Milimani Law Courts. PHOTO/COURTESY
By OUR CORRESPONDENT
Businessman Jared Kiasa Otieno, a key suspect in a multi-million fake gold syndicate case has received a reprieve after a trial court declined to stay an execution of an order for the release of a Ksh30 million luxury vehicle.
Anti-corruption court judge John Onyiego dismissed an application by the Assets Recovery Agency (ARA) that sought a stay of execution against his earlier order that required it surrenders the custom made 2015 Porsche Panamera to the gold trader. The court also awarded him costs.
Otieno is at the center of an international fake gold syndicate investigation that ensnares businessmen hunting gold deposits. The latest case involve a gold deal amounting to KSh300 million.
The 2015 Porsche Panamera was impounded in 2019 alongside a custom-made 2018 Bentley Continental GT estimated to cost a whooping Ksh47 million as detectives investigated the fake gold ring.
Authorities believe the property has been acquired fraudulently out of crime proceeds and money laundering and had obtained preservation orders, thereof.
Businessman Jared Kiasa Otieno. PHOTO/COURTESY
Aggrieved by the decision, the trader moved to court to vary the order and in a ruling dated November 20 2019, he got a reprieve concerning the car in question registration number KCD 966 L which was the set to be released to the suspect.
After this ruling ARA sought temporary stay of 14 days which was granted pending filing of a formal application and at the same time moved to the Court of appeal seeking a quashing of the same order.
During the pendency of the appeal, stay of execution orders at the high court were extended. Subsequently, the applicant withdrew their case for stay pending at the Court of appeal,” justice Onyiego said.
JO’s lawyers, as a consequence were also burning the midnight oil and filed another application dated April 28 2020 seeking to vacate interim stay orders against him and further sought for the release of the motor vehicle in question.
“On May 6 2020, the said application was dismissed on grounds that the application dated December 2 2019 in respect to which stay orders were granted was still pending,” the judge said.
The court thus directed parties to get down to a hearing of the pending matter of stay of execution which had been extended.
ARA argued that in rescinding the order that had given authorities permission to detain the car the judge had “misapprehended the law and released the motor vehicle”
A 2015 Porsche Panamera like the one Assets Recovery Agency (ARA) wanted not be released to businessman Jared Kiasa Otieno. PHOTO/COURTESY
It was further argued that the release of the motor car to Otieno would depreciate its value due to increased mileage, tear and wear from its use, thus prejudicing the original case and rendering the pending forfeiture proceedings nugatory.
The vehicle in question is a subject matter in forfeiture proceedings in a Civil application No 51/2019 where the issue of whether it is a proceeds of crime will be determined.
But according to Otieno, the immobile state of the vehicle posed a greater risk of loss of utility and that in the alternative, the M/V logbook should be deposited in court and a monthly inspection report be made available.
The court ruled that ARA cannot suffer substantial loss if it is release to Otieno
He further castigated the Agency for “retreating back to the high court” to canvass a similar stay of execution that it had filed at but withdrawn from the Court of appeal terming it “an abuse of the court process.”
The judge has directed that the proper forum for this adjudication is the Court of appeal.
A 2018 Bentley Continental GT like the one owned by businessman Jared Kiasa Otieno. PHOTO/COURTESY
“Concerning the issue of substantial loss, the applicant must demonstrate that he will suffer consequences that will not be redeemed by monetary compensation or any other remedy should the appeal succeed,” Justice Onyiego said.
He wondered what loss may be suffered if the car is released to Otieno while the logbook is retained.
“It is my finding that, if the appeal succeeds, the motor vehicle will be repossessed as it will be available, Concerning depreciation, this is not a commercial motor vehicle that will be exposed to increased use hence faster depreciation,” the judge ruled.
The vehicle is also not registered in Otieno’s name but Cleaners Ltd and ARA had argued that he may not claim it.
However, the judge ruled that the agency had not sued the company it is now claiming to own the vehicle, but had sued Otieno as the beneficial owner and thus cannot deny him from accessing it.
He directed the vehicle released to Otieno, unless otherwise lawfully held or upon further orders from the high court and equally awarded the businessman costs.
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