A former Trans Nzoia County accountant has been ordered to forfeit assets and money worth Sh207.7 million to the government after the High Court found that he had failed to satisfactorily explain their source.
Anti-corruption court Judge Rose Ougo ordered Andrew Biketi Musuya to surrender properties in Mombasa and Bungoma valued at Sh150.2 million, bank and M-Pesa funds amounting to Sh53.5 million, and two motor vehicles worth Sh4 million.
The properties include two five-storey apartment blocks and a five-bedroom townhouse in Mtwapa, Mombasa County, as well as seven undeveloped parcels of land in Mombasa and Bungoma.
The ruling followed a petition by the Ethics and Anti-Corruption Commission (EACC) seeking to recover assets deemed disproportionate to Mr Musuya’s known legitimate income.
‘Having considered the evidence in its entirety, this court finds that the applicant discharged the initial evidential burden imposed by Section 55(4) of ACECA [the Anti-Corruption and Economic Crimes Act] by demonstrating assets and financial resources that, having regard to the respondent’s known legitimate sources of income, were disproportionate and required an explanation,’ Justice Ougo said.
The judge acknowledged that Mr Musuya earned a salary and had legitimate income from part-time teaching, business, farming, maize trading, consultancy work, loans and rental income. However, she found that he had not demonstrated how these sources could account for the extent of his wealth.
EACC investigations covered the period between January 1, 2013, and October 31, 2018.
The commission established that Mr Musuya had accumulated assets and funds worth Sh289.9 million, comprising bank and M-Pesa transactions totalling Sh53.5 million, land and buildings valued at Sh226.8 million, and motor vehicles worth Sh9.6 million.
The commission initially sought to recover Sh284.1 million, which it considered unexplained wealth.
The judge rejected his reliance on business revenue as sufficient proof of the source of the assets, noting that gross sales did not necessarily represent profits available for investment.
‘The figures represented gross sales rather than net income available to the respondent for investment,’ she said, adding that a business incurs expenses such as stock purchases, salaries, taxes, licences and rent.
Mr Musuya, who operated Kapenguria Municipal Club, commonly known as Mtello, presented sales records showing business activity in 2009 and 2010. He claimed the club generated approximately Sh23.9 million before closing in July 2010.
However, the court found that he had not adequately demonstrated the expenses incurred, the resulting profits, his share of those profits or a credible financial trail linking the proceeds to the disputed properties and bank deposits.
The judge said legitimate employment income could not, by itself, explain wealth substantially exceeding the demonstrated capacity of those earnings.
The investigations were triggered by a report that Mr Musuya had accumulated wealth disproportionate to his income while serving as an accountant officer I in the Ministry of Public Health and Sanitation and later as a principal accountant in the county government.
The commission examined Mr Musuya’s bank and M-Pesa records, employment earnings, property holdings and business activities after obtaining investigative warrants.
The EACC identified bank deposits of Sh45.5 million, excluding salary, and M-Pesa receipts of Sh8 million. It put his known legitimate income at Sh5.8 million.
The bank funds included Sh16.1 million in an Equity Bank account held by Mr Musuya, Sh8.6 million in an Equity account held by Mukuyu Petroleum Dealers, Sh11.8 million in a Co-operative Bank account in his name and Sh9.1 million in another Co-operative Bank account held by the business.
Mr Musuya opposed the forfeiture proceedings, denying that he acquired the assets through corruption, embezzlement of public funds or money laundering. In affidavits filed in response, he said his wealth had been accumulated lawfully over several years and accused the commission of selectively considering his financial records.
He argued that the investigation period was too narrow because some of his businesses and savings predated 2013.
He said he joined the Ministry of Public Health and Sanitation in October 2010 and later became a principal accountant in Trans Nzoia County, effective October 1, 2014. He attributed Sh6.5 million of his wealth to employment income earned between 2010 and 2018.
He also said he had engaged in maize farming since 2006, leasing 50 acres in Kiminini. He attributed Sh34.5 million to farming proceeds, saying he financed the venture through salary, gratuity, allowances, family assistance and proceeds from livestock sales.
He presented lease agreements, storage arrangements and maize purchase and sale receipts to support his claims, maintaining that proceeds from farming and trading were reinvested in the businesses.
On consultancy work, Mr Musuya acknowledged that Josim received Sh52 million from the county government for services that included auditing, verifying and valuing the assets and liabilities of defunct local authorities. However, he denied receiving any part of the payment.
He also acknowledged serving on the County Procurement Committee during the 2014/2015 financial year but argued that its mandate covered procurements valued at Sh500,000 or less, below the value of the contracts cited by the commission.
The court nevertheless found that the explanations, considered cumulatively, did not adequately account for the disputed assets and financial transactions.
‘The respondent was required to go further and demonstrate the expenses incurred in generating the stated sales, the resulting net profit, the portion of that profit attributable to him, and the manner in which such net proceeds were preserved or applied,’ the judge said.