Director of Public Prosecutions (DPP) Noordin Haji can withdraw a criminal case without consulting complainants or without furnishing the court with new evidence that has informed his decision, a magistrate has ruled while dismissing charges against lawyer Guy Spencer Elms.
Chief Magistrate Roseline Oganyo has ruled that the courts can only interfere with the DPP’s decision to seek withdrawal of criminal cases if there is evidence that the move will infringe on rights of a party to the suit.
The criminal charges Mr Elms has been battling for the last two years surround a piece of land in Karen that has pit the lawyer and the estate of his former client Roger Bryan Robson against Nairobi businesswoman Agnes Kagure.
Mr Elms was charged on September 7, 2017 after detectives from the Directorate of Criminal Investigations, then under Ndegwa Muhoro, claimed that the lawyer forged Mr Robson’s signature on a will.
The detectives claimed that two document examiners had determined that the signature on the will Mr Robson was to execute was fake.
Ms Oganyo postponed hearing of the case three times last year, after Ms Kagure testified using documents that had not been furnished to Mr Elms’ defence team.
But on February 27, 2019 as the hearing was set to start after Ms Kagure furnished Mr Elms’ legal team with all documents she was to refer to, the DPP’s office asked the magistrate not to proceed with hearing of the matter.
Mr Haji’s office argued that new evidence had come to light and which damaged possibilities of successfully prosecuting Mr Elms’ case.
The evidence was another document examiner’s report done last year contradicted the forgery claims.
Mr Robson’s death in 2012 has left the courts with a question — did he want the property sold and proceeds donated to environmental initiatives, or had the British businessman sold the land to Ms Kagure a year before his death?
Mr Elms, also a British national with Kenyan citizenship, is the listed executor of a will in Mr Robson’s name which stated that the land should go towards environmental preservation.
But Ms Kagure holds that she bought the land from Mr Robson in 2011 and paid Sh100 million in cash for the property.
The charges had been approved by former DPP Keriako Tobiko.
Mr Haji however moved for the withdrawal through Section 87(a) of the criminal procedure Act which does not rule out future prosecution in the event new evidence is found.
Ms Kagure had claimed that Mr Haji’s office must consult her before asking the magistrate’s court to withdraw the case. The businesswoman and aspiring deputy Nairobi governor had claimed that Mr Haji’s office went behind her back and trampled her rights.
She also wanted the magistrate to compel Mr Haji to produce the new document examiner’s report in court.
But magistrate Ms Oganyo held that the Constitution allows Mr Haji’s office to withdraw criminal charges against a suspect at any point before a judgment has been delivered.