By Gitahi Ngunyi
A forgery case against Nairobi lawyer Guy Spencer Elms that was dismissed on March 20, 2019 by Nairobi Magistrate Court sitting at City Hall is a classic story of how Kenyas rich and politically connected individuals can abuse the court system to grab properties belonging to people perceived to be weak either because they are poor or they come from minority ethnic group.
In the criminal suit, a nominee for Nairobi Deputy Governor Ann Kagure Kariuki who has been accused of grabbing a land belonging to a deceased client of Elms had filed a complaint with the Department of Criminal Investigation (DCI) claiming the lawyer had forged the Will and signature of the late Roger Bryan Robson granting himself the power of the executor of the Will.
The then Director of Public Prosecutions (DPP) Keriako Tobiko charged the lawyer with five counts forgery.
A review of the proceeding in the case and the grounds cited by DPP Noordin Haji in seeking to terminate the case in July last shows the case was not supposed to have been filed in the first place.
But in this case a combination of powerful connections in criminal justice system in Kenya, greed and corruption saw to it that case was filed at all costs leading to the three year travesty that was finally terminated on Thursday.
One does not need to be a lawyer to see that the case was doomed from the onset. There is no way any lawyer who has gone through a proper law school and who carries a genuine advocate practicing certificate would have failed to see the gapping loop holes in the investigations conducted by Department of Criminal Investigations (DCI) then headed by Ndegwa Muhoro.
The biggest of loopholes is the fact the investigators did not record statements from people who knew Robson or the law firm that drafted the will in question.
It is also curious that the investigators did not establish the motive of the alleged forgery since Elms who was accused of the crime was not named in the will as a beneficiary of Robsons estate. The only beneficiaries named were environmental and child welfare charities.
Why Tobiko and Muhoro chose to subject the court to the charade even when the weaknesses of the case were so obvious is a matter that only the then two of the most powerful people in Kenyas criminal justice system can explain.
Instructively, the DPP cited defectiveness of the prosecution evidence when he sought orders from the court to terminate the case.
But lets start from the beginning.
Elms had been long time lawyer for Robson, a son of British immigrant who came to Kenya in the 1920s. Robson was a modestly wealthy with properties in Karen and Upperhill areas of Nairobi. As is wont to happen as people advance in age, Robson instructed the law firm of Archer & Wilcock to draw up a will in which the Elms was to be named the executor of his estate which included the two properties.
In the will, Robson instructed Elms to sell part of the proceeds from the estate to go to his nephew in the UK and the rest his estate and donated the proceeds to causes orof organizations supporting environmental conservation, wild life, children welfare and health of the poor.
Robson died in 2012 aged 71 without a wife or children.
One morning in 2013, Elms wokerk up to the news that strangers were erecting a perimeter wall around the property of the late Roger Bryan Robson.
After a quick enquiry on the trespassers, Elms learnt the workers who were putting up the fence had been hired by Kagure who was now claiming ownership of the property.
Elms first instinct was to call in the police to get the trespassers out of the property. His first stop was Karen Hardy Police Station starting of a chain of events that spiraled into criminal case that was dismissed by Magistrate Roseline Ongayo.
It was at the Karen Hardy Police Station that Kagures intention to use state officers begun to show. At first, the officers in charge would not record Elms statement and when they finally did, they failed to conduct investigations on the case.
With the police not willing to investigate the case, Elms went to the High Court where the presiding judge ordered Kagure to vacate the land until the suit filed by the lawyer was heard and determined.
Again, the officers at the same Police Station were not available to enforce the court orders. Why the police failed to act on the court order is anybodys guess.
In a clear case of impunity and contempt of court facilitated by state officers, Kagure still occupies the property in spite of the court order issued six years ago.
In the meantime, as the case that Elms had filed in the High Court was proceeding, Kagure hatched the plot to discredit Elms as the executor of Robsons will.
Had the plot gone her way, the biggest obstacle to her attempts to grab the property, would have been eliminated. The plot was simple; use connection at the Ministry of Lands, DCI and ODPP to cook up evidence to convince judges that Elms forged the will.
For the last three years, officers from the three government departments played ball from Kagures court even testifying in court to back up the forgery charges and submitting a forensic report that suggested the signature on the contested will did not belong to Robson.
What Kagure who is a former insurance sales agent did not anticipate is how the appointment of Noordin Haji and George Kinoti to the positions of DPP and DCI would affect her case against Elms.
The two have been working overdrive to redeem the battered images of their offices.
In July last year, the DPP filed motion to withdraw the case on the grounds that the office had reviewed the file of the case and encountered new evidence that would have adversely affected the prosecutions case if it was allowed to proceed.
Elms lawyers feel Kagure and state officials who played her game in the case intended to use the fabricated charges to defeat the case that the lawyer filed against her in the Environment and Lands Court in 2013.
Its notesworthy that the institution and prosecution of the case was intended to assist a party to settle a civil claims and scores against Guy through criminal proceedings, said Elms lawyers Oscar Litoro and Victor Omwebu in a press statement on the day the case was dismissed.