For the fourth time in a month, Muhammet Mertoglu flew in from Germany to Nairobi two weeks ago to follow up on a case in which he says he was conned Sh23 million by Kenyan scammers led by one Samir Munyinyi.
Mr Munyinyi has a Kenyan ID and passport, according to documents filed in court but there are questions on how he acquired them.
The case, whose hearing was set before Magistrate Kenneth Cheruiyot of the Milimani Criminal Court on May 9, failed again one more time.
Mr Thomas Otieno, who had been listed as a key witness because he allegedly received money on behalf Mr Munyinyi, did not show up because he had an “emergency”. As a result, the hearing was postponed to August 17.
Mr Mertoglou, who has all but lost hope of ever getting justice for the loss of his money, told the Sunday Nation that the lack of a key witness appearing in court is part of a ploy to make sure the case fails.
He had three weeks before flown into Nairobi after getting an appointment with officers investigating the case. They did not, however, meet him for unknown reasons even after he camped at the Directorate of Criminal Investigations (DCI) headquarters for hours on the appointed day.
“There are people who are sitting on this matter and want to frustrate me. I was even told I will get killed if I don’t stop following up the matter,” said Mr Mertoglou from Germany.
“This cartel knows how to use the law and they are well connected. They can intercept police files whenever they want,” he said.
Mr Mertoglou’s predicament mirrors what foreigners who are conned by Kenyan gold scammers go through whenever they try to seek justice after being conned.
By using loopholes in the law and protection from the police and politicians, fake gold cartels harbour some of the untouchable criminals operating on Kenyan soil. With their money and influence, the fraudsters are well represented in government and crucial entities like banks and other financial institutions.
According to insiders, junior police officers can pocket as much as Sh2 million in order to protect the cartels.
The senior officers who are paid more and on a need basis ensure that the huge amounts of money coming into the fraudsters’ accounts are not flagged as suspicious when banks notify the banking fraud unit.
In order to further guarantee the cartels’ absolute protection, senior police officers make sure the complainants regardless of which station they report the fraud, are directed to particular stations, which have friendly investigating teams. Most files, however, never make it to court.
The Sunday Nation is aware that two senior police officers have in recent months been transferred for protecting the cartels. This came after another influential detective, derisively referred to as the “godfather” of the fake gold and counterfeit currency, was removed from his position.
Their removal from those influential positions left the cartels vulnerable, making it easy for the detectives to execute the huge number of arrests. At least 40 people have been arrested in the past two months especially in the Kilimani area of Nairobi.
It was therefore quite telling when the Police Spokesman Charles Owino announced in March, at the beginning of crackdown on the cartels, that there was a possibility the criminals have protectors in the system.
“You know the criminal fighting regime has changed. You will see more of these gold and fake cash busts by the police. That one I can guarantee,” said Mr Owino.
However, to date, not a single big player in the gold scamming enterprise has been successfully convicted by any court in Kenya. The cases either end up at the police stations they are reported to or at the court where all the big scammers are facing multiple cases but are still in the game.
Mr Jared Otieno, who is suspected to be a key player in the fake gold syndicate, was arraigned in court and could face fresh charges but has other cases in court.
Philip Aroko, who lied to the police last week that his name is Philip Naulu, was among the 15 arrested at a house in Kileleshwa with fake gold nuggets. He has three different cases in court linked to gold scamming.
In an interesting case last year, Ugandan Twahir Ismail, 36, appeared before a Nairobi court on June 25 charged with conning a Jordan national Sh16 million in a fake gold deal. He denied committing the offence before Kibera Chief Magistrate Ann Ong’ijo.
However, Assistant Director of Prosecutions Mary Wangele sought time to verify some documents the accused had given the police since he had another case.
“We have information that the accused has another case pending in court where he was ordered to deposit his passport. We require time to confirm this,” Ms Wangele told the court.
Nevertheless, it is at the police station that those who have been conned get the first stumbling block in their quest for justice. Since the gold they are purportedly being sold is said to originate from war torn Democratic Republic of Congo (DRC), the victims opt to use tourist visas to evade detection.
The scammers take note of this and pass on this information to the police once a complaint is filed. At the station, the tide turns on those who have been conned for doing business illegally in the country after having arrived on a tourist visa.
Worryingly, in case we ever see a conviction, the culprits are likely to get a three-year sentence regardless of the amount of money they have stolen.
This is courtesy of a 1964 law which classifies gold scamming as part of the demeanours. All gold fraud cases are characterised as “obtaining by false pretence” under that section of the Penal Code.
“Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years,” says section 313 of the Penal Code.
With such lenient punishments and the societal glorification of those who make wealth fraudulently, it is not difficult to see why Nairobi has been turned into a gold scammers’ paradise. In the unlikely event that they are arrested and taken to court, the scammers bet on the case dragging on for years while they are out on bail.
In April last year, flamboyant politician Steve Mbogo was let off the hook in a case where he was charged alongside a Cameroonian with defrauding a Dubai-based businessman of $223,000 (Sh22.3million).
The two were accused of pretending they would sell the businessman 56kg of gold. Chief magistrate Mrs Roseline Oganyo dismissed the case against Mr Mbogo after Mr Faizah Ahmed failed to appear in court to testify in the case since last year.