DPP appeals order on lawyer Guy Elms Spenser row over Sh 100 million Karen land

The Director of Public Prosecution Renson Ingonga, has escalated the Sh100 million land row pitting lawyer Guy Spenser Elms against politician Agnes Kagure.

The DPP in his case filed before Criminal High Court Judge Kanyi Kimondo said that Milimani Magistrate Benmark Ekhumbi erred by failing to allow his application to terminate the criminal charges.

This was after the Family High Court’s judgment that the will at the heart of the criminal case was valid.

In the case, Principal Prosecution Counsel Victor Owiti said that it would be an exercise in futility to continue with the case of making false document as Justice Hillary Chemitei was clear that the Will left by Rodger Bryan Robson, and dated March 24, 1997, was authored by him.

He argued that despite Ekhumbi acknowledging there was a verdict regarding the Will by a higher court, he still declined to have the criminal case terminated.

According to Owiti, it would also have not made any difference even if the DPP consulted the investigator or Kagure as the magistrate ruled.

“With the decision of the Succession Court on the validity of the subject Will, and the obvious effect on the viability of the charges, and the clear fact that none of the charges would subsequent to the decision of the Succession Court be sustained with a realistic prospect of a conviction, not even a consultation with the victim would have changed the circumstances,” said Owiti.

At the High Court, Justice Hillary Chemitei said there was no evidence to show that Bryan was forced or was not in his right state of mind when he wrote the Will on how he wanted his earthly possessions to be distributed.

"I have perused the original Will on record and in my view, there is nothing to fault. It was executed by the deceased and as a matter of fact, he signed all the pages. The same was witnessed by two persons and was drafted by an advocate,” said Justice Chemitei.

Spenser has been in a tooth-and-nail battle in court, trying to guard Robson’s wealth. He was charged over the same property but the criminal case was dropped in 2019. However, Ingonga reinstated the charges afresh last year.

Bryan died on August 8,2012. He left the Will dated March 24,1997 in which he appointed Spenser and Sean Battye to implement his wishes. He as well made them the trustees. Battye dropped from the roles after leaving the country.

In an intriguing case, Kagure went to court claiming the same wealth.

Haunt's director Thomas Mutaha claimed that Bryan was his family friend and had allegedly transferred to him the property without any sale agreement and for free as a gift.

On the other hand, Kagure, in her case, brought Sergent Felix Kalasya as witness. Kalasya told the court that Mutaha had been charged in 2016 over the same property.

In the meantime, Chief Inspector Susan Wanjiru, another witness, said that different persons signed the Will.

The third witness, Cyrus Ngatia, who told the court that he is a deputy Solicitor General told the court that he had earlier worked as the Registrar of companies and disputed that the signature on the company’s registration was his. He also denied knowing one Lagat.

The sixth witness in the case who argued in favour of Kagure and Haunt was a DCI officer John Muinde who also claimed that the signatures had a variance.

On the other hand, Spenser called Anastacia Kioko, John Masese, Mohamed Khan, Ann Kosgey, Lilian Gathigihia, David Muthee, Japheth Oduor, Nafsya Abdallah and Robson’s brother Michael Fairfax as witnesses.

Fairfax was the star witness in the case. He denied that his brother had either sold the property to Kagure. Other witnesses denied knowing Mutaha.

At the magistrate’s court, she claimed that she was not informed before Ingonga decided to drop the case. The magistrate dismissed the DPP’s application based on this.

Ingonga wants the High Court to allow him drop the case, saying that charging Spenser will be an academic exercise.

“It is in the public interest that the Applicant is granted the permission to withdraw the charges against the respondent not only to uphold the independence of the applicant in the exercise of his mandate, but more importantly to prevent an abuse of the process.

If the stay pending revision is not granted, the prosecutions interlocutory application may be rendered an academic exercise since the matter is likely to proceed to its logical conclusion without correcting the reversible error,” argued Owiti.