By Sam Alfan.
British lawyer Guy Elms Spencer has scored a big win after the High Court temporarily halted his scheduled plea-taking in a Sh100 million Karen land forgery case.
Justice Martin Muya issued a temporary order barring the prosecution from charging Spencer with forgery allegations, until October 13, 2025 when his case will be heard.
Spencer filed a review application in the High Court, seeking to overturn the decision by trial court Benmark Ekhubi, who had earlier rejected an application by the prosecution to withdraw the case.
The lawyer moved to the High Court after the magistrate declined a request by Director of Public Prosecutions (DPP) Renson Ingonga to withdraw the forgery charges.
Spencer had pleaded with the court to postpone the plea-taking date, but the magistrate declined.
In his application, Spencer argues that the magistrate misdirected himself on the law and facts, and relied on irrelevant considerations in rejecting the DPP’s request to drop the charges.
He contends that the magistrate’s decision was based on the claim that the complainant was not consulted before the withdrawal of charges—despite overwhelming evidence to the contrary being submitted and acknowledged in the ruling.
Spencer further argues that the magistrate disregarded a High Court judgment delivered on June 19, 2025, in Milimani HCF P&A No. 955 of 2023.
The judgment had dismissed the complainant’s similar allegations of forgery regarding the same will at the heart of the current criminal case and upheld the validity of the Will.
According to Spencer, the magistrate’s failure to consider this judgment while insisting that the criminal trial proceed constitutes a misapplication of Section 193A of the Criminal Procedure Code and goes against established judicial precedent.
“The magistrate’s decision requiring me to plead to charges relating to the alleged forgery of a will—despite acknowledging that doing so would amount to sitting in appeal over a High Court judgment that already dismissed similar claims—was a clear misdirection of the law and a miscarriage of justice,” Spencer told Justice Muya.
The Nairobi-based British lawyer argues that the magistrate’s ruling violates his right to a fair trial, particularly the protection against double jeopardy as guaranteed under Articles 27 and 50(1) and (2) of the Constitution of Kenya.
He further told the court that the magistrate’s ruling reflected a failure to consider relevant legal principles, an overreach of jurisdiction, and a misinterpretation of Article 157(11) of the Constitution, resulting in a plainly wrong and unjust outcome.
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.
