According to a British Law Firm, Mishcon de Reya, the requirements for obtaining an Unexplained Wealth Order “UWO” stipulates that “there are reasonable grounds to suspect that the known sources or the respondents’ lawfully obtained income would have been insufficient for the purposes of enabling them obtain the property”. UWOs provide an opportunity for enforcement agencies to confiscate assets without having to prove that the property was obtained from criminal activity.
This article discusses UWOs in Kenya.
Agencies often face difficulties trying to prove how individuals obtain their wealth where ownership of the assets is very complex. It therefore becomes necessary to arrest and charge these individuals with criminal offences.
The court therefore has to issue an order known as the Unexplained Wealth Order “UWO”, compelling its recipient or target to reveal the sources of their UW.
This came into force January 2018 to help authorities identify and seize property suspected to have been bought by laundered criminals funds, most commonly from foreign sources. It is the UK’s much- vaunted tool to tackle criminal wealth.
UWO In Kenya
Corruption in Kenya spans for over 4 decades and has been a headache for all sitting presidents. In its Anti-Corruption and Economic Crimes Act “ACECA”, section 2 provides for unexplained assets ‘’UA’’ as assets acquired around the time a person was reasonably suspected of corruption or assets disproportionate to the source of income at the time there is explanation.
Kenya’s ACECA provision targeting UA is a form of qualified civil illicit enrichment law, useful where there is still strong evidence that a public official has inexplicably accumulated an amount of wealth that cannot be justified by reference to his/her legal income.
Section 55 of its ACECA provides that the public officer be given statutory notice to explain how the wealth was acquired and would be free if satisfactory explanation is given, else the respondent would commence proceedings leading to the forfeiture of the said suspected wealth. In the case of Assets Recovery Agency v Pamela Aboo; Anti-Corruption Commission (2018), Lady Justice Hedwig I. Ong’udi held that ‘’where the person against whom allegations has been made does not give satisfactory explanation to rebut the allegations, it means what has been presented is not challenged’’. In Stanley Mombo Amuti v Kenya Anti-Corruption Commission (2019), the Court of Appeal held that Failure to satisfactorily explain the lawful source of assets means forfeiture. In Anti- Corruption Commission v Ministry of Medical Services & Anor, the defendant’s assets were not commensurate to his income, therefore he was given an UW order.
The UWO places the burden on the individual rather than the agency to prove how they have accumulated their wealth while producing evidence for same.
Since 2020, Kenya has recorded 100% success rate in cases of UW with an estimated USD 6.4 million in funds recovered thereby combatting UW.