The Director of the Directorate of Criminal Investigations Mohamed Amin has been ordered to verify medical documents indicating that the main suspect in the Ksh1 billion fake gold deal, Joseph Waswa, is admitted at MP Shah Hospital and is unable to attend court for plea-taking.
The new twist comes after Waswa, the director of Melpa company skipped court for the second time on Monday, October 9, 2023, but tabled a medical report through Lawyer June Ashioya claiming he was admitted at a city hospital.
"Your honour, my client is sick and currently admitted at MP Shah hospital therefore could not be able to attend court to answer the criminal charges as earlier summoned by the court. I have medical documents to prove that he is sick," Lawyer Ashioya informed the court.
The lawyer pleaded with the court to differ the plea taking for another 60 days.
Following the tabling of the medical documents, the state counsel, however, told the court that the Director of Public Prosecutions (DPP) through the DCI needed to verify the medical document first to confirm whether it was genuine or not.
"Your honour, we oppose the request to have the plea deferred again for 60 days. This is the second time Waswa has failed to attend court. Last time the defence sought a plea deferral claiming he was unwell and had been given 14 days of bed rest by the Nairobi Hospital which were expiring today. Kindly let the DCI investigate the health claims by the suspect," the state prosecutor stated.
As a consequence, Milimani Senior Principal Magistrate Esther Kimilu allowed the DPP’s request to give them more time to verify the documents and ascertain if Waswa was sick and if he was admitted at MP Shah Hospital as alleged by his lawyer within 24 hours.
She ordered the DCI to file a detailed report on Waswa ’s health condition at MP Shah before the next mention.
However, the magistrate postponed the plea-taking in the matter to October 18, 2023, and gave a warning to the defence that court summons must be honoured.
Waswa, a self-styled businessman, was expected in court today to answer charges of having forged USD 634,178 banknotes equivalent to Ksh93,668,090
He is alleged to have committed the offence on September 7, 2023, at Villa Mawe in Garden estate within Nairobi County, jointly with others yet to be prosecuted.
The fake money was recovered at Waswa's house by DCI detectives during the arrest of thirteen suspects after a Tunusia businessman Bilel Arfaoul reported to the police how the businessman and his co-director at Melpa Limited Samuel Maina Wakaba had attempted to defraud him of Ksh1 billion in fake gold deal.
The suspect's prosecution comes days after High Court Judge Chacha Mwita rejected his plea to stop his prosecution in the matter.
Waswa, who is out on anticipatory bail of Ksh200,000 together with other employees of Melpha, had filed a constitutional petition challenging their arraignment.
They argued before Justice Mwita last week that their right to privacy was violated when the detectives stormed their office on September 7 at about 3 pm seizing documents, phones and computers without a search warrant.
Other suspects expected to be charged alongside Waswa are DCI officer Festo Wamwayi, Lenace Wakachuka a cleaner and cook at Melpa, Rahma Abdi Hassan (receptionist), Alice Kavata (businesswoman), Joseph Gikionyo (driver at Melpa), Stephen Andere and Cameroonian national Nelson Cru Che.
In the petition before the High Court, they want the court to bar the state from prosecuting them claiming that the decision to have them arraigned in court based on evidence they say was illegally acquired is unconstitutional and violates their right to a fair trial.
According to their court papers, the officers forced the gates open while armed and were shooting randomly in the air.
Once they gained entry, they arrested everybody at the premises.
"They later asked us to get into the house, searched our phones and any bags that we were carrying," they stated in the court papers
"They confiscated our mobile phones and handcuffed us and started interrogating us about the nature of business Melpha was conducting," read their documents in part.
The officers allegedly asked about Waswa who was not at the office at the time the search went on.
From the court papers, they have challenged the manner in which they were arrested and detained.
They have taken issue with the police for arresting them without explaining to them the reason for their detention.
"We were subjected to questioning, torture, inhuman and degrading treatment," they said.
The petitioners in their court papers said they authorized Waswa to plead the matter on their behalf.
They sought an order suspending all criminal investigations launched by the DCI against them.
At the same time, thirteen suspects including a DCI officer Wamwayi who were arraigned earlier in court, have also not been charged as DCI has been granted another 14 days to complete investigations into the Ksh1 billion allegations against them.
Magistrate Gilbert Shikwe, however, allowed the DCI two weeks until October 17, 2023, to finalise the probe into the matter.
Gold scam
Investigations into the fake gold scam case by the DCI reveal that Waswa is alleged to have called the Tunisia trader informing him that he had a consignment of gold valued at one billion shillings that he wanted to sell.
According to the investigating officer Nicholas Njoroge, Waswa and his accomplices told the foreigner that the consignment was being held at a warehouse at the Jomo Kenyatta International Airport (JKIA) in Nairobi.
The complainant consequently travelled from Tunisia and arrived at JKIA on September 1, 2023, where he was received by businessman Waswa and his group and hosted at Ngara area in Nairobi waiting to be shown the gold consignment.
"Waswa informed the complainant to pay for the gold consignment but the foreign trader insisted on being shown the consignment before making any payment," Njoroge says in an affidavit filed in court.
On September 7, 2023, the suspects met with the complainant within the Ngara area in Nairobi and took the complainant to a residential house LR NO. 4894/152 at Garden estate said to belong to Waswa.
The police officer trailed the suspects, whom they arrested as some of their accomplices escaped by scaling over the perimeter wall to evade arrest.
"Upon conducting a search in the house, USD4,680,000 was found inside metal boxes which the complainant had been deceived that they contained the gold consignment," Njoroge says.
"Most of the metal boxes contained sand and pieces of stones and not gold consignment as alleged by the respondents," the officer stated.
Further, Constable Wamwayi stationed at Kisasi in Kitui County was arrested at the house after he went to the rescue of the suspects after being arrested.
Waswa has previously hit headlines for the wrong reasons.
In 2014, Waswa was arrested and charged with allegedly killing Mitch Kibiti, son of former Bungoma County Education Chief Officer David Kibiti, after a disagreement at his Etonia Club in Kimilili.
In 2015, Waswa caused drama at Bungoma Law Courts after showing up in court accompanied by 10 “bodyguards”. The incident forced officers from the Flying Squad to intervene, arresting all the 10 bodyguards who were later released.
In February 2019, Waswa and six others were arrested and charged with impersonating President Uhuru Kenyatta’s voice and conning Sameer Africa chairman Naushad Merali Ksh10 million.
