A lawyer has lost the second bid to block his prosecution over alleged forgery of a deceased’s will in the sale of a Sh500 million five-acre piece of prime land in Nairobi’s Karen area.
After justice George Odunga dismissed a constitutional reference lodged by lawyer Guy Spencer Elms on June 14 seeking to quash his criminal prosecution, the lawyer returned to the same judge pleading for more time pending determination of his intended appeal.
Mr Spencer urged justice Odunga to extend the temporary conservatory orders or grant him a temporary injunction restraining the Director of Criminal Investigations Department (DCID) and the Director of Public Prosecutions (DPP) from arresting and prosecuting him.
He told justice Odunga that he was apprehensive the crime busters might arrest, detain and arraign him in court on charges related to the written will of Mr Roger Bryan Robson (deceased) despite his pending appeal to stop the criminal trial.
A businesswoman who is accusing Mr Spencer of fraud, Ms Agnes Mugure, claims she bought the disputed piece of land from the original owner, Roger Bryan Robson, for Sh100 million in 2011 but said the lawyer was planning to transfer the property to himself and dispose it.
However, justice Odunga declined to issue the injunction saying the trial of Mr Spencer was yet to take off and furthermore, he had not been charged.
“When and if that happens, he would be entitled to bail,” justice Odunga said.
Mr Spencer had contended that his intended appeal was arguable, well grounded and with a high probability of success.
He said he stood to suffer great prejudice and irreparable loss in terms of unprecedented embarrassment if he was arraigned in court.
When the lawyer first appeared in court in June, the judge threw out his application to stop his trial and ruled that he ought to prove his innocence before the criminal court.
The judge said Mr Spencer had failed to persuade the court that his looming prosecution had any procedural irregularities.
“Our criminal process entails safeguards, which are meant to ensure that an accused person is afforded a fair trial,” justice Odunga ruled.
Consequently, the judge urged Mr Spencer to subject himself to the criminal case, arguing the lawyer had the option of appealing the decision if he was unhappy with the proceedings.
The land parcel has been entangled in ownership dispute between Mr Spencer and Ms Mugure with the former claiming he took charge of the property following the death of Mr Robson.
He argues the land and its title instruments were passed to him by Mr Robson in a will dated March 24, 1997.
Mr Robson, who died on August 8, 2012, is alleged to have authorised the sale of property and directed that the proceeds be used to support needy children and in environmental conservation.
But Ms Mugure claims she bought the property from Mr Robson in 2011, one year before he died.
The lawyer is urging the court to restrain Ms Mugure from acting as the property owner and be compelled to demolish the wall and other structures on the land.
He also wants the court to declare him the rightful owner of the land.