Why you should not withdraw that accidental M-Pesa deposit

In a span of just five weeks, Esther Karimi Muthoni has moved from being an M-Pesa agent in Kitengela town, to serving a two-year prison term for failing to refund money accidentally sent to her.

While seeing an M-Pesa message informing one of a deposit makes many Kenyans happy, Muthoni’s case has become a classic example of why keeping accidentally sent money could be costly.

Nothing was special about July 14 for the businesswoman, until she received Sh271,200 in her agency account from Bakar Hussein Mohamed.

On that day, Mohamed had just bought an M-Pesa agent account and was in the process of setting up a business similar to Muthoni’s.

While paying for the account and acquiring float that would enable clients to withdraw or deposit funds, Mohamed missed a couple of digits and accidentally sent the cash to Muthoni.

Much like hundreds of Kenyans have done over the years, Muthoni saw the mistake as a windfall that could sort out many of her immediate financial problems. She withdrew half the amount and spent it almost immediately.

By the time Mohamed contacted Muthoni to get his money back, she did not have all of it. He filed a complaint with the police, who tracked down and arrested Muthoni.

It was only after being arrested that Muthoni tried to convince Mr Mohamed to accept a refund of the Sh135,000 she had spent in instalments. The proposed terms were not acceptable to Mohamed, and the court proceeded to hear the case.

Admitting guilt

Last Thursday, Muthoni was escorted to Lang’ata Women’s Prison as her problems piled up owing to the “windfall” she spent last month.

Senior Principal Magistrate Philip Mutua had ordered Muthoni to pay a Sh200,000 fine for defrauding Mr Mohamed of Sh135,000, or to serve two years in prison as an alternative.

Unable to raise Mohamed’s balance or the court fine, Muthoni was taken to prison, where she will now spend two years if she fails to raise the fine imposed by the court.

On June 28, Cyrus Nzoka Maithya was before Senior Principal Magistrate Martha Nazushi, pleading for leniency after admitting guilt over a similar theft case.

The father of two received Sh16,463 from Harriet Karimi, who had missed a few digits when sending the money.

Ms Karimi had sent the money on November 3, 2020 and immediately tried to reach out to Maithya for a reversal of the transaction. Maithya refused.

Ms Karimi reported the theft to the police. On June 24, Maithya was arrested and charged the following day with theft at the Milimani Law Courts.

In mitigation, Maithya said he has two schoolgoing children who depend entirely on him, and that a custodial sentence would be punishing to the girls.

The magistrate held that the admission of guilt was reason to be lenient. Maithya was ordered to pay a Sh20,000 fine or face three months in jail for the offence.

Withhold money

Unable to refund the Sh16,000 or pay the fine, Maithya went to prison to start serving the three-month term. He now has slightly more than one month left to serve in prison.

Maithya and Muthoni are just two of the 107 Kenyans that have been jailed for refusing to refund money accidentally sent to them via M-Pesa.

On May 16, 2018, President Uhuru signed into law the Computer Misuse and Cybercrimes Act. Section 35 of the Act made it illegal for individuals to withdraw or withhold money accidentally sent to them electronically.

The law covers banks, mobile money and other forms of electronic payments.

Interestingly, before the law came into force, there were still some convictions involving the same kind of theft.

Embu resident Margaret Njeri was sentenced to six months in prison in December 2017 for withdrawing Sh27,140 accidentally sent to her by Richard Mbui.

Njeri switched off her phone after withdrawing the money.

After being found guilty and fined Sh40,000 for the offence, Njeri pleaded with Resident Magistrate Jean Ndegeri to allow her to return the money to Mbui in monthly instalments of Sh2,000. It would have taken her one year and three months to fully refund the money.

Privacy

But the magistrate held that the repayment would take too long, and instead sent Njeri to Embu Women’s Prison for six months.

Privacy and contractual terms make it difficult for Safaricom to deduct money accidentally sent to individuals from subsequent deposits made to their accounts.

But the Cybercrimes Act gave police power to act on cases of people refusing to refund money accidentally sent to them.

And although hundreds of people have been arrested for stealing money accidentally sent to them, many have settled matters out of court.

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