Mombasa businessman accused of forging late father’s signature to get loan
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Senior Resident Magistrate David Odhiambo issued an arrest warrant after Asif Akbar Mohamed Haji Ali failed to appear in court.
What you need to know:
- The criminal case was scheduled to come up in court for plea-taking on December 2, 2024, but was deferred to December 9, when once again, Mr Asif failed to appear in court.
- This compelled the prosecution to apply for his arrest. The matter will be mentioned on February 3, 2025.
A Mombasa businessman accused of forging his deceased father’s signature in a loan deal worth £80,000 (about Sh12.8 million) is at risk of arrest after a court order was issued against him.
Senior Resident Magistrate David Odhiambo issued an arrest warrant after Asif Akbar Mohamed Haji Ali failed to appear in court to plead to the charge on December 9. The accused had secured a police bond, but failed to appear in court three times.
The charge sheet presented in court indicates that Mr Asif, with intent to deceive, forged the signature of Akbar Mohamed Haji Ali (deceased), on the memorandum of loan agreement dated July 8, 2019, purporting it to be a genuine document.
He is jointly accused, with others not before the court, of allegedly committing this crime on July 8, 2019.
According to the loan agreement, which was subjected to investigations, Mr Asif loaned his father the sum to advance a mining business that the deceased was allegedly running in Voi, Taita Taveta County.
"Whereas the Lender is a son to the Loanee in willing and ready to advance a friendly loan for a sum of 80,000 sterling pounds to the Loanee, and the Loanee at his request is willing and desirous of being advanced the friendly loan to advance his mining business in Voi County for a sum of 80,000 sterling pounds," the document stated.
“The lender and the loanee have agreed that the loanee shall repay the said friendly loan for a sum of sterling pound 80,000 within 24 months from the date of execution of this agreement.
“Time shall be of the essence in respect of the loanee’s payment obligations and the payment shall be made free and clear of all deductions, set off, and or counterclaim,” said the loan agreement allegedly signed between Asif and Haji.
The loan terms further provided that neither interest nor any additional charges would accrue on the loan amount.
It also stated that in the event of default by the debtor in repaying the full loan sum within the agreed period, the lender would have the right to pursue all legal avenues until the loan was fully repaid.
“The parties are in consensus that notwithstanding the provision of the clauses in the agreement, it remains the responsibility of the loanee to ensure that the repayment is made strictly per the timelines.
“No failure or indulgence granted by the lender shall be binding upon the loanee or be deemed to constitute a waiver or novation of any of the rights of the loanee as set out herein,” said part of the agreement.
Haji died on November 21, 2019 at Pandya Hospital in Mombasa.
The loan agreement was discovered after the family sought to organise his estate for distribution to all the beneficiaries.
Documents filed before the Kadhis Court show that Mr Asif sought orders to stop the distribution of his father’s estate and a review of an earlier judgment delivered by the Muslim court.
He wanted the judgment to indicate that he was to be paid Sh800,000 for a debt he cleared at Pandya Hospital and the £80,000 friendly loan that he had allegedly advanced to his deceased father through the memorandum of loan agreement dated July 8, 2019.
On March 12, 2021, the Kadhi’s Court delivered a judgment distributing the deceased’s estate to the respective beneficiaries.
However, Mr Asif filed an application under a certificate of urgency on October 19, 2022, to stop this process due to the unpaid debt.
“During the proceedings, a debt of £80,000 payable to the applicant (Asif) was left out and was not considered during the distribution.
“As the administrators are currently distributing the estate, the court must make an order to stay any further distribution exercise pending the hearing and determination of this application so that this application is not rendered moot,” said Mr Asif through his advocate, Mark Mwanzia, in an application filed on October 19, 2022.
Mr Asif, however, later filed a notice to withdraw this application on March 17, 2023, stating that his withdrawal was due to a request by the family to forgo the said claim, which he agreed to and abandoned.
However, his other siblings applied for the loan agreement document to undergo forensic investigations due to claims that the document was a forgery.
The Kadhis Court ordered these investigations, and upon conclusion, the Directorate of Criminal Investigations (DCI) forwarded the file to the Office of the Director of Public Prosecutions (ODPP), who approved the charge of forgery.
The co-administrators of the deceased estate, however, have also filed a formal complaint with the police bosses in Mombasa, questioning why Mr Asif has not been arrested and presented in court to take a plea.
Through advocate Khalid Salim, Ms Hamida Banoo Akbar, a co-administrator, lamented that the police had failed to enforce the arrest despite the charge sheet being registered in court.
"Despite our repeated efforts, the OCS failed to arrest the accused, who, due to his dual nationality, subsequently left the country," said the advocate in a letter to Mombasa County Police Commander George Seda.
In the letter dated January 23, the advocate expressed frustration over the continued delay in effecting the arrest, which he argued undermines the pursuit of justice and raises concerns about potential foul play or neglect in executing court orders.
According to the advocate, his client is deeply frustrated by the lack of action on the part of the police in executing court orders.
"The lack of progress in these matters compromises the integrity of the judicial process and risks eroding public confidence in the justice system.
“Therefore, we respectfully request the urgent intervention of your office to ensure that the OCS carries out his duties effectively and does not facilitate evasion of justice," said Mr Khalid.
The criminal case was scheduled to come up in court for plea-taking on December 2, 2024, but was deferred to December 9, when once again, Mr Asif failed to appear in court.
This compelled the prosecution to apply for his arrest. The matter will be mentioned on February 3, 2025.