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The Kenyan Civil Forfeiture Regime: Nature, Challenges and Possible Solutions
Published online by Cambridge University Press: 21 January 2020
Abstract
Civil forfeiture is an asset forfeiture mechanism available to seize proceeds of crime. Kenya has embraced its use and provides statutory mechanisms for its implementation. The Proceeds of Crime and Anti-Money Laundering Act is the main statute in this regard. This article examines the substantive law and procedure for civil forfeiture provided in this statute. The analysis indicates that the provisions are technical in nature and that the process is systematic. This ensures a procedurally and substantively fair process before an individual's property is seized. This approach aims to safeguard against the arbitrary deprivation of property. Nonetheless, challenges are identified that interfere with the effective implementation of the civil forfeiture regime. These problems lead to the current underutilization of the regime. Accordingly, the article identifies viable ways of addressing these shortcomings. Implementation of these suggestions could enhance the use and success of civil forfeiture in dealing with the proceeds of crime.
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- Research Article
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- Copyright © SOAS, University of London 2020
Footnotes
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Lecturer, University of Nairobi, School of Law.
References
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7 Act No 4 of 1994.
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10 Cap 59B, Act No 9 of 2009.
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30 POCAMLA, sec 2.
31 Ibid.
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41 It refers to legal proceedings by one party without the other party being present or participating.
42 See Magistrates’ Court Act 2015, sec 7.
43 The National Police Service comprises two entities: the KPS and the Administration Police Service. See the Constitution, art 243(2).
44 Office of the Director of Public Prosecutions Act, sec 5(a).
45 Id, sec 5(1). The authority with the primary power to investigate all types of crimes in the country is the Kenya Police Service as per the National Police Service Act, cap 84, sec 24(e).
46 The Constitution, art 157(4).
47 Id, art 156(4)–(5).
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53 Id, sec 54(2).
54 Id, secs 55 and 123. These include the DPP's Office and the National Police Service.
55 Id, sec 82(2).
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57 Id, sec 82(3).
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62 Civil Procedure Rules 2010, Legal Notice 151 of 2010, order 40(4)(2).
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82 Ibid.
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95 POCAMLA, sec 92(1): “The High Court shall, subject to section 94, make an order applied for under section 90(1) if it finds on a balance of probabilities that the property concerned (a) has been used or is intended for use in the commission of an offence; or (b) is proceeds of crime” (emphasis added).
96 Id, sec 92(3).
97 Id, sec 92(4).
98 [2011] UKSC 49.
99 Id, para 19.
100 POCAMLA, sec 92(5). The Kenya Gazette is an official publication of the Government of Kenya.
101 Id, sec 92(6).
102 Id, sec 97.
103 Id, sec 98.
104 Id, sec 99(1).
105 Id, secs 67(5), 68(9), 75(3), 83(3), 89(1), 91 and 96. All these provisions permit affected parties to file applications seeking to protect their interests in targeted property.
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