned judge erred in law and fact in applying a standard of proof that was antithetical to Section 92(1) of the proceeds of Crime and Anti-Money Laundering Act,” he said.
He pointed out that the decision had the consequence of violating his constitutional right to be presumed innocent until proven guilty.
International syndicate
ARA obtained an order on August 22, 2019 to preserve the vehicles alleging that Mr Otieno was part of an international syndicate that obtained money from investors by pretending that they have precious metals such as gold.
According to ARA, Mr Otieno had no known source of legitimate income and had been filing nil tax returns with KRA at the time the vehicles were acquired and the period under investigation.
The vehicles were purchased for $453,907 (Sh61 million at the current exchange rates) and registered under the name of Yugni Holdings.
An investigator with ARA said the payments for the motor vehicle were done in instalments between March 9, 2018 and April 16, 2019, through a law firm.
He pointed out that Mr Otieno was later charged in court on May 21, 2019 and the vehicle was transferred to Cleanen Ltd yet it was not party to the sale agreement.
The agency reiterated that Mr Otieno entered into an agreement with Sounthorn Chantavong, a director of Simoung Company Ltd, for a loan of $3 million and that Mr Otieno was involved in a scheme to defraud Simoung Company Ltd.
The court heard that after meeting, Simoung transferred the amount in two instalments to Mr Otieno’s accounts and the funds were then distributed to various parties.
Mr Otieno had defended himself saying he was an honest businessman with local and international dealings. He said he was tax compliant and the agency failed to show a link between the criminal case and the vehicles.
Criminal case
He denied having dealings with the complainant in the criminal case, arguing that he was neither a party nor a witness to the transaction and loan agreement.
Mr Otieno further said he purchased the vehicle in 2015, four years before he was charged. He also defended the registration of the vehicle in the name of the company, saying it was done in good faith and not with the intention of disrupting the investigations as alleged.
“It is my finding that the applicant has also adduced evidence, on a balance of probabilities, that at the material time, the respondent and the interested parties were not engaged in any form of business or trade which could have afforded them that kind of money or any portion of it,” Justice Maina ruled.
The judge said that by filing nil returns, Mr Otieno was saying he had not generated any income during the period he acquired the vehicle.
She further said Mr Otieno was arrested in circumstances that gave rise to reasonable grounds to believe that he was involved in activities that may have been unlawful.
“It is my finding that the applicant has demonstrated on a balance of probabilities that the respondent had no legitimate source of income. It has discharged the legal burden and the evidential burden shifts to the respondent to prove that he acquired the motor vehicle lawfully,” the judge said.
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