A large, unexplained deposit used to be a banker’s problem. Increasingly, it is the account holder’s. The Court of Appeal has now reminded the Assets Recovery Agency that a transaction looking unusual is where an investigation may begin, not where a forfeiture order is earned.

Levi Munyeri · Munyeri Advocates · 15 October 2026 · 18 min read

Assets Recovery Agency v EIS Afrika Group Ltd, Civil Appeal (Application) No. E511 of 2025 [2026] KECA 1253 (KLR), Court of Appeal at Nairobi, before Achode, Ngetich and Radido, JJA.

§1  When a wire transfer becomes a target

Cases of Kenyans losing property to the State through civil forfeiture are becoming more common. The Assets Recovery Agency has leaned harder into its mandate under the Proceeds of Crime and Anti-Money Laundering Act, 2009 (POCAMLA), as the country confronts a rise in local and cross-border money laundering, a trend that has done its own damage to Kenya’s standing as a regional financial hub. The policy case for a vigilant Agency is not hard to make. Dirty money moving through the formal banking system is a real problem, and the law is right to give an agency the tools to chase it.

The difficulty is what that vigilance can feel like from the other side of the transaction. Receiving a large sum of money into a Kenyan bank account no longer reliably means good news. Whatever the money’s origin or purpose, there is now a real possibility that the Agency will treat its size, its speed, or its foreign source as grounds to move against it, freezing the account first and asking harder questions later. For ordinary businesses operating across borders, that is not an abstract risk. It is a live operational one, and it is the backdrop against which the Court of Appeal’s decision in Assets Recovery Agency v EIS Afrika Group Ltd should be read.

The appeal arose from the High Court’s decision to dismiss the Agency’s application seeking to forfeit money held in a Kenyan bank account belonging to EIS Afrika Group Limited. The Agency lost at first instance and lost again on appeal, and the two decisions together now form a fairly complete picture of what the courts expect from a forfeiture case before they will take someone’s money away.

§2  What happened in the EIS Afrika account

The facts are largely undisputed. In March 2024, EIS Afrika’s account at a Kenyan bank received USD 350,000 from a foreign jurisdiction. Following its own investigations, the Agency obtained preservation orders over the account and later applied to forfeit what remained in it, by then USD 274,369.56, on the basis that the funds were proceeds of crime. The Agency said it had received information about suspected money laundering, opened an inquiry file, obtained warrants to investigate EIS Afrika’s accounts, and concluded that the company had run a scheme designed to conceal the nature, source, destination and movement of illicit funds.

EIS Afrika told a different and, on the record, a more mundane story. It said it was affiliated with a Burundian company engaged on a World Bank-connected construction project at the Kavimvira border post, and that the USD 350,000 had been routed through its Kenyan account so the group could buy equipment and vehicles from Dubai, a workaround made necessary by foreign-exchange and import constraints in Burundi. It produced tender documents, invoices and correspondence to support that account. The Agency was not persuaded. It challenged the authenticity of the documents without approaching the people or institutions who had produced them to ask whether they were genuine, relied on an email it said was from the World Bank but could not itself verify, and pointed to what it described as massive cash withdrawals from the account, a claim its own counsel later conceded was not supported by the bank statements and was, in counsel’s own words, a mistake on the Agency’s part.

The High Court was unimpressed with how the investigation had been put together and presented. It found that the Agency had not established even a prima facie case, and added that, even if it had, EIS Afrika had sufficiently explained where the money came from and where it was going. The forfeiture application was dismissed, the Agency appealed, and the Court of Appeal was asked to decide whether that outcome could stand.

§3  What the law asks before the State can keep your money

POCAMLA’s civil-forfeiture machinery runs in two stages, and it is easy to lose sight of the gap between them. The first stage is the preservation order. Under section 82, the Agency Director-General may apply, usually ex parte, for an order stopping a person from dealing with property, and the court must grant it if there are reasonable grounds to believe the property has been used in, or is intended for use in, an offence, or is itself proceeds of crime. “Reasonable grounds to believe” is a relatively low threshold by design. A preservation order freezes a position while an investigation continues; it does not decide anyone’s guilt or take anyone’s property away.

The second stage is the forfeiture order itself, and the standard changes considerably. Under section 90, once a preservation order is in force, the Agency Director-General may apply to the High Court for an order forfeiting the property to the Government, on notice to anyone who has already registered an interest in it. Section 92 then sets the test the High Court must apply: it shall make the order if it finds, on a balance of probabilities, that the property has been used or is intended for use in an offence, or is proceeds of crime, as that phrase is defined in section 2 of the Act, property or an economic advantage derived or realised, directly or indirectly, as a result of or in connection with an offence. A criminal conviction is not a precondition; section 92(4) makes clear that the validity of a forfeiture order does not depend on the outcome of any criminal proceedings over the same property. But the civil standard the Agency must meet is still the ordinary civil standard, proof on a balance of probabilities of an actual connection to crime, not merely proof that a transaction looked unusual.

That gap between “reasonable grounds to believe” at the preservation stage and “balance of probabilities” at the forfeiture stage is where most of the Agency’s difficulty in the EIS Afrika case sat. An account can be frozen on suspicion that would never be enough, on its own, to take the money away for good. Treating the first threshold as though it answers the second is precisely the shortcut the Court of Appeal declined to allow.

§4  Suspicion is not proof

The Court of Appeal’s central holding is easy to state and, for an agency built around pursuing suspicious transactions, somewhat uncomfortable to absorb: the mere fact that a transaction is unusual, large or international does not, without more, establish that the underlying funds are proceeds of crime. Suspicion may properly trigger an investigation. It does not, by itself, discharge the evidential burden required to justify forfeiting private property.

Applying that standard to the record before it, the Court found several gaps the Agency had not closed. It had not verified the Kavimvira project with the World Bank, the Burundi Embassy, or the DRC ministry said to have issued the contract documents, even though doing so was well within its investigative powers and would have gone directly to whether EIS Afrika’s explanation was genuine. It had relied on an unverified email and a cyber-forensic report whose evidential foundation was not properly established. And its claim of unexplained cash withdrawals, probably the single most suggestive allegation an agency can make in a money-laundering case, turned out not to be supported by the bank’s own records at all.

None of that proved EIS Afrika’s innocence in some larger sense, and the Court did not purport to make that finding either. What it held was narrower and, for this kind of case, more important: once a suspected owner has given a reasonable account of where money came from and where it went, an agency that has not tested that account against the institutions capable of confirming or contradicting it has not done enough to justify taking the money away. The inconsistencies the Agency pointed to were, on this record, reasons to keep investigating, not findings that had already been proved.

§5  Five principles the Court of Appeal set down

Read as a whole, the judgment sets out a fairly compact statement of principle governing the Agency’s civil-forfeiture powers, useful both to businesses facing a preservation order and to the Agency in deciding when a file is actually ready for forfeiture proceedings.

§6  How much explanation is enough: the Aboo thread

The fourth principle, that a sufficiently credible explanation shifts the burden back onto the Agency, did not appear out of nowhere. Weeks earlier, the Supreme Court had addressed essentially the same question in Ethics and Anti-Corruption Commission & another v Aboo, Petition No. E044 of 2024 [2026] KESC 44 (KLR), a case over roughly KSh 19.7 million the Ethics and Anti-Corruption Commission and the Agency jointly sought to forfeit from a woman whose husband, a former Kenya Revenue Authority officer, was suspected of taking bribes from importers and clearing agents.

The two agencies had argued, in effect, that once deposits looked suspicious, the burden should shift to the account holder to prove a legitimate source, with no further work required of the State. A seven-judge bench rejected that position. Criminal conduct remains central to forfeiture under POCAMLA; investigators must place before the court credible evidence satisfying the statute’s ingredients, and forfeiture reaches only property used in an offence, intended for such use, or constituting its proceeds. The Court accepted that an owner may be required to account for the source of disputed assets once the Agency has established a prima facie case, but it was equally clear that doing so does not relieve investigators of their own duty to prove the link to criminal activity. The adequacy of an owner’s explanation, in other words, has to be weighed against the evidence the Agency has actually adduced, not treated as the only thing standing between the State and the money.

EIS Afrika applies that same logic to an ordinary commercial transaction rather than a suspected proceeds-of-corruption case, and the result is a reasonably coherent line running through both decisions. The legal burden never truly leaves the Agency’s shoulders. What moves, and only once the Agency has done enough to put the question fairly in issue, is the practical need for the account holder to speak. A business that can show a real contract, real invoices and a traceable money trail is answering that practical burden. It should not also be made to disprove a theory of crime the Agency has not itself substantiated.

§7  Forfeiture against the constitutional right to property

It is worth stepping back to see why the courts are this exacting about a statutory procedure. Article 40 of the Constitution of Kenya, 2010 protects the right to acquire and own property, and Article 40(3) says the State shall not deprive a person of property, or of an interest in or right over property, unless that deprivation is for a public purpose or in the public interest and carried out in accordance with the Constitution and an Act of Parliament. POCAMLA’s civil-forfeiture regime is that Act of Parliament, and it only works constitutionally because Article 40(6) carves out property that has been found to have been unlawfully acquired from the Article’s protection in the first place. The word doing the real work in that sentence is found. Forfeiture is not a license to treat property as unlawfully acquired because it looks that way; it is a mechanism for the State to prove, through a proper judicial process, that it is.

Seen in that light, the balance-of-probabilities standard in section 92 is not a technicality the Agency must clear on its way to a legitimate public purpose. It is the constitutional hinge the whole regime turns on. Lower that standard in practice, by treating an unresolved suspicion as sufficient, and a statute built to strip criminals of illicit gains starts to function instead as a mechanism for depriving ordinary businesses of lawfully held funds on the strength of an unfinished investigation. The Court of Appeal’s insistence on real verification, and the Supreme Court’s insistence in Aboo that the Agency keep the legal burden throughout, both read as efforts to keep POCAMLA operating on the right side of that constitutional line.

§8  What this means if your account is the next one

EIS Afrika is significant precisely because its facts are unremarkable. There was no allegation of a named predicate offence, no suggestion the company itself had been charged with anything, just a large, fast, cross-border transfer that fit a pattern the Agency is trained to notice. That is exactly the profile of transaction many legitimate Kenyan businesses with regional or international dealings will generate in the ordinary course of trade, which is what makes the judgment worth reading closely rather than filing away as a one-off.

For a business that receives a preservation order, the practical lesson from both EIS Afrika and Aboo is to answer early and answer with documents: the underlying contract, invoices, correspondence with the counterparties involved, and a money trail that a third party, a bank, an embassy, a funder, could in principle confirm. A credible, documented account is what shifts the practical weight of the case back onto the Agency. For the Agency itself, the lesson is a matter of investigative discipline rather than legal power: the statute still gives it considerable reach, but a preservation order bought on reasonable grounds has to be followed by real verification work before it can mature into a forfeiture order that will survive scrutiny on a balance of probabilities.

What the judgment does not do is draw a bright line around how much verification is enough, or how quickly an agency must complete it once an account has been frozen and a business’s working capital with it. Those questions remain for the next case. What is now reasonably settled is the baseline: suspicion opens the door to an investigation, and nothing short of properly tested evidence can close it on the State’s terms.

Bottom line

EIS Afrika is a useful corrective at a time when the Assets Recovery Agency’s reach has been expanding. It does not weaken the Agency’s powers under POCAMLA, and it does not make Kenya friendlier to money laundering. What it does is confirm that those powers still run through ordinary civil proof: reasonable grounds to freeze an account, but a genuine balance-of-probabilities case, built on verified evidence, before that money is gone for good. Businesses that move money across borders in the ordinary course of trade should keep the paperwork that proves it. Increasingly, that paperwork is the only thing standing between a routine transaction and a very unwelcome preservation order.

Sources and further reading: Assets Recovery Agency v EIS Afrika Group Ltd, Civil Appeal (Application) No. E511 of 2025 [2026] KECA 1253 (KLR); Assets Recovery Agency v East Africa Group Limited, Anti-Corruption and Economic Crimes Civil Suit E025 of 2024 [2025] KEHC 8618 (KLR); Ethics and Anti-Corruption Commission & another v Aboo, Petition No. E044 of 2024 [2026] KESC 44 (KLR); and the Proceeds of Crime and Anti-Money Laundering Act, 2009 via Kenya Law.

Levi Munyeri Levi Munyeri is the Principal Advocate at Munyeri Advocates, where his practice covers civil litigation, asset recovery and compliance matters for individuals and businesses dealing with regulatory and enforcement agencies.

This article is provided for general information only and does not constitute legal advice. It reflects the author’s own analysis and opinion on a recent decision of the Court of Appeal, and readers facing an active preservation or forfeiture matter should seek advice on their particular facts.