Cross-Border Recovery

• §Proceeds of Crime Act 2002 (POCA) — including ss.362A–362I (UWOs) & Part 5 Civil Recovery
• §External Requests and Orders Order 2005
• §Crime (International Co-operation) Act 2003
• §Forfeiture of Assets (Jersey) Law 2018 · March 2022 Kenya–Jersey Asset Recovery Agreement

Three parallel tracks: (A) direct proprietary and constructive-trust litigation in the English High Court Business and Property Courts — under FHR European Ventures v. Mankarious, bribes, secret commissions and diverted state loan proceeds are held on constructive trust for the Republic from the moment of receipt, with ex parte application within 48 hours for a Mareva Worldwide Freezing Order paired with Norwich Pharmacal and Bankers Trust disclosure orders; (B) UK Unexplained Wealth Orders under POCA ss.362A–362I with an Interim Freezing Order, transmitted via NCA/CPS forensic dossiers, over UK property worth over £50,000 where known lawful income is insufficient; (C) formal MLA registration under the 2005 Order — Crown Court Prohibition Orders on request of the Home Office, registration of final Kenyan High Court forfeiture orders, and a Crown Dependency bridge (Jersey, Guernsey, BVI) under the Kenya–Jersey Asset Recovery Agreement used to repatriate £3 million in the Kenya Power / Windward Trading case.

• +Claimant-driven civil suit — Kenya can sue officials, shell companies and knowing recipients directly without waiting for diplomatic MLA processing.
• +Ex parte Mareva worldwide freezing order available within 48 hours over London real estate, bank accounts and luxury assets.
• +Norwich Pharmacal and Bankers Trust orders compel UK banks and corporate service providers to reveal beneficial owners and onward wire destinations.
• +UWO + Civil Recovery Order route needs no criminal conviction — balance of probabilities after a failed explanation.
• +Crown Dependency bridge reaches Jersey/BVI holding structures through an existing bilateral agreement.

• –UK UWOs attach only to UK property over £50,000 held where known lawful income is insufficient — lower-value or well-documented holdings fall outside the threshold.
• –Track C depends on formal Home Office MLA processing and Crown Court prohibition orders, which are slower than the ex parte civil route.
• –The Jersey/BVI bridge only bites where proceeds are actually parked in Crown Dependency companies.
• –A civil claimant must fund and service English proceedings against defendants, requiring full and frank disclosure on any ex parte application.

• §Federal Law No. 39 of 2006 (Mutual Legal Assistance)
• §Federal Decree-Law No. 38 of 2023 (judicial cooperation)
• §AML Federal Decree-Law No. 20 of 2018
• §Cabinet Resolution No. 134 of 2025

A three-step sequence. Step 1 — emergency FIU-to-FIU administrative freeze: before formal diplomatic papers arrive, Kenya’s Financial Reporting Centre sends an urgent Egmont Group intelligence request to the UAE Financial Intelligence Unit, which can impose an immediate administrative freeze for up to 7 working days on suspect bank accounts and alert the Dubai Land Department to block property transfers. Step 2 — formal MLA: the Attorney-General submits a certified-Arabic request to the UAE Ministry of Justice (International Cooperation Department) under Federal Law No. 39 of 2006, Decree-Law No. 38 of 2023 and UNCAC Chapter V; streamlined dual-criminality and evidentiary thresholds let the Public Prosecution obtain judicial attachment over mainland accounts, villas, apartments and free-zone shares (DMCC, JAFZA, RAK ICC), then execute final Kenyan confiscation judgments. Step 3 — DIFC and ADGM common-law courts: direct English-language proprietary claims and ex parte freezing injunctions where funds sit in vehicles or private banks licensed in the Dubai International Financial Centre or Abu Dhabi Global Market.

• +7-working-day administrative freeze via goAML can precede formal diplomatic papers entirely.
• +Decree-Law No. 38 of 2023 streamlined dual-criminality and evidentiary thresholds for financial crimes and closed Dubai real-estate and free-zone ownership loopholes.
• +DIFC and ADGM common-law courts mirror the English High Court strategy in the working language of international finance.
• +Enforcement route for Kenyan High Court forfeiture judgments sits with the UAE Ministry of Justice under Decree-Law No. 38 of 2023.

• –Mainland attachment runs through the Public Prosecution and MoJ — it still requires a formal MLA request with certified Arabic translation.
• –Administrative freezes are short (up to 7 working days) and must be converted by MLA before they lapse.
• –The DIFC/ADGM direct route reaches only assets held through those financial free zones’ licensed institutions and vehicles.
• –Dual criminality, although streamlined by Decree-Law 38/2023, still has to be satisfied for each predicate offence.

• §18 U.S.C. § 981 (Kleptocracy civil forfeiture; § 981(a)(1)(B), § 981(b), § 981(i)(1))
• §28 U.S.C. § 1782 (discovery for foreign proceedings)
• §28 U.S.C. § 2467 (registration and enforcement of foreign orders)
• §18 U.S.C. § 983(j) restraining orders · UNCAC Chapter V

Three statutory levers. Mechanism 1 — wire-trail discovery: as an "interested person" in a foreign judicial proceeding, the Attorney-General or EACC can apply directly to the U.S. District Court for the Southern District of New York under 28 U.S.C. § 1782 for subpoenas compelling correspondent banks (Citibank, JPMorgan Chase, BNY Mellon) to produce complete SWIFT MT103/MT202 wire logs, intermediary hops and originator/beneficiary details for any USD transfer linked to a Kenyan Eurobond or syndicated facility — no diplomatic MLA wait. Mechanism 2 — DOJ Kleptocracy in rem civil forfeiture: the forensic dossier goes to the DOJ Money Laundering and Asset Recovery Section Kleptocracy Asset Recovery Initiative and the FBI International Corruption Squad; DOJ obtains an ex parte seizure warrant or restraining order and litigates forfeiture against the assets without any conviction of the official. Mechanism 3 — direct enforcement of Kenyan orders: once Kenya’s High Court issues a preservation or forfeiture judgment, the US Attorney-General can register it ex parte under 28 U.S.C. § 2467(d)(3), with the US court treating Kenya’s factual findings as conclusive. Repatriation runs through a bilateral Asset Return Agreement under 18 U.S.C. § 981(i)(1) dedicating 100% of proceeds to the Sovereign Debt Redemption Account.

• +Leverage exists even without US real estate: nearly every USD-denominated Eurobond and syndicated loan clears through New York correspondent banks (CHIPS/Fedwire).
• +§ 1782 subpoenas give immediate wire-trail discovery without waiting for a treaty request.
• +In rem forfeiture needs no criminal conviction of any Kenyan official.
• +§ 2467 courts cannot re-litigate the merits — Kenya’s factual findings are treated as conclusive.
• +Asset Return Agreements can earmark 100% of proceeds for Kenya’s debt redemption account.

• –§ 1782 requires Kenya to be an "interested person" with a pending foreign judicial proceeding to anchor the application.
• –§ 981 in rem forfeiture needs US-situs property or funds traceable through US correspondent banking channels.
• –§ 2467 enforcement presupposes a Kenyan High Court preservation or final forfeiture order to register.
• –Repatriation is conditional on negotiating a bilateral Asset Return Agreement.

• §International Mutual Assistance in Criminal Matters Act (IMAC, SR 351.1) — Arts. 18, 63, 74a
• §Foreign Illicit Assets Act (FIAA, SR 196.1) — Arts. 3–6, 14–16, 17–19
• §Money Laundering Reporting Office (MROS) obligations
• §UNCAC art. 57(3)(a)

Two parallel tracks. Track 1 — judicial assistance: on a Kenyan MLA request through the Federal Office of Justice, often triggered simultaneously by a Swiss bank’s suspicious activity report to MROS, prosecutors issue immediate provisional freezing orders under IMAC Art. 18 and hand over bank records under IMAC Art. 63; under IMAC Art. 74a(3) Switzerland can return frozen funds to Kenya even before a final Kenyan criminal judgment where the illicit origin is manifest — for example, direct wires from a Kenyan state project account or syndicated loan escrow into a Swiss private bank account held by a PEP’s Panamanian or BVI shell company. Track 2 — Foreign Illicit Assets Act: where domestic prosecution is obstructed or protracted, the Federal Council can issue an autonomous administrative freeze valid for up to 10 years (FIAA Arts. 3–6), and under FIAA Art. 15 a statutory presumption of illicit origin applies before the Swiss Federal Administrative Court whenever a PEP’s wealth increased disproportionately during public office while corruption levels in the home state were high, shifting the burden to the PEP to prove lawful acquisition. Restitution runs under a binding FIAA Art. 18 agreement returning at least 97.5% (maximum 2.5% Swiss cost deduction, Art. 19), earmarked for public-interest programmes or debt retirement under transparent auditing — as in Switzerland’s 2025 restitution agreements with Equatorial Guinea and Uzbekistan.

• +IMAC Art. 74a(3) early handover can return funds before a final Kenyan conviction.
• +FIAA administrative freeze can last up to 10 years, outlasting procedural delay.
• +FIAA Art. 15 rebuttable presumption mirrors Kenya’s UWO framework and shifts the burden onto the PEP.
• +High restitution share — at least 97.5% returned under a binding agreement.
• +Bank SARs via MROS give a domestic trigger that runs in parallel with the MLA request.

• –IMAC early handover requires the illicit origin of the funds to be manifest (e.g. direct wires from a Kenyan state or escrow account).
• –The FIAA route is for cases where Kenyan domestic prosecution is obstructed or protracted, and its presumption depends on disproportionate PEP wealth plus high home-state corruption levels.
• –Administrative confiscation is adjudicated before the Swiss Federal Administrative Court (FIAA Arts. 14–16), not a criminal court.
• –Restitution is capped by a maximum 2.5% Swiss cost deduction and must be earmarked under a formal restitution agreement.