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Businessman Seeks to Oust Assets Recovery Agency Boss

Anthony Odiero argues that since there is no board, the appointment by the Attorney-General of Ms Alice Mate is unconstitutional

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A Nairobi-based businessman has taken the battle between him and the Assets Recovery Agency (ARA) to the Anti-Corruption Court, claiming that ARA CEO, Ms Alice Mate, was not properly recruited, and ought to refund the salary and allowances she has received from the date she was appointed.

In his application filed before the anti-corruption court on 26th March, 2024, Mr Anthony Odiero, through lawyer Ndegwa Njiru, argues that to date, there is no board appointed to recruit the agency’s director. Hence, the appointment by the Attorney-General (AG) of Ms Mate, the military lawyer to head ARA is patently unconstitutional, prima facie and ab initio.

Justice Esther Maina will mention the case today, April 4, 2024. Lawyer Njiru is of the view that Ms 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 the ARA is run by Asset Recovery Agency Advisory Board. Further, he states, the board ought to recommend after carrying out the requisite 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 was no advertisement, shortlisting and finally vetting of Ms Mate before she got to the office. Other Kenyans missed the opportunity to apply for the same position, Njiru argues, adding that it was discriminatory and unfair since the appointment was done in secrecy.

“The 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.

Controversial office tenure

In his supporting affidavit, Mr Odiero claims Ms Mate’s tenure in office is a nullity due to the AG’s failure to follow the law. “The AG is aware that he cannot second a person to head the agency as it is an independent body.”

Alice Mate was recruited to head ARA after Muthoni Kimani’s exit in April 2021.

Mr Odiero asserts that the case instituted by the agency against him is an illegality since Mr 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 Mr Odiero forfeit Ksh55 million that it claims are proceeds of unsubstantiated fraudulent activities.  Initially, when the ARA was seeking to freeze his accounts before the magistrate’s court, it claimed that it had “intelligence” that the money was obtained from drug trafficking and money laundering.

The lower court’s case file was closed on August 25, 2023.

By the time the case reached the High Court, ARA had dropped the “drugs” narrative but stuck to the “laundry” story while saying 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 had bothered to actually check out who he was, and perused provided documents as evidence of the monies’ source, they would figured there was no fig to cover the naked lie of their claim.

Nice motor vehicles

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 trafficking of drugs or money laundering but grilled him instead on his lifestyle, like his nice motor vehicles, which was highly suspicious.

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 even take my business invoices which would explain the cash deposits to my account,” he argued.

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He lamented that he was not aware of the magistrate’s orders freezing 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. The action is akin to retaliating against an entrepreneur for being liquid or a business for having capital, which is quite Bolshevik and ruins commerce in a country.

The case of two cars

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, without providing any proof. The agency claimed the accused had unclear transactions totalling $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.

The agency alleged that on June 12, 2023, it allegedly received information on suspected money laundering from a “tip”. Odiero dismissed the claim. The businessman stated that he learned on social media about the vehicles, showing a malicious campaign, and personally took them to the agency’s offices.

Odiero explained that he earned the money from consultancy, brokerage fees and sale of flowers. His main market 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 to non-existent offences,” he maintained.

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BT Correspondent
BT Correspondenthttp://www.businesstoday.co.ke
editor [at] businesstoday.co.ke
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