Prosecutor’s role in Criminal Asset Confiscation under POCAMLA

and ODPP ACT.

A. INTRODUCTION

There are three types of forfeiture/ confiscation: criminal forfeiture, civil judicial
forfeiture, and administrative forfeiture.

 Criminal Forfeiture/ Confiscation: Criminal forfeiture/ confiscation

is brought as part of a criminal prosecution of a defendant. It is an in
personam (against the person) action and requires that the government
indict/ taint the property used or derived from the crime along with the
defendant. Criminal Forfeiture is applied after a suspect is convicted of
crime through an application for confiscation of proceeds of crime in the
possession of the suspect either directly or indirectly requires. Criminal
forfeiture ensues where there has been secured a criminal conviction after
trial by competent court of jurisdiction or plea of guilty and final orders
made after the conviction. Criminal forfeiture may be property based
(where the instruments of the crime are forfeited) or value based (where
the value equivalent is confiscated).

In Kenya, forfeiture is provided for in various statutes including the

Criminal Procedure Code and the POCAMLA. Under the POCAMLA,
forfeiture is provided for under Part VII thereof. Section 61 of the Act for
empowers the Attorney General (AG), the Asset Recovery Agency (ARA) or
the court to inquire into the benefit which the defendant may have derived
from committing the offence. In criminal forfeiture, an individual has the
right to contest the seizure through trial proceedings.

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 Civil Forfeiture/ Confiscation: Civil forfeiture is used in confiscating
the assets of a criminal where there is no conviction. It can be a case under
investigation or where there is an acquittal of a criminal offence but
proceeds of crime are available. An application for confiscation only
requires that there be sufficient evidence that the asset targeted is the
proceeds of crime. Civil forfeiture is useful when the suspect voluntarily
surrenders the proceeds of crime without subjecting himself or herself to
the judicial process, the offender has died, fled from the court’s
jurisdiction, there is no ample evidence to secure criminal conviction, the
offender has been acquitted in criminal proceedings (as the burden of
proof is on a balance of probabilities and thus lower than in a criminal trial
which is beyond reasonable doubt), there are ongoing investigations
involving complex crime where a restraint order is necessary, where there
is reasonable ground that a confiscation may be made against a person,
there is ongoing investigations against the property, the defendant depicts
criminal lifestyle and investigations commenced against him or her, the
property may be taken away from court’s jurisdiction or spent et cetera.
For civil forfeiture to ensue, the property must be realizable and directly or
indirectly in possession of the defendant. Referred to as an in rem (against
the property) action, it is an action filed against the property itself, rather
than a person. In civil judicial forfeiture, an individual has the right to
contest the seizure through trial proceedings.

 Administrative Forfeiture/ Confiscation: administrative confiscation

generally involves a non-judicial mechanism for confiscating assets used or
involved in the commission of the offense. It may occur by operation of
statute, pursuant to procedures set out in regulations, and is typically used
to address uncontested confiscation cases. The confiscation is carried out
by an authorized agency (such as a police unit or a designated law

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 enforcement agency), and oft en follows a process similar to that
traditionally used in customs smuggling cases. The procedures usually
require notice to persons with a legal interest in the asset and publication
to the public at large. Generally, administrative confiscation is restricted to
low-value assets or certain classes of assets. For example, legislation may
permit the confiscation of any amount of cash, but prohibit the
confiscation of real property. Houses and other real property may not be
forfeited administratively.
An example in the Kenyan context is in the course of criminal proceedings
where the subject of forfeiture is an exhibit, the prosecutor does not
require the courts permission to forfeit the exhibit as it is an instrument of
crime. However in the instance that someone is laying claim on the subject
for forfeiture then civil proceedings can ensue.
In addition to the foregoing, forfeiture/ confiscation may be conviction based or
non-conviction based.
It applies as below:

CIVIL forfeiture and criminal forfeiture contrasted and compared

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A criminal prosecution, followed by a conviction, sentence and even a criminal
forfeiture, is no bar to the invocation of the civil forfeiture provisions of Part VIII
of POCAMLA and conversely, the invocation of these provisions is not contingent
upon a conviction. By contrast, a conviction is indeed a precondition to the
making of a confiscation order in respect of the proceeds of unlawful activities
under S61 Pocamla.

61. Confiscation orders

(1) Whenever a defendant is convicted of an offence, the court convicting
the
defendant shall, on the application of the Attorney-General, the Agency
Director or
of its own motion, inquire into any benefit which the defendant may have
derived
from—
(a) that offence;
(b) any other offence of which the defendant has been convicted at the
same trial; and
(c) any criminal activity which the court finds to be sufficiently related to
that offence,

Part VIII - CIVIL FORFEITURE of POCAMLA provides for forfeiture in

circumstances where it is established, on a balance of probabilities,
that property has been used to commit an offence, or constitutes
the proceeds of unlawful activities, even where no criminal
proceedings in respect of the relevant crimes have been instituted.
In this respect, PART VIII needs to be understood in
contradistinction to PART VII – CRIMINAL FORFEITURE.  Part VIII -
CIVIL FORFEITURE is therefore focused, not on wrongdoers, but on
property that has been used to commit an offence or which
constitutes the proceeds of crime The guilt or wrongdoing of the
owners or possessors of property is, not primarily relevant to the
proceedings. Its structure and process is therefore different to that
contemplated by Part VIII. PART VII – CRIMINAL FORFEITURE, in
sections 56 to 80, provides for the forfeiture of the benefits derived
from the commission of an offence but its confiscation machinery
may only be invoked once a defendant has been convicted.
 A forfeiture order can therefore be granted in respect of two
different types of property.
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a) The first, is property which is used to commit an offence that is
the “instrumentality forfeiture orders”
b) property which is the proceeds of unlawful activities or
“proceeds forfeiture orders

Civil forfeiture provides a unique remedy used as a measure to

combat crime.  It rests on the legal fiction that the property and not
the owner has contravened the law.  It does not require a conviction
or even a criminal charge against the owner.

Criminal forfeiture on the other hand, more specifically s 61(1), vests the
criminal courts with a discretionary power to make a confiscation
order against anybody convicted of any crime who benefited from it
or from a related offence.  When a defendant is convicted of a crime
and the prosecutor applies for a confiscation order, s 61(1) requires
that the court first determine whether the defendant derived any
benefit from the crime or from a related offence.  If a court finds
that the defendant has so benefited, s 61(1) confers on the court a
discretion to make a confiscation order against the defendant for
payment to the state of ‘any amount it considers appropriate’ over
and above the sentence it imposes on the defendant.  The relevant
part of s 61(1) reads as follows: ‘the court shall, in addition
to any punishment which it may impose, make an order against the
defendant for the payment to the Government of any amount it
considers appropriate and the court may make any further orders
as it may deem fit to ensure the effectiveness and fairness of that
order’.

The purpose of a PART VII – CRIMINAL FORFEITURE confiscation

order is to deprive the defendant of the proceeds of the crime and
any related offences.  A confiscation order also serves broader penal
and public purposes by ensuring and demonstrating that crime does
not pay.  Although its purpose is to deprive the defendant of the
proceeds of his or her crimes, it is not an order for the confiscation
of the proceeds themselves.  Sections 61(1) and 66 provide that it
is a civil judgment for payment of an amount of money determined

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with reference to the value of, amongst other things, the
defendant’s proceeds of his crime.

Sections 61(1) and 61(5) of POCAMLA provide that an application

for a PART VII – CRIMINAL FORFEITURE order, may only be made
after conviction of the defendant.  An application for a confiscation
order is therefore an adjunct to the criminal proceedings against the
defendant.  This is one of the important differences between the
confiscation mechanism under PART VII and the forfeiture
mechanism under PARTVIII.  The latter provides for forfeiture by a
civil process that is separate from any criminal proceedings and, as
s 921(4) necessarily implies, may be undertaken even in the
absence of any criminal proceedings.

Conclusion
Civil forfeiture under POCAMLA, although it does have remedial
objectives, also has punitive or penal effects.For this reason, in
assessing the proportionality of a forfeiture order, criminal penalties
(including forfeitures) already incurred must be taken into
consideration.
PART VII – CRIMINAL FORFEITURE provides for the forfeiture of the
benefits derived from crime but its confiscation machinery may only
be invoked when the “defendant” is convicted of an offence. .  Part
VIII - CIVIL FORFEITURE provides for forfeiture of the proceeds of
and instrumentalities used in crime, but is not conviction-based; it
may be invoked even when there is no prosecution.’

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POCAMLA S92(4) The validity of an order under subsection (1) is not affected by the outcome of criminal
proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the
property concerned is in some way associated.

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 B. LEGAL REGIME GOVERNING ASSET FORFEITURE AND
CONFISCATION IN KENYA
Enabling Law (maybe we could do a matrix on the law, enabling
section, whether it is conviction based forfeiture or non-conviction
based forfeiture, legally mandated institutions)
Enabling Enablin Conviction based Legally
legislation g section or non-conviction mandated
based institution
ODPP Act Act No 2 Conviction based ODPP
of 2013,
sec 18
ACECA BOTH

POCAMLA Cap 59, BOTH

Act No 6
of 2010
NARCOTICS Act No 4 BOTH
of 1994
OCA

POTA Act No BOTH

30 of
2012,
sec 40
BRIBERY Act No Conviction Based
ACT 47 of
2016,
sec 18(7)

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Conflict of Legislation and LOCUS STANDI
Locus standi refers to a person having the right or capacity to bring legal proceedings.
POCAMLA S54. (1A) States that:
Notwithstanding any provisions in any other written law, all cases of
recovery of the proceeds of crime or benefits accruing from any
predicate offence
in money laundering, shall be handled by the Agency, in accordance
with this Act2
The Office of The Director Of Public Prosecutions Act, 2013 No. 2 Of 2013 S.18 States;
Where the Office has conducted criminal proceedings under any law in force and
as a result of the proceedings a person becomes liable to pay an amount to the
Government or property is forfeited to the Government under a court order, the
Office shall take any further proceedings or steps that may be required to recover
the amount or enforce the recovery, forfeiture or order.
By the amendment of 2017 in POCAMLA, impliedly repealed S 18 of ODPP ACT
granting all powers of asset forfeiture to the ARA. However, it is a cardinal principle of
construction that repeals by implication are not favoured. When there are two acts upon
the same subject, the rule is to give effect to both if possible. The intention of the

legislature to repeal 'must be clear and manifest'. 3

A repeal by implication is
only held to have occurred where the language used in the
subsequent measure is manifestly inconsistent with that employed
in the former so that there is a repugnance and contradiction that
justifies the conclusion that the earlier provision has been repealed
by the later.
2
As Amended by The Proceeds of Crime and Anti-Money Laundering (Amendment) Act No. 3 of 2017, s. 21.
3
Kyalo Kamina v Kenya Universities & Colleges Central Placement Service & 2 others [2018] eKLR

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CONCLUSION
There are no inconsistencies in the provisions concerning confiscation within the ODPP
Act and ARA Act.
Furthermore POCAMLA S.604 which deals with criminal confiscation validates that
criminal confiscation is a task undertaken under the prosecution proceedings which are
ODPP’s constitutional mandate.

INVESTIGATIONS
DPP has powers under the Constitution and ODPP Act to direct
investigations to be carried out. 5 Under POCAMLA, the ARA has no
such powers and only the Attorney- General can direct the KPS to
investigate.

CONCURRENT CRIMINAL AND CIVIL PROCEDDINGS and Self-

incrimination
The ARA has been pursuing civil forfeiture proceedings in cases,
which are in court or under investigations and charges, are yet to be
brought against suspects. This raises some serious constitutional
issues, which could potentially be detrimental to laying of criminal
charges by ODPP.
Section 193A of the Criminal Procedure Code and states that the existence of the
civil matter per se cannot be a bar to any criminal proceedings merely because
the subject matter in the criminal proceedings is directly in issue or substantially
in issue in the pending civil suit. 

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60. Conclusion of proceedings against defendant
For the purposes of this Part, proceedings against a defendant shall be
concluded when—
(a) the defendant is acquitted or found not guilty of an offence;
(b) subject to section 61(2), the court convicting the defendant of an
offence, sentences the defendant without making a confiscation order
against him;
5
The Constitution, art 157(4) and Office of the Director of Public Prosecutions Act, sec 5(a).

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Proving one's innocence requires reporting on one's activities.
In a Civil forfeiture matter, to prove innocence an individual must establish that
they acquired the property in another way or that they had no knowledge of its
unlawful use. An individual's activities may not always be innocent or lawful.
Moreover, the actions that resulted in the forfeiture could result in criminal
charges.
Requiring a defendant to report on the origin of her property or her lack of
knowledge requires her to self-report. Furthermore, Civil trials permit adverse
inferences in civil actions when parties do not testify in response to probative evidence. 6
This means the defendant has to provide evidence and cannot maintain silence and there is
substantial risk that such evidence could incriminate the defendant.
“Section 112 of the Evidence Act Chapter 80 of the laws of Kenya
provides:-
In civil proceedings, when any fact is especially within the
knowledge of any party to those proceedings, the burden of proofing
of disproving that fact is upon him……where a party has custody or
is in control of evidence which that party fails or refuses to tender or
produce, the court is entitled to make adverse inference that if such
evidence was produced, it would be adverse to such a party’.  

There are the general right to a fair trial, the privilege against self-incrimination,
the right not to be a compellable witness against oneself and the right to silence
guaranteed under Article in 49 (1) (a) (ii) of the Constitution in respect of
Criminal trials. These rights are available before and during the trial. That is from
the investigation stage.

6
Kenya Akiba Micro Financing Ltd. v. Ezekeil Chebii & 14 Others, HCCC No. 644 of 2005  held that where a
party is in custody or control of evidence and fails to adduce the same, the court is entitled to draw an adverse
inference.

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limitation of actions

LIMITATION OF ACTIONS

RECOMMENDATIONS
1. Formation of a Standing multi-agency task force with all actors
dealing with asset recovery/Confiscation to keep abreast of all
matters and avoid conflict of roles/investigations.
2. The director of public prosecutions bring a reference to the high
court on the issue for an advisory opinion.
3. The Director of Public Prosecutions seek an opinion from the Law
Reform Commission
3. Review and Amendment of POCAMLA to clarify conflicting issues

 Asset forfeiture and confiscation procedure

Collecting Intelligence and Evidence and Asset Tracing (domestically and in
foreign jurisdictions using Mutual Legal Assistance)

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Securing the Assets (domestically and in foreign jurisdictions using Mutual Legal
Assistance):- During the investigation process, proceeds and instrumentalities
subject to confiscation must be secured to avoid dissipation, movement, or
destruction. In common law jurisdictions, an order to restrain or seize assets
generally requires judicial authorization, with some exceptions in seizure cases.

Court Process (to obtain conviction [if possible], confiscation, fines, damages,
and/or compensation):- Court proceedings may involve criminal or non-
conviction based confiscation or private civil actions and will achieve the recovery
of assets through orders of confiscation, compensation, damages, or fines.
Confiscation may be property based or value based. Property-based systems (also
referred to as “tainted property” systems) allow the confiscation of assets found
to be the proceeds or instrumentalities of crime—requiring a link between the
asset and the offense (a requirement that is frequently difficult to prove when
assets have been laundered, converted, or transferred to conceal or disguise their
illegal origin). Value-based systems (also referred to as “benefit” systems) allow
the determination of the value of the benefits derived from crime and the
confiscation of an equivalent value of assets that may be untainted.

Enforcing Orders (domestically and in foreign jurisdictions using MLA):- When

a court has ordered the restraint, seizure, or confiscation of assets, steps must be
taken to enforce the order. If assets are located in a foreign jurisdiction, an MLA
request must be submitted. The order may then be enforced by authorities in the
foreign jurisdiction through either by directly registering and enforcing the order
of the requesting jurisdiction in a domestic court (direct enforcement) or
obtaining a domestic order based on the facts (or order) provided by the
requesting jurisdiction (indirect enforcement).

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Return of Assets: - The enforcement of the confiscation order in the requested
jurisdiction often results in the confiscated assets being transferred to the
consolidated fund.

A. RECOMMENDATIONS
1. POCAMLA makes reference to the AG and not the DPP as far as criminal
forfeiture is concerned. This is explained by the fact that the Act was
enacted before the promulgation of the new Constitution when the ODPP
was a department under the OAG. The new Constitution since removed the
functions of the AG with regard to criminal matters and placed them
exclusively on the DPP under Article 157. There is thus the need to amend
the Act to bring it into conformity with the realities of the new Constitution
where all state powers of Prosecution and all the tools of prosecution
including forfeiture are the mandate of the DPP.

2. All criminal forfeiture must be placed within the exclusive mandate of the
DPP as criminal forfeiture is a tool for the exercise of the powers of
prosecution specifically in the recovery of instruments of crime. Criminal
Forfeiture is a tool of prosecution and complements prosecutorial strategy
and execution. The DPP must therefore have the first opportunity in cases
of criminal forfeiture while the Asset Recovery Agency (ARA) should be
limited civil forfeiture. The ARA should only come in where there is a lack
of action by the DPP. The DPP has powers to undertake proceedings for the
purposes of criminal forfeiture.7 In the United Kingdom, civil recovery
powers initially exercised by the now abolished Asset Recovery
Agency, have been devolved by the Serious Crime Act 2007 (s74) to SOCA
and the prosecuting authorities.

7
Section 18 of the ODPP Act.

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3. Sections 61 (1) and (3) (b) of the Act be amended to read the DPP
instead of the AG.

4. Sections 64 (1), (6), (7) and (8) of the Act which relate to criminal
confiscation and deal with statements relating to proceeds of crime from
the defendant through affidavit be amended to allow the DPP (in addition
to the Director of the ARA) the powers to present the affidavit to court.
This will enable the DPP should to recover assets using the criminal
forfeiture process as is the tradition in many countries.

5. Section 67 of the Act which deals with the procedure when a defendant
(an accused person) absconds or dies and which empowers the ARA
Director to make an application to the court to inquire into the benefits the
defendant may have derived from the commission of the offence be
amended to replace the Director with the DPP as that is part of the trial
process. The sections relate to criminal confiscation arising out of a
conviction of a defendant or an absentee defendant whom the DPP
instituted charges against or who was to face charges save for their
absenteeism or death. The DPP is therefore best placed to handle the said
applications in the first instance as the issues arise from criminal charges
that are complete or ongoing or were underway.

6. Section 68 of the Act which deals with restraint orders should be

amended to remove the powers of the ARA Director to apply for the
prohibition of dealings with any of the property associated with the
commission of the criminal offence and to place the powers exclusively
within the DPP. The DPP is always in charge of all criminal cases in court
and will be the best placed to make necessary applications including as a

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 matter of urgency including for restraint orders to prevent dissipation or
wasting away of property acquired from proceeds of crime.

7. Section 75 of the Act which deals with applications to enforce the

realization of property arising from a confiscation order which empowers
the ARA Director to apply for the appointment of an official receiver to
manage the property that is the subject of a confiscation order should also
be amended to include the DPP’s power to make such applications in
consultation with the ARA. This will further help to ensure that the
property the subject of the confiscation order is preserved.

8. Sections 90 (1) and (2), 93 (4) and (5), 94(4) and (5), and 95(1)
and (2) of the Act relating to forfeiture of property be amended to include
the DPP so as to empower the DPP to undertake proceedings for the
realization of forfeiture in post-conviction criminal forfeiture proceedings.
This will ensure that the process from restraint to forfeiture is carried
efficiently from start to finish.

9. While section 99 of the Act which deals with fulfilment of forfeiture order
and authorizes the ARA Director to deposit funds to the Criminal Assets
Recovery Fund, there needs to be introduced a new section to provide for
the fulfilment of forfeiture order arising from proceedings by the DPP. The
funds from a forfeiture order from proceedings initiated in criminal
forfeiture under part VII shall be deposited in the Prosecutions Fund.
Section 99 (2), 99 (3) and 99 (4) of the Act shall apply to the
proceedings initiated by the DPP under part VII with the changes as may
be applicable to deposit of funds to the Prosecutors Fund.

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10.A new subsection should be introduced to section 112 of the Act which
deals with the functions of the ARA in the administration of the Criminal
Assets Recovery Fund in the application of all money derived from
concluded confiscation and forfeiture orders stipulated in Part VII to X to,
without prejudice to the provisions of section subsections (a) and (b),
provide that money derived from concluded confiscation and forfeiture
orders initiated in criminal post-conviction confiscation and forfeiture
proceedings initiated by the DPP shall be deposited in the Prosecutions
Fund and dealt with accordingly. The Prosecutions Fund has powers to
receive funds arising from proceeds of crime The deposit of the funds from
criminal forfeiture initiated by the DPP will enable the ODPP be
accountable for the fulfilment of forfeiture orders and account for the same
under its accountability framework.

11. Section 119 of the Act deals with requests to Kenya for search warrants
and the procedure when a country requests Kenya for assistance in
obtaining and executing a search and seizure warrant for purposes of an
investigation be amended to replace the AG with the DPP.

12. Section 120 of the Act which deals with requests to Kenya for the
enforcement of certain orders be amended to replace the AG with the DPP.

13. Section 121 of the Act which deals with access to information with regard
to investigations that may be required under the Act be amended to replace
the AG with the DPP.

14. Section 122 of the Act which deals with directing of investigations with

regard to information received relating to the intended commission of an

alleged offence under the Act be amended to replace the AG with the DPP.

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