What you need to know:
- Mr Muga is charged with defrauding international Safari Rally driver Bernhard Ten Brinke of US$1,567,120 (Sh170,816,734), pretending he would sell to him 500kgs of the precious metal.
A court has slashed by Sh4 million a Sh5 million cash bail imposed on a businessman accused of being a fake gold dealer.
Milimani chief magistrate Martha Mutuku Friday freed trader Elvis Ouma Muga on a Sh1 million cash bail and asked him to provide two contact persons.
Mr Muga is charged with defrauding international Safari Rally driver Bernhard Ten Brinke of US$1,567,120 (Sh170,816,734), pretending he would sell him 500kgs of the precious metal.
It is alleged that Mr Muga committed the offence between September 1, 2020 and January 21, at an unknown location and with others not before court.
The second charge says that on January 15, with intent to defraud, he went ahead and obtained that amount of money.
Mr Muga, who had spent a week at the Industrial Area remand prison for failing to raise the Sh5 million, denied defrauding Mr Brinke, a Danish man.
While pleading for the cash bail to be reduced, the accused said he would languish in remand prison as neither he nor his relatives could raise the amount.
“Muga has been languishing at the Industrial Area prison since he cannot raise the hefty bail or Sh10 million bond with one surety,” he said through defence lawyer Stanley Kang’ahi.
Mr Kang’ahi pleaded for mercy, saying his client had tried for a week to raise the money.
“Given the harsh economic times catalysed by the Covid-19 pandemic, the accused will not be able to raise the huge bail terms,” the lawyer said, further urging the magistrate not to be swayed by the amounts appearing in the charge sheet.
The court also heard that bail should not be punitive as this would amount to denying the accused his constitutional and fundamental rights as provided for under Article 49 of the Constitution.
Mr Kang’ahi also noted that the principal charge is of conspiracy to defraud the complainant and that the accused was last week released on a police bond of Sh400,000 before taking plea.
In response to the plea, prosecuting counsel Anderson Gikunda said the terms granted by the court last Friday were commensurate with the amounts allegedly lost.
Mr Gikunda, however, said the court could exercise its discretion in the interest of justice.
Mr Muga, who was charged before senior principal magistrate David Ndungi last Friday, denied two counts of obtaining money by false pretences and conspiracy, with the intention of committing fraud.
At the time, Mr Ndungi ordered the investigating officer to return to the accused, in open court, the Sh400,000 for use as part of the cash bail required.
The court thwarted a bid to extend the police bond terms into the case “ as circumstances had changed”.
At the time, Mr Brinke’s lawyer, Isaack Ouma Rene, opposed the accused's release on lenient bail terms saying the rally ace lost a "colossal" sum in the fake gold deal.
Mr Ndungi acknowledged that bail is a constitutional right but noted that the courts have their own guidelines to follow.
He also noted that the amounts alleged to have been lost were huge and that the Sh400,000 police bond was too little in comparison.
In the fresh ruling, Ms Mutuku noted that the purpose of bail/bond is to ensure one attends court sessions during the trial. She revised the bail downwards to Sh1 million.
The case will be mentioned on July 22 for pre-trial directions to be issued and hearing dates set.