Boat used to ferry drugs handed to maritime agency

The High Court in Nairobi has handed the Asset Recovery Agency (ARA) a win by ordering forfeiture of a boat used to ferry Sh8.2 billion worth of crystal meth to the government.

In a major score against drug trade in the country, Anti-corruption High Court Judge Benard Musyoka said that the board MV Igor, which is also known as Mashaalah, should be handed over to the Kenya Maritime Authority (KMA), which will now be registered under ARA as it was used to commit a crime.

He asserted that this was a stern warning to smugglers and drug barons that Kenya is not a gateway or path of illicit drugs.

The Mark Ogonji-led agency had asked the court to order that the boat be forfeited to the Kenya Navy.

However, Justice Musyoki said that the agency would, after the court order, opt to internally opt to surrender the same to the Navy.

“A strong message must be sent out there that Kenya does not condone illicit local and international trade and the cases of whatever magnitude traced within our borders are not as a result of reluctance, complicity or laxity of government agencies to deal with the criminals.

Efforts must be made to ensure that illicit trade like drug trafficking and other serious international crimes are eliminated or reduced to the minimum even though some are bound to unfortunately succumb to the natural human incapacity and the porosity of the society,” said Justice Musyoki.

In the case, ARA sued the boat and roped its captain, Jaseem Darzadeh Nia, as an interested party.

In its case, ARA argued that after the boat was intercepted in the waters, investigations started to ascertain whether it was a tainted property which was used for the commission of a crime.

The investigator, Eliaph Ngari, told the court that a multi-agency team- the Directorate of Criminal Investigations anti-narcotics unit, the Navy and the Coast Guard Services had, on October 19 last year, received information that a dark vessel was acting suspiciously within the Kenyan waters in the Indian Ocean.

Ngari added that the team tried to communicate with the vessel, but it did not respond. This prompted them to prepare to board to establish contact.

Inside the vessel were six men of Arab origin, including Nia, Nadeem Jadgal, Hassan Baloch, Raheem Baksh, Imran Baloch and Imtiyaz Daryay.

Upon obtaining a court order to search the boat, the team recovered 121 gunny bags containing whitish crystalline substances which, upon forensic tests, were established to be meth. They were stashed in different compartments.

It was also established that the men on board were from Iran.

Ngari also testified that the vessel had no port of registry, flag, State of origin, or ownership details as required by maritime law.

He insisted that Nia, the captain, was aware of the contents in the boat and that, after it was arrested, no one came to claim ownership.

The investigator argued that the vessel was used to commit a crime and ought to be forfeited to the State.

The court ordered ARA to advertise in the newspapers about the case. However, it was only Nia who responded.

He argued that ARA bore the burden to prove that the boat constituted proceeds of crime. The captain stated that although he had been charged alongside the others before the Shanzu Law Courts, he had not been found guilty yet.

He insisted that the unconcluded criminal case meant that the narcotics smuggling issue remained contested as there was no conclusive finding by the judiciary.

Nia added that an order for forfeiture would deprive him of property before a guilt finding was made against him.

Upon hearing rival arguments, Justice Musyoki observed that Nia did not dispute that the boat was being used to commit a crime.

He further observed that he also did dispute that the substance was 98 per cent pure meth.

“The interested party has not in his replying affidavit controverted the above facts. He has said nothing about the stated arrests, interception, search and ownership of the respondent. He has not denied that he was the captain of the Respondent and was served with notices of seizure produced by the Applicant as annexure ‘EN-8a’ and ‘EN-8b’. He has not controverted or denied the contents or authenticity of the inventories and certificate of search produced by the Applicant,” said Justice Musyoki.