A criminal case involving a property worth over USD 5 million was yesterday resolved by Nairobi City Court Magistrate Joseline Ongayo when she granted Director of Public Prosecution (DPP) permission to withdraw the case filed by a controversial businesswoman Agnes Kagure who had accused lawyer Guy Spencer Elms of forgery.
Magistrate Ongayo’s ruling followed DPP’s two applications to withdrawal the case after a review of the evidence provided was found to be insufficient and also after the office noted it had received new conflicting evidence.
In his submission before court the DPP through Senior Prosecutor Jared Okello noted that according to Article 157(10) and (11) of the Constitution it was well within DPP’s powers to review the provided evidence for this case. He further noted there’s no law that bars the prosecution to review a case at any given period and exercise his powers to terminate a case at any stage before Judgement. Jared also submitted that the DPP in exercise of Article 57(10) of the Constitution, is not subject to control or direction of any authority or person. He further said the DPP only needs permission of the Court under Article 157(6) of the Constitution to facilitate exercise of his powers under Article 157(11) of the Constitution to guard against abuse of legal process, fair administration of justice and public interest.
In her ruling, the magistrate noted that, “My determination to withdraw this case is based on the fact that I find the DPP’s action was influenced by the information in his office by perusal of the file presented in court before making the application. I also do not find it necessary to ask for the piece of new evidence as this is in the backdrop of the fact that the court cannot dictate what evidence the prosecution is to bring at any point before it in the criminal trial process.”Magistrate-Joseline-Ongayo-Ruling-for-Guy-Spencer-on-March-20-2019-1
Mr Elms, a lawyer with Raffman Dhanji Elms & Virdee Advocates had been charged with five counts of forgery including forging a Will of his client, the late Roger Bryan Robson who died on August 8, 2012 and owned two properties located in Karen and Upper Hill, prime areas in Nairobi, Kenya.
Both British nationals holding Kenyan citizenship, their relationship began after Mr. Robson’s engaged Mr Elms to draw up his Will in 1997 which would see proceeds from his estates awarded to his English nephew based in the UK and charitable organisations in Kenya involved with environment, wildlife and education.
The well connected Agnes Kagure, also a mysterious billionaire however accused Elms of forging documents in his efforts to transfer ownership of the mentioned properties to himself. She further went to court claiming to have bought the Karen property on November 18, 2011.
As Kagure relied on powerful unscrupulous forces in government and goons to intimidate the lawyer, her motives were scrapped by several witnesses including renowned lawyers who signed affidavits presented in court to show support for Guy Elms course of diligently serving a client as well as to prove authenticity of the documents following their involvement in the process.
Notably, forensic investigations by National Land Commission (NLC) contradicted Ms Kagure’s claims indicating that the signatures on the 1997 Will were genuine and that forged signatures were actually on the transfer of shares documents that Kagure claimed Mr Robson signed in 2011, just before his death. The conveyance that Kagure relied on in fact was not stamped and registered until November 6, 2014.
Mohammed Khan, the advocate that acted on behalf of Habib Bank (now Diamond Trust Bank) at the time took to the witness stand to testify that the late Roger had borrowed money from the bank and had put a mortgage on the said property.
This implied that the property could not have been conveyed to Kagure as it was still mortgaged to the Bank at the time Robson died. Khan also observed that there was a discrepancy in the numbers for the conveyance document presented in court by Kagure confirming it was patently false.
Another witness, Ann Malulu, a partner at Archer and Wilcock advocates confirmed to the court that Roger Robson had been a client at the firm and that the Will was prepared there according and was witnessed by two secretaries.
As for the Upper Hill property, third witness John Masese, also an advocate verified to the court that the document presented before the judge with his stamp and signature was a forged share transfer.
Magistrate Ongayo’s decision to grant the DPP his wish to dismiss the case, and the DPP’s adamancy to close the case in a dignified manner is a clear depiction of his determination to rescue the vulnerable. It also shows his efforts in decongesting the judicial system which is reported to have a total of 327,928 as backlog cases, 260,653 of these being at the Magistrate Court and 76,208 at the High Court.Lawyers-statement-on-withdrawal-of-charges-against-Guy-Elms
Commenting on the ruling’s outcome, Guy Elms legal team stated;
“The significant development of this case is not only a reprieve to my client but also restores a lot of faith in the office of the Director or Public Prosecution. We have been at this case since 2016 and it is only the new holders of the office that have established the lack of evidence that makes this a classic case of abuse of legal court and our judicial system, which the DPP has reviewed and exercised his powers under Article 157(6) and (11) of the Constitution to terminate.
Mr. Elms has been a subject of attacks both on his person and his character for the last three years. He has been defamed, threatened, shot at and even coerced by land cartels into handing over documentation that are key to this matter. With the false accusation of forgery behind us, we are now hopeful that the other related matters will be expended it fairly quickly and this matter can be put to rest and my client can finally execute the Will for which he was rightfully appointed the executor.”