The High Court has rejected an attempt by the Assets Recovery Agency (ARA) to confiscate three Mombasa apartments linked to a controversial foreign businessman, Asif Amirali Alibhai Jetha, and his wife, Lyn Henderson.
- •The agency had sought to have three apartments in Mombasa’s Mainland North valued at a total of KSh 18mn, and any rental income derived from them, declared proceeds of crime and forfeited to the government.
- •The state’s case rested on a financial pattern it described as suspicious; investigators presented bank records showing deposits of KSh 9,657,241 between 2012 and 2014 and additional cash deposits and transfers totaling KSh 3,262,956 between 2008 and 2015.
- •ARA relied in part on his prosecution in a criminal case in Mombasa, where he faced multiple counts including immigration-related offences and trafficking in persons, mainly Nepalese women brought to Kenya on visitor arrangements for work linked to a Nyali nightlife business associated with him.
The government further contended that Jetha had been operating in Kenya without a valid work permit and had therefore accumulated income unlawfully. In addition to the bank records, ARA also pointed to M-Pesa inflows of KSh 9,150,980 recorded between 2010 and 2014 and argued that these transactions lacked a legitimate source and formed part of a scheme through which illicit funds were funneled into real estate.
A trial court initially convicted Jetha on several counts, but the matter became legally contested on appeal, with the High Court ultimately narrowing what remained enforceable, rather than leaving a full set of convictions intact. The Assets Recovery Agency relied on this history not as proof of guilt on its own, but as part of its argument that there was a broader pattern of unlawful activity supporting civil forfeiture.
According to the agency, the transfer of the apartments to Henderson was indicative of an attempt to conceal ownership and shield the assets from recovery. It also argued that the couple had failed to provide a credible explanation for the origin of the funds used to acquire the properties, and that discrepancies in their account of earlier property transactions further undermined their case.
The Couple's Defense
Jetha and Henderson countered with a reconstruction of their financial history, tracing the acquisition of the apartments to funds originating from abroad and subsequent property investments. They stated that in 2007 Henderson received £60,000 from her father and added £24,000 in personal savings, bringing the total to £84,000, which was transferred to a company they controlled.
The funds were used to purchase two plots in Nyali in 2007 and 2008. One of the plots was later sold in 2011 for KSh 26.5 million, and the proceeds were used to acquire the three apartments in 2014 at a total cost of KSh 18 million.
Jetha also maintained that he had held a valid work permit from 2003, with renewal endorsements extending to 2013, during which period he operated a transport business. He disputed the agency’s claim that he had never possessed a permit and argued that the financial transactions cited by investigators reflected ordinary business activity rather than illicit conduct.
The couple further denied that the transfer of the properties into Henderson’s name was intended to conceal ownership, describing it instead as a routine intra-family arrangement.
Why the State Lost
In his analysis, Justice Benjamin Musyoki found that the agency had not met the evidentiary threshold required to justify forfeiture under the Proceeds of Crime and Anti-Money Laundering Act. While civil forfeiture does not require proof of a specific offence, the state must still demonstrate, on a balance of probabilities, that the assets in question are linked to unlawful conduct. On that test, the court concluded that the agency’s case was insufficient.
“A respondent does not have to explain every iota of details of their financial affairs. All that is required is sufficient explanation of their sources of funds. It should not escape our minds that the case belongs to the applicant regardless of the special nature of civil forfeitures where evidentiary burden of proof is placed on the respondents,” the judge ruled.
The judge found that the claim that Jetha had never held a work permit was not adequately supported, particularly in light of documentary evidence produced by the respondents showing a permit issued in 2003 with renewal endorsements up to 2013. The court noted that the agency had not taken steps to verify or challenge the authenticity of that document and appeared to rely instead on conflicting statements from immigration authorities.
The court also held that the financial transactions cited by the agency had not been shown to be inherently suspicious. The amounts involved, spread over several years, were not considered large enough on their own to raise an inference of illegality, and the agency had not identified specific features of the transactions that would indicate a criminal origin.
On the question of the source of funds, the court found that the respondents had provided a coherent explanation linking the acquisition of the apartments to earlier capital derived from a family gift and subsequent property investments. Although the agency raised doubts about aspects of that account, including discrepancies in the reported sale price of one of the Nyali properties, the court held that such inconsistencies were not material in the absence of evidence pointing to unlawful conduct.
“The investigator may have had his personal perspective of how couples should secure registration of their joint and individual properties, but I find nothing wrong with a husband and wife registering any of the properties acquired during the subsistence of marriage to either of them or both,” Justice Musyoki stated.
The court further found that the agency had failed to establish a clear nexus between the alleged suspicious funds and the acquisition of the properties. It noted that the agency had not linked the assets to any specific criminal activity and had relied primarily on general assertions of illegality without sufficient supporting evidence.
