Asset Recovery Agency v Alibhai & another (Anti Corruption and Economics Crime Miscellaneous Application E012 of 2025) [2026] KEHC 357 (KLR) (Anti-Corruption and Economic Crimes) (23 January 2026) (Ruling)
Neutral citation:
[2026] KEHC 357 (KLR)
Republic of Kenya
Anti Corruption and Economics Crime Miscellaneous Application E012 of 2025
BM Musyoki, J
January 23, 2026
Between
Asset Recovery Agency
Applicant
and
Asif Amirali Alibhai
1st Respondent
Lyn Henderson
2nd Respondent
Ruling
1.On 28-03-2025, this court granted preservation orders following an application by the applicant under Sections 81, 82, and 87 of the Proceeds of Crime and Anti-Money Laundering Act (hereinafter referred to as ‘POCAMLA’). The orders were in respect of apartments numbers A1 in Block A erected on subdivision No. 18915 of Section I Mainland North (CR 64698), A4 in Block A erected on subdivision No. 18915 of Section I Mainland North (CR 64699) and A6 in Block A erected on subdivision No. 18915 of Section I Mainland North (CR 64700). Following the granting and gazettement of the preservation orders, the applicant filed an originating motion dated 25th June 2025 vide this court’s civil suit number E026 of 2025 (hereinafter referred to as ‘the civil suit’) seeking to forfeit the said properties to the government pursuant to Section 90(1) of POCAMLA.
2.The respondents herein have now approached this court vide a notice of motion dated 2nd September 2025 seeking the following orders;a.This application be certified urgent and be heard on priority basis.b.Pending the hearing and determination of this application, execution or further execution of the preservation orders given on 28-03-2025 be stayed.c.The preservation orders given on 28-03-2025 be set aside.d.The originating motion dated 27-03-2025 be struck out with costs.e.The costs of this application be paid by the applicant/respondents, Assets Recovery Agency.
3.This application is supported by affidavit of the 1st respondent sworn on 2nd September 2025 and based on 16 grounds listed on the face of it. The summary of the grounds is that; the application had not been brought by the proper applicant as the law provides that preservation orders could only be applied for by the Agency Director (later amended by the law to be Agency Director General) and not the applicant; that after the amendment of the law on 20-06-2025, which abolished the office of the Agency Director the applicant could not file the application with authority of Agency Director as there was no such office; the forfeiture proceedings were not commenced within ninety days as required under Section 84 of POCAMLA and that the preservation orders were therefore null and void.
4.This court had an occasion to determine an application dated 24-07-2025 filed in the civil suit. The application whose ruling I delivered on 28-11-2025 had the following prayers;a.The application be certified as urgent.b.The originating motion dated 25/6/2025 be struck out with costs to the respondents/applicants and the preservation orders given on 28/3/2025 in HCACEC Misc. Application No. E012 of 2025 upon which these proceedings are based, be set aside.c.In the event, and only if this suit is not struck out, this court be pleased to transfer it to the High Court at Mombasa for hearing and determination through a full trial.d.The costs of this application be paid by the applicant/respondent, Assets Recovery Agency.
5.The grounds upon which the application in the civil suit was premised were basically that the applicant had no locus to file civil proceedings for preservation and forfeiture which powers are preserved for the Agency Director and that by filing this matter in Nairobi instead of Mombasa, the respondents had been denied their rights to fair hearing and access to justice. I considered the application and the parties’ representations and in my ruling, I held that the application was not merited and dismissed it. In arriving at my decision, I considered at length and merits the reasoning and submissions of the parties on the capacity of the Assets Recovery Agency in filing applications for preservation and forfeiture.
6.It is clear from the above prayers that the issue of the capacity of Assets Recovery Agency and the prayer for setting aside the preservation orders is common in both applications. Having considered the issue of the applicant’s capacity to file preservation and forfeiture proceedings at length and having rendered myself through ruling dated 28-11-2025 upon consideration of the merits of the parties’ arguments, I do not hesitate to hold that the same is res judicata. I have no jurisdiction to revisit the same and consequently I down my tools on that issue.
7.I am left with the argument that the civil suit was not filed within ninety days as pleaded in ground five of the application. Sections 84 and 90(1) of the POCAMLA provide as follows;90(1) If a preservation order is in force, the Agency Director-General may apply to the High Court for an order forfeiting to the Government all or any of the property that is subject to the preservation order.
8.The preservation orders granted on 28-03-2025 were gazetted on 4-04-2025. A simple calculation would show that, the last day for filing of the civil suit was 2-07-2025. The suit is said to have been filed on the said 2-07-2025. I do not see where the respondents have come with this argument which appears as one of the grounds of the application but not highlighted in the supporting affidavits or submissions.
9.The upshot of the above, is that I find the application lacking in merits and the same is hereby dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JANUARY, 2026.B. M. MUSYOKIJUDGE OF THE HIGH COURTRuling delivered in presence of;Miss Muchiri for the applicant; andMr. Makobe holding brief for Mr. Munyao for the respondents.