The Court of Appeal has upheld a decision to seize Sh35 million from James Thuita, one of the suspects implicated in the National Youth Service (NYS) scandal. The appellate court dismissed Thuita’s bid to overturn an earlier order made by Justice Mumbi Ngugi in 2020, which had authorized the Assets Recovery Agency (ARA) to confiscate the funds.
Thuita, who had appealed the decision, sought to introduce new evidence to argue that the money he had received was from legitimate business activities. However, Justices Asike Makhandia, Gatembu Kairu, and Lydia Achode rejected this request, emphasizing that the evidence he wished to present was always available during the trial, but Thuita and his legal team had chosen not to submit it at the time.
The case stems from the infamous NYS scandal, where billions of shillings were siphoned from the government agency, with funds being fraudulently diverted into the accounts of various individuals, including Thuita. The Assets Recovery Agency had demonstrated that Thuita received funds illicitly from NYS, and these were subsequently transferred to accounts belonging to his family members and associates.
In her 2020 ruling, Justice Mumbi Ngugi found sufficient evidence to order the confiscation of the Sh35 million in Thuita’s possession. The evidence provided by the ARA indicated that the funds were proceeds of crime, a conclusion that was backed by investigations into the financial transactions linked to Thuita and the NYS scandal.
Following the ruling, Thuita filed an application seeking to have the decision reviewed. He argued that he had new evidence that could prove his dealings were legitimate. However, the appeal judges found that the new evidence he sought to introduce was not as fresh as claimed. In fact, the evidence had been available throughout the proceedings, but Thuita had chosen not to present it.
The judges underscored that for an applicant to succeed in seeking a review of a decision, they must demonstrate that the new evidence was indeed not available at the time of the original trial, despite reasonable efforts to obtain it. Thuita’s argument that his advocates had failed to introduce the evidence was dismissed by the appellate judges, who observed that the advocates had decided not to present the documents at the time, believing them to be premature or unnecessary.
The judges also noted that Thuita’s attempt to blame his former advocates for the omission of evidence, while simultaneously claiming that the documents were lost or misplaced in a raid by state officers, lacked candor. Their ruling pointed out that the documents were always available but were deliberately withheld, marking a clear strategic decision by Thuita and his legal team.
“The failure to produce the documents was not a genuine mistake but a strategic choice,” the judges concluded. “Thuita and the other appellants must bear the consequences of this decision.”
This ruling serves as a crucial precedent in the legal handling of assets linked to criminal activities. It reinforces the principle that individuals seeking to reverse asset seizure orders must present compelling, genuine evidence that was unavailable at the time of the original ruling. It also highlights the critical role that legal counsel plays in criminal proceedings and the consequences of strategic decisions made by advocates on behalf of their clients.
As the NYS scandal continues to unfold, this decision adds to the growing body of cases that are attempting to recover stolen funds, sending a strong message to those involved in corruption that the law will hold them accountable for fraudulent activities, regardless of the evidence they seek to introduce after the fact.
For Thuita, the appeal was a final attempt to reverse the fate of his seized assets, but the court has made it clear: his failure to present crucial evidence when it was required has cost him the chance to reclaim his Sh35 million.
