By Sam Alfan.
The Director of Public Prosecutions has thrown a high-profile forgery case into fresh controversy after openly declaring in court that he will never prosecute British lawyer Elms Guy Spencer — defying a court order that blocked his earlier attempts to drop the charges.
In a dramatic courtroom moment, Senior Prosecutor Owiti told the magistrate that the DPP has absolutely no intention of proceeding with criminal charges against Spencer, who faces forgery allegations linked to a Sh100 million Karen land deal.
“It is the position of the DPP we don’t intend to proceed with either the plea or with the criminal proceedings,” Owiti told the court, adding that the prosecution equally has no intention of calling any witnesses.
The declaration came just days after the High Court delivered a stinging rebuke to the DPP, dismissing his application to overturn a magistrate’s earlier refusal to allow withdrawal of the charges. Justice Martin Muya ruled that the trial magistrate “cannot be faulted” in blocking the withdrawal, finding “no good reason” to interfere with the decision.
Yet despite losing that legal battle, the DPP appears determined to achieve the same outcome through non-participation, arguing that the constitutional power to institute or discontinue criminal proceedings rests solely with his office — and that no court can compel him to act.
“Not even the court can force him to proceed,” Owiti insisted, suggesting the complainant’s only remaining option is to pursue a private prosecution, which the DPP said it would not oppose.
The move has drawn sharp criticism from the complainant’s lawyer, Wandugi Kiraithe, who also raised suspicions over the timing of a medical report submitted to court recommending bedrest for Spencer, whose absence from court he described as “a deliberate attempt to derail the taking of plea.” Wandugi pressed the court to have Spencer enter a plea virtually, but the magistrate said it could not disregard the doctor’s recommendation.
The case now raises urgent questions about the independence and impartiality of the DPP’s office, and whether powerful or well-connected accused persons can effectively escape prosecution simply by securing the DPP’s silence — regardless of what courts decide.
The judge further vacated orders granted to the DPP to suspend proceedings before the trial court pending appeal as he the appeal has no merit.
Judge Muya ordered the original file to be placed before the Chief Magistrate in February 2026 for directions.
Spencer has been charged with forging the Will of Roger Bryan Robson, who died on August 8, 2012.
The court noted that there had been other attempts to withdraw the charges and in both instances the complainant was not informed before the decision was made.
“This therefore, smacks of a deliberate attempt to sideline the exparte applicant in the important decision of withdrawing charges relating to a dispute concerning matters of land ownership,” Justice Muya said.
The judge further noted that the enactment of the Victims Protection Act elevates the rights of a victim to nearly the same level as those of an accused person, which are constituted in the article 50 of the constitution.
“Section 20(1) (a) of the Act gives the victims the right to give information to police or prosecution on decisions whether or not to lay a charge or to appeal or withdraw. In this instant case the rights of the victim were not put into consideration asrequired while withdrawing the case,” ruled the judge.
In the appeal, the DPP faulted the trial court’s decision as incorrect, improper and illegal in the circumstances as the prosecution provided a proper justification for its application for withdrawal of criminal case.
“This Court be pleased to raise the impugned ruling and substitute the same with an order allowing the DPP application for withdrawal of the subject criminal case against the respondent as was sought before the trial magistrate,” urged DPP.
Magistrate Ekhubi had rejected the application to withdraw the case and directed Spencer to answer to the charges leveled against him.
The trial court noted that it was the second time the DPP had sought to withdraw or discontinue the charges against the lawyer.
“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.
