A former Fina Bank manager and two businessmen will each serve 18 months in prison if they fail to refund Sh15 million stolen from the lender within one year.
Chief Magistrate Francis Andayi found Don Bosco Gichana, Graham Sagwe, Robert Moseti and Obadiah Nyambane guilty of theft, but gave them 12 months to return the money that was irregularly diverted from the bank in 2010.
The judgment concluded an 11-year-old case that sought to unravel the heist that was allegedly hatched by controversial politician Don Bosco Gichana.
The court heard that the heist was masterminded by Mr Gichana and Mr Sagwe and that Sh96.7 million was stolen from Fina Bank.
Money paid by a Chinese firm into an account at Fina Bank was diverted to Malch Construction, which was owned by Mr Gichana.
The money was diverted to an account operated by Malch Construction at Eco Bank.
Convicted fraudsters
Mr Andayi ordered that Sh4.5 million deposited in court as cash bail for the convicted fraudsters be paid to the bank, which now trades as Guaranty Trust Bank (GTB).
This means that Mr Sagwe and Mr Moseti will have to pay Sh10.5 million within 12 months.
“If you will have not paid the Sh10.5 million by January 10, 2023 just take yourselves to the prison to serve the 18-month sentence,” Mr Andayi told the convicts.
Despite being implicated in the theft in court proceedings, Mr Gichana was not charged.
Gladys Moraa, a director with Malch Construction and one of the suspects who were acquitted, told Mr Andayi that Mr Gichana hatched the plot to steal the money and that she neither participated in nor benefitted from the heist. Ms Moraa is Mr Gichana’s sister.
After the money was diverted to Malch Construction, Sh80 million was transferred to two lawyers – Albert Kuloba and Ian Maina.
But the two returned the money to Fina Bank, a move that helped them avoid prosecution for aiding the theft.
Masterminds of fraud
Mr Sagwe tricked the directors of Chinese-owned Garden Real Estate Development Ltd into letting another employee fill the electronic funds transfer forms that were used to divert the payment to Mr Gichana’s firm.
The Chinese firm was purchasing a piece of land valued at Sh102 million.
When the property seller’s lawyers, Macharia-Mwangi & Njeru Advocates, did not receive the Sh96.7 million from the Chinese company, the alarm was raised and the fraud scheme fell apart.
Mr Andayi said in his judgment that evidence showed that Mr Gichana and Mr Sagwe were the masterminds of the fraud.
Mr Andayi handed down the non-custodial sentence after the men said they were remorseful and had reformed during the trial.
“I note that the accused attended court religiously for the last eleven years,” Mr Andayi said.
The magistrate said the suspects had been directed by Justice Mohamed Warsame in 2010 to return the money, which had been distributed among five people after it was rerouted from Fina Bank to Malch’s account with Eco Bank.
Non-custodial sentence
“After lawyers Albert Kuloba and Ian Maina returned the money received by their law firms, charges filed against them were dropped, then they were cleared of any wrongdoing by Justice Mohamed Warsame,” Mr Andayi said.
Prosecutors had initially lined up 53 witnesses but cut the number down to seven after most of the money was returned to Fina Bank.
“The maximum sentence for the offences against the accused of conspiracy to defraud and theft which the accused have been convicted of is three years without the option of fine,” the magistrate noted.
“However, I will sentence each of them to serve 18 months, but I will suspend the term for 12 months to give room to the convicts to repay the balance of Sh15 million to the last cent as they had promised when they were put on their defence.”
Mr Andayi, who was transferred to Nyeri from Milimani, returned to deliver the judgment on January 10.
The convicts expressed remorse in their mitigation through lawyer Ishmael Nyaribo, who pleaded for a non-custodial sentence.
Guaranty Trust Bank acquired Fina Bank in 2014, four years after Mr Sagwe, Mr Moseti, Mr Nyambane and Ms Moraa were charged.
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