Appellate court bars Rwandese-linked firm from accessing Sh35.4million suspected ‘dirty money’

The Court of Appeal has stopped the release of more than Sh35.4 million held in a Kenyan bank account and suspected to be proceeds of crime, pending the hearing and determination of an appeal filed by the Asset Recovery Agency (ARA).

A three-judge bench comprising Justices Daniel Musinga, Aggrey Muchelule and George Odunga granted orders staying the execution of a High Court judgment that had directed the release of USD 274,369.56 (about Sh35.49 million) held in an I&M Bank account belonging to EIS Afrika Group Ltd, a Kenyan affiliate of Burundi-based EIS Company SPRL.

“Execution of the judgment by Musyoki J. dated June 20, 2025, and the subsequent orders allowing the release of USD 274,369.56 held in EIS Afrika Group’s bank account at I&M Bank is hereby stayed pending the hearing and determination of the civil appeal,” the appellate court ruled.

The judges further directed that the appeal be heard within 60 days and determined expeditiously thereafter.

In allowing ARA’s application, the Court of Appeal said the amount in dispute was substantial and there was a real risk that the funds could be withdrawn before the appeal is concluded, thereby defeating the purpose of the proceedings.

“Although EIS Afrika Group is a limited liability company incorporated in Kenya, its sole director is a Rwandan national. If the orders sought are not granted, the company may withdraw the funds, and should the appeal succeed, it would have been rendered nugatory,” the judges observed.

The bench acknowledged the long-standing legal principle that courts do not ordinarily grant a stay of execution against a negative order, such as the dismissal of a suit.

However, the judges held that the unique circumstances of the case, coupled with the provisions of Section 97 of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA), justified preserving the disputed funds pending the outcome of the appeal.

According to the court, Section 97 creates a statutory stay designed to ensure that property subject to preservation orders is not dissipated while appellate proceedings are underway.

The appeal stems from a June 20, 2025 judgment by High Court Judge Benjamin Musyoki, who dismissed ARA’s application seeking forfeiture of the funds and ordered that the money be released to EIS Afrika Group.

Justice Musyoki held that ARA had failed to prove, on a balance of probabilities, that the money constituted proceeds of crime.

The judge faulted the agency for failing to independently verify documents presented by the company, including the underlying construction contract and records relating to World Bank funding.

He ruled that ARA’s statutory mandate to investigate and recover proceeds of crime required more than mere suspicion and that its investigations did not sufficiently substantiate the allegations made against the company.

Justice Musyoki further found that EIS Afrika Group had satisfactorily explained the origin of the funds through documentary evidence, including a construction contract with the Government of Burundi.

Dissatisfied with the ruling, ARA has appealed, arguing that the High Court improperly relied on inadmissible evidence presented by the company and imposed an evidentiary threshold that was inconsistent with the civil forfeiture framework established under POCAMLA.

The agency further contends that the judge wrongly shifted the burden of proof onto ARA and adopted an unduly restrictive interpretation of the law governing civil asset recovery.

Pending the appeal, ARA sought orders preserving the funds, arguing that releasing the money would render the appeal futile should it ultimately succeed.

Court documents show that EIS Afrika Group Ltd was incorporated in Kenya on February 21, 2024, as a subsidiary of EIS Company SPRL, a Burundi-based engineering firm established in 2011.

The company told the court that its parent firm specialises in civil engineering works, including the construction of roads, bridges and other transport infrastructure projects across the East African region.

According to EIS Afrika Group, it secured a USD 5.03 million contract to construct and equip the Kavimvira Border Post in South Kivu Province along the Burundi-Democratic Republic of Congo border.

The company said the project was financed by the World Bank, which initially disbursed USD 1,006,605.

The firm explained that 20 per cent of the funds had been allocated for the purchase and importation of construction equipment.

Acting on advice from FIN Bank Burundi, it opened a US dollar account at I&M Bank Kenya to facilitate international transactions because of Burundi’s foreign exchange regulations.

The company told the court that USD 350,000 was transferred into the Kenyan account and was being used to settle project-related expenses before ARA obtained preservation orders from the Chief Magistrate’s Court freezing the funds.

EIS Afrika Group’s director, Nduwimana Aimable, maintained that the money was lawfully acquired and originated from the World Bank-funded infrastructure project.

He also challenged ARA’s reliance on a cyber investigation report, arguing that it had been signed by an unnamed digital forensic analyst and merely questioned the authenticity of an email address linked to the transaction.

Aimable told the court that the World Bank had confirmed ownership of the email address and independently verified the documents supporting the transaction.

He further argued that ARA failed to verify the documents with either the World Bank’s Nairobi office or the Embassy of Burundi in Kenya before instituting forfeiture proceedings.

With the appellate court’s latest orders, the disputed Sh35.49 million will remain frozen in the I&M Bank account until the Court of Appeal hears and determines ARA’s challenge to the High Court judgment.