A Congolese businessman who withdrew suspected tainted money after being tipped off by a bank official that an order freezing the funds had lapsed, has been ordered to refund the millions.
Mr Fumbisha Ilunga Yves was ordered to refund the Sh3.72 million he withdrew in September last year over the counter, within 21 days, failure to which the Assets Recovery Agency (ARA) will be free to attach his assets.
High Court judge Esther Maina added that should the state agency fail to recover the money from Mr Ilunga, Mr George Onyango, a Post Bank official — who tipped Mr Ilunga on the lapse of the court order — should be compelled to refund the amount.
The judge noted that the preservation order was still in force, in September 2023, when the funds were withdrawn.
“Accordingly, the finding of this court is that the 1st respondent must, in the first instance, be held personally liable to refund the funds,” she said.
Justice Maina noted that the Congolese withdrew the funds after being invited, prodded and advised by Mr Onyango, who even went to an extent of referring him to an advocate.
“It became clear to this court therefore that had George Onyango not prodded the 1st respondent (Mr Ilunga), he would not have withdrawn the funds,” said the judge.
The judge rejected the argument that Mr Onyango acted in good faith and that Mr Onyango did not benefit from the violation of the court orders.
The judge questioned the involvement of an advocate, given that all Mr Ilunga was required to do after the lapse of the order was to go to the bank and get back his money.
“His conduct of referring the 1st respondent (Mr Onyango) to ‘an advocate’ who demanded 10 percent of the preserved funds so that the 1st respondent could access the funds betrays his motive,” said the judge.
The funds were frozen on June 5, 2023 after ARA suspected it to be proceeds of crime. The preservation order was granted for 90 days and the court order was served on the bank.
ARA successfully filed an application for forfeiture but were shocked to discover that the money had long been withdrawn.
The agency later applied for Mr Onyango, the bank’s operation manager for questioning alongside Mr Ilunga.
The Congolese confirmed being called by Mr Onyango informing him that he could access his money.
He said he withdrew the money and left a balance of Sh2,000 and before withdrawing the money, he was referred to an advocate who asked for 10 per cent of the preserved funds, before accessing the money.
Mr Ilunga through his lawyer said he had no control over the money until the account was reactivated and any blame should be directed at the bank.
ARA asked the court to punish the bank and Mr Ilunga to preserve the dignity of the court.
The court heard that the terms of the order were clear, unambiguous and binding on the bank but the lender breached the terms by releasing the funds to the customer. The bank on its part said it acted in good faith.
