By Sam Alfan.
A Nairobi court has declined a request by Director of Public Prosecutions Renson Ingonga to with forgery charges against lawyer Guy Elms Spencer.
Milimani Senior Principal Magistrate Benmark Ekhubi rejected the application to withdraw the case and directed Spencer to answer to the charges leveled against him.
“I direct the accused person to proceed to take plea,” ordered Magistrate Ekhubi.
Magistrate Ekhubi noted that it was the second time the DPP had sought to withdraw or discontinue the charges against the lawyer, who is accused of forging the Will of Briton who died more than a decade ago.
“To avoid this awkward situation where the DPP speaks from both sides of the mouth; Now we have a case now we don’t or where the office is indicted of arbitrarily, unexplained, capricious and whimsically withdrawing charges against accused persons, there ought to be systems for consultation with the investigation officer’s and the victim before arriving at that decision and also in tandem with “Guidelines of Decision to Charge 2019,” said the magistrate.
The court said the case will proceed having established that the victim or complainant was not consulted and pertinently that the civil/succession proceedings does not bar the continuity of the case.
The Magistrate said that it is axiomatic therefore, that the existence of a civil matter does not impede or bar criminal investigation or proceedings.
“The distinctiveness in the instant matter is that the High Court has rendered a decision on the validity of the Will. In spite of that, equally notable is the very fact that the appellate process in the Succession Cause has not been exhausted and therefore, the determination of the High Court on the validity of the Will is not incontestable,” said Magistrate Ekhubi in the decision.
While opposing the DPP application to withdraw the charges against lawyer Spencer, the complainant Agnes Kagure through his lawyer Wandugi Kiraithe told the court that she was not consulted before the application was instituted.
Lawyer Wandugi told the court that DPP’s decision was an abuse of his powers.
“We are opposing the withdrawal of this matter. You are now on the grounds that the action by the OPP is in bad faith. It is in blatant disregard of the public interest,” lawyer Wandugi submitted.
The DPP made an application to withdraw the criminal case against the Briton, saying that the validity of the Will, which forms the basis of the case, had been sanctioned by the High Court.
But Kagure submitted that the DPP’s about-turn was an abuse of the authority and completely against the public interest.
Wandugi said the prosecution was loudly silent and was avoiding to tell to tell the magistrate that there was a case between the same parties on the same subject, before a city court and which was withdrawn while she was testifying.
“So, it appears you that there are individuals who are not prone to our legal processes. They are sacred cows that the ODPP is hell-bent to protect in whichever way,” lawyer Wandugi told the court.
The lawyer said the DPP was taking the same route in an attempt to withdraw the charges against Spencer.
“Your honor, they are telling you that the ODPP is exercising his powers properly and in good faith. And why? Primarily because there was a succession case. It is true you know there was a succession case but it is trite law that a civil matter and a criminal matter can be heard concurrently,” submitted lawyer Wandugi.
The charge sheet stated that Spencer presented a forged Will in the matter of the Estate of Roger Bryan Robson in the Succession Cause No.955 of 2013, knowing that the testamentary instrument was forged.
It is alleged that he committed the offence is accused on the 30 of October, 2013 at High Court of Kenya in Nairobi within Nairobi City County, with intent to procure himself parcels of land LR. No. 2327/10 and LR. No. 2327/117 both situated in Karen within Nairobi City County valued at Sh.100 million.
He is also accused that on or before the 24 of March, 1997 at unknown place in Kenya, with intent to defraud and without authority, he allegedly made a false Will dated 24th March, 1997, purporting it to be a genuine document signed by the late Rogers.
