The mother and wife of the jailed Akasha brothers have suffered a setback after the High Court allowed the Director of Public Prosecutions to file forfeiture proceedings over items recovered during a 2014 police raid at their Nyali home.
In its ruling, the court found in favour of the state, noting that no evidence had been presented to show that the prosecution had been notified of a 2023 judgment directing it to initiate forfeiture proceedings within a specified period.
The court had earlier ruled that failure to act within that timeframe would allow the Akashas to formally apply for the return of the seized items.
The court observed that the prosecution’s claim that it only became aware of the judgment on June 6, 2024, upon being served with the Akashas’ application dated May 2024, had not been challenged.
“That being the case, the prosecution cannot be faulted for failing to comply with the court’s directions and file the forfeiture proceedings within the prescribed time when they were not aware of those directions,” the court ruled in its decision delivered on March 13.
It further noted that the prosecution moved to court promptly to seek an extension of time upon learning of the judgment.
“In these circumstances, I am satisfied that the prosecution has made out a case for the extension of time to comply with the court’s directions given on November 9, 2023. Their application is allowed and time prescribed by the court will start to run from the date of this ruling,” the judge said.
Following this finding, the court dismissed an application by Baktash Akasha’s wife, Najma Juma Hassan, and his mother, Fatma Akasha, seeking orders for inspection and release of the seized items.
The court noted that their application for inspection ought to have been pursued within the extradition proceedings.
Fatma Baktash Akasha, mother of Ibrahim and Baktash Akasha.
Photo credit: File
In their application, Najma and Fatma had sought interim and final orders compelling the prosecution, the Directorate of Criminal Investigations (DCI) and the Anti-Narcotic Police Unit to surrender to the Deputy Registrar various properties allegedly seized during the raid.
They also sought orders allowing them to inspect items held by state agencies, including motor vehicle registration number KBU 900Y, a Toyota Land Cruiser, an Apple iPhone, a logbook for motor vehicle KBN 085N, and a Toyota Alphard bearing the same registration number.
Further, they had asked the court to release the items to them upon determination of the application and to order the immediate return of all properties listed in an inventory dated November 9, 2014.
The application was supported by an affidavit sworn by Najma, who stated that she is married to Baktash Akasha Abdalla. At the time of filing the application, her husband was serving a 25 year sentence in the United States District Court for the Southern District of New York.
She explained that extradition proceedings against her husband and his brother, Ibrahim Akasha, were conducted in 2014 before the Mombasa Chief Magistrate’s Court.
During those proceedings, police officers raided their home on November 9, 2014, seizing various items.
Najma told the court that although some of the seized items were later returned, others were retained by the authorities on the basis that they were exhibits in the extradition case. She argued that despite the conclusion of those proceedings, the remaining items had neither been released nor used as exhibits.
Court records show that on September 17, 2019, the High Court directed them to seek the release of the items before the magistrate’s court where they were being held as exhibits.
Subsequently, in a judgment delivered on November 8, 2023, the High Court ordered the State to initiate forfeiture proceedings within 60 days, failing which the Najma and Fatma would be at liberty to apply for the release of the items.
However, no such proceedings were commenced within that period, prompting Najma and Fatma to file their application seeking the return of the properties.
In response, the Director of Public Prosecutions filed an application seeking a review of the November 2023 orders and an extension of time by 60 days to institute forfeiture proceedings.
The application, supported by an affidavit sworn by prosecution counsel Maureen Anyumba, stated that the judgment had been delivered in Nairobi in the absence of all parties and without notice to them, and that no copy had been supplied.
Baktash Akasha Abdalla at a Mombasa court on December 1, 2016.
Photo credit: Kevin Odit | Nation Media Group
According to Ms Anyumba, the prosecution only became aware of the judgment after being served with the petitioners’ application in June 2024, making it impossible to comply with the earlier court directions within the stipulated time.
She further stated that the seized items were considered proceeds of crime following Baktash Akasha’s conviction in the United States, where he was found guilty of drug trafficking, firearms and corruption related offences.
"The prosecution is intent on complying with the directions of the court and filing the forfeiture proceedings accordingly. It is for this reason that the prosecutions seek extension of time to file the proceedings," she said.
The court was told that the prosecution has since engaged the Asset Recovery Agency to commence forfeiture proceedings in line with the law.
Both Ibrahim and Baktash are serving jail terms in the US for drug trafficking charges, conspiracy to import methamphetamine into the US.
Baktash, considered the leader of the syndicate, was sentenced to 25 years in prison in 2019. His brother Ibrahim, who acted as his deputy and “right-hand man,” pleaded guilty to similar charges and was later sentenced to 23 years in prison in 2020 for trafficking heroin and methamphetamine and related offences.
