The DPP yesterday applied to withdraw the criminal case against a lawyer facing charges of forging a Will in connection to a prime land in Karen estate.
He said that he has new evidence including a document from National Land Commission in which he wants to rely on as the investigations to the case starts afresh.
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The complainant Agnes Kagure who was ready to testify in the case and give evidence was stood down after the prosecution said they wanted to withdraw the case.
DPP said he wanted the case to start afresh.
The prosecution said that following that arraignment of the accused Guy Spenser in court they have since received new evidence from the persons who were supposed to record statements.
“The statements were to be the root cause of this case and we also need to review what is in the file,” said the prosecutor
She added that to avoid abuse of court process, they are requesting the matter to be withdrawn pending a comprehensive investigation because they have received a couple of documents that will be used in this matter.
The prosecutor said that they were basing their case on Document Examination report but they have now received some other documents from the National Land Commission which are contradictory to what document examiner had said.
She added that the DPP has requested to review the files and requested the court to withdraw the matter so that the file can be forwarded to DCI for review.
The defense opposed the application by the DPP claiming that the document from a public office cannot be used to solve a matter involving a private land.
Kagure’s lawyer Wandugi Karathe told the court that they have just been ambushed with that application and that his client was ready to testify.
“The document from the NLC which the prosecution want to rely on had earlier been quashed by the high court,” said Wandugi.
He said they have been surprised by that development from the side of the prosecution.
Wandigi told the court that they had earlier come into this proceedings under victim protection act.
He added that the DPP under new guidelines though he has control of the prosecution, he lacks discretion in which the prosecution should be conducted under victim protection act.
Wandugi said that the DPP cannot act in complete ignorance of the right of the complainant.
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He also told the court that they have a right to know about the new evidence and developments that are affecting the progress of the case.
Wandugi added that the property in question is a private land and he could not understand why NLC document is required in this case.
He said the matters i this case are weighty and cannot be done by a casual response and the court should ensure the cause of justice is done to all the parties.
Laywer Spencer through his lawyers Oscar Gitoro and Newton Osiemo objected the application by the prosecution and said that if the prosecution does not have enough evidence they should close the case.
They said that they were ready to proceed with the hearing and the letter that the prosecution wants to rely on is a subject of a Judicial Review in another matter and prosecution is abusing the rights of the acccused.
In Objection,Osiemo said he would like to submit more documents and he requires more time to file.
Osiemo said the said NLC document has already been shared in other court proceedings.
The magistrate granted leave for Spencer to file an affidavit to show when the documents were shared.
Spencer Elms in the case is being accused of forging the Will of late Roger Bryan Robson, with intent to defraud. It is alleged that he committed the offense on or before March 24, 1997.
The court further heard that Mr Spencer presented the forged will to Corporal Samuel Kamau at the Directorate of Criminal Investigations headquarters, claiming that it was a genuine document on February 10, 2015.
The advocate is also accused of forging the power of attorney dated January 28, 2010 claiming it was signed by Mr. Robson.
The matter will be heard on July 19, 2019