A businessman’s quest to access his bank accounts and top-of-the-range vehicles has hit a snag after his plea was rejected by a bench of three judges ruling that he failed to demonstrate the hardship he suffered following the seizure.
The Court of Appeal ruled that Anthony Ng’ang’a Mwaura, who has been accused of purchasing five vehicles using funds stolen from Nairobi County, should await the outcome of the case on forfeiting the assets to the State.
“In the event the appellants believe the orders were misplaced, or that they are causing hardship as stated, the best avenue is for them to submit to the hearing of the forfeiture application so that a decision may be made appropriately,” Judges Asike Makhandia, Jamila Mohammed and Mbogholi Msagha said.
Mr Mwaura’s vehicles and accounts were frozen last year by High Court judge Mumbi Ngugi, following an application by the Assets Recover Agency (ARA).
But he moved to the appellate court, saying he was undergoing hardship because he cannot access his accounts and the vehicles seized were his tools of trade.
Mr Mwaura and Rose Njeri, the directors of Hardi Enterprises Ltd and Toddy Civil Engineering Company, wanted the orders lifted since they were carrying out other projects with several county governments and the national government.
He added that three of the vehicles seized were bought before the companies secured tenders with Nairobi County.
The agency opposed the application, saying the preserved vehicles were not tools of trade, but luxury vehicles and that the police had identified specific vehicles deemed to be tools of trade and excluded them from the application for seizure.
The seized vehicles include a Toyota Vanguard, Mercedes Benz, Toyota Hilux, Toyota Lexus and a Toyota Land Cruiser.
Evidence presented by the agency showed the companies made suspicious cash deposits and withdrawals, intra and inter-bank transfers within the same banks and other banks.
In November 22, 2018, the agency said Hardi received some Sh102,414,130 through its Equity Bank from City Hall and split the money into five branches of Sh5,156,118, Sh48,651,988, Sh26,154,700, Sh18,063,443 and Sh4,387,839. Some of the money was later transferred to Toddy, while some were wired to the then governor of Nairobi, Mike Sonko’s account.
Another account frozen at Equity Bank received a total of Sh175.5 million “in eight suspicious split transactions between October 15 and November 22, 2018” from the county government.
ARA said the companies were conduits used by Mr Sonko to embezzle funds from the county or were used to launder money stolen from City Hall.
Mr Mwaura argued that the companies were undertaking 15 projects in various counties, projects which are funded by taxpayers.
Toddy Engineering, he said, was undertaking several projects, among them the rehabilitation of two roads in Kiambu town and the construction of a modern outpatient block in Chuka, for the Tharaka Nithi County government.
The company said it was also undertaking routine improvement of Kandanu-Kathathini road in Tharaka Nithi and some of the vehicles which were seized had been hired for garbage collection for Nairobi County.
“The learned trial Judge, therefore, correctly observed that in an application under section 89 of POCAMLA, the appellants were supposed to demonstrate hardship that they faced as a result of the preservation orders,” the judges said.
The court ruled that it was not difficult to conclude that the allegations raised by Mwaura were premature.
Justice Ngugi issued temporary orders to preserve Sh1.5 million held at an account in Equity Bank and Sh6.9 million held at Sidian Bank run by Hardi Enterprises Ltd and Toddy Civil Engineering Company, respectively.