EIS Afrika has won back its KSh35.5 million after the Court of Appeal rejected ARA’s bid to forfeit the funds. ARA alleged the money was proceeds of crime, but the court found the Agency had failed to prove the required link to criminal conduct.
The Court of Appeal has blocked forfeiture of USD274,369.56 (KSh 35.5 Million) held by EIS Afrika Group Limited.
The money followed a USD350,000 transfer linked to a USD5 million border project.
Aimable Nduwimana, the director of EIS Afrika Group Limited, said the funds supported equipment purchases for that regional construction contract.
The ruling means Asset Recovery Agency (ARA) cannot seize the remaining KSh35.5 million without stronger proof connecting it to crime.
The judges found suspicious circumstances but said suspicion alone could not establish criminal provenance.
The three-judge appellate bench comprised Justices Lydia Achode, Rachel Ngetich, and Radido Stephen Okiyo in a judgement delivered on September 25, 2026.
Suspicious Transfer
The dispute began after USD350,000 (KSh 45 million) entered EIS Afrika’s I&M Bank account on March 1, 2024.
Investigator Alfred Musalia said intelligence had triggered an inquiry into suspected money-laundering activity.
Musalia told the court that investigators uncovered a scheme concealing suspected illicit funds.
ARA therefore asked the High Court to declare the remaining money proceeds of crime.
EIS Afrika rejected those allegations and offered a detailed commercial explanation.
Nduwimana, the company’s sole member and director, linked the money to EIS Company SPRL.
He said the Burundian affiliate conducts construction and infrastructure projects across the region.
According to Nduwimana, EIS Burundi had secured the Kavimvira Border Post project.
The contract was valued at USD5,033,576.15, equivalent to about KSh653 million.
Nduwimana said the World Bank funded the project through Burundi. He explained that EIS Afrika’s Kenyan account would facilitate equipment purchases from Dubai.
Foreign-exchange difficulties allegedly prompted the funds’ transfer through Kenya for procurement.
Evidence Tested
ARA challenged that explanation and questioned documents supporting the construction project.
Investigators challenged an alleged World Bank email supporting the project’s funding arrangements.
The Agency relied on a cyber-forensic report attributed to the Communications Authority of Kenya.
Investigators also described huge withdrawals from EIS Afrika’s account during their inquiries.
Bank statements, however, did not support that description of those withdrawals. ARA’s counsel eventually conceded that characterisation was “a slip of our side”.
EIS Afrika Group Limited Aimable Nduwimana. Photo/courtesy
Justice Benjamin Musyoki dismissed ARA’s forfeiture application on June 20, 2025.
He found that the Agency had failed to establish the necessary prima facie case. Musyoki also questioned the evidential foundation supporting the cyber-forensic report.
The Agency appealed, arguing that suspicious transactions could shift the evidential burden.
The Court of Appeal rejected that approach and maintained the statutory evidential threshold.
Section 92(1) of POCAMLA requires proof on a balance of probabilities.
Project Questions
The judges anchored their reasoning in the Supreme Court’s Pamela Aboo decision.
It held that POCAMLA forfeiture requires a nexus between property and criminal conduct.
The appellate judges said large international transactions can properly attract investigation.
Yet they stressed that “suspicion may properly trigger an investigation” without proving criminal provenance.
The USD350,000 transfer therefore justified scrutiny but did not automatically justify forfeiture.
The World Bank email created another difficulty for the Agency’s case. ARA established that the email address could not be independently verified.
However, that failure did not prove the construction project was fictitious. Nor did it establish that World Bank financing had never existed.
The judges said EIS Afrika provided documents capable of independent verification.
Those records included tender documents, invoices, and project correspondence. ARA could have contacted the World Bank or the Burundi Embassy to verify those claims.
The Agency did not pursue those verification steps, leaving important questions unresolved.
The judges said that gap weakened the evidential foundation supporting forfeiture.
They also examined the cyber-forensic report attributed to the Communications Authority. Its evidential foundation was insufficiently established for critical conclusions.
Burden Remains
The court also acknowledged inconsistencies concerning Burundi, South Kivu, and the Democratic Republic of Congo.
A contract acceptance letter referenced the Democratic Republic of Congo’s infrastructure ministry.
EIS Afrika’s explanation connected the project with the Burundi-DRC border.
The judges called that discrepancy a “legitimate matter of concern” requiring closer scrutiny.
However, they said concern alone could not establish criminal provenance. ARA could have independently verified those conflicting geographical references.
The judgement also clarified the meaning of in rem forfeiture proceedings. Such proceedings target property without requiring a criminal conviction against its owner.
However, their property-focused nature does not reduce POCAMLA’s evidential threshold.
The Agency must still establish the statutory connection between property and criminal conduct.
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The judges ultimately found circumstances warranting investigation but insufficient proof for forfeiture.
They said the evidence did not establish that USD274,369.56 constituted proceeds of crime.
They reached that conclusion without requiring EIS Afrika to prove its innocence.
The Court of Appeal dismissed ARA’s appeal and upheld the High Court’s June 20, 2025, judgement.
The judges also ordered EIS Afrika to receive the costs of the appeal.
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